Hampton v. North Carolina Pulp Co.

• Decision Date: 20 February 1943
• Citation: 49 F. Supp. 625
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: HAMPTON v. NORTH CAROLINA PULP CO.

49 F. Supp. 625

HAMPTON v. NORTH CAROLINA PULP CO.

District Court, E. D. North Carolina, Washington Division.

February 20, 1943.

Ehringhaus & Ehringhaus, of Raleigh, N. C., and Carl Bailey, of Plymouth, N. C., for plaintiff.

Norman & Rodman, of Plymouth, N. C., and Lecher, Michael, Whyte & Spohn, and Thomas Stone, all of Milwaukee, Wis., for defendant.

MEEKINS, District Judge.

This is a civil action at law brought by the plaintiff against the defendant in which the plaintiff seeks to recover from the defendant damages in the sum of $30,000 for the alleged wrongful diversion and destruction of fish in the navigable waters of the Roanoke River near Plymouth, North Carolina. A motion to dismiss the cause for failure of the complaint "to state a claim upon which relief can be granted" was heard by me at Raleigh in Term and thereafter briefs were filed in due course.

Well, Fish is the subject of this story. From the fifth day of the Creation down through the centuries, some of which lie behind us like a hideous dream, fish have been a substantial factor in the affairs of men. After giving man dominion over all the Earth, God gave him dominion over the fish in particular, naming them first in order, reserving unto Himself only one certain fruit tree in the midst of the Garden,¹ and Satan smeared that — the wretch! Whatever else we may think of the Devil, as a business man he is working success. He sat in the original game, not with one fruit tree, but with the cash capital of one snake, and now he has half the world grabbed and a diamond hitch on the other half.²

Great hunters lived before Nimrod, who was a mighty one before the Lord,³ and great fishermen before Izaak Walton, whose followers are as numberless as the sands of the sea — not counting the leaves of the forest, as if anybody ever did, or could, except the quondam Literary Digest, which polled itself to death in the late Summer and middle Fall of 1936.

The most notable group of fishermen of all time was that headed by Peter, the impulsive Apostle, and his followers Thomas, Nathaniel, the sons of Zebedee, and two other Disciples, seven fishermen in all — a working majority of The Twelve.⁴

Considered solely as a food product, fish have unlimited possibilities — quantitative and qualitative. We are told that a few little fishes and seven loaves, five loaves and two fishes, according to St. Luke, were more than sufficient to feed a hungry multitude of four thousand men, together with the women and children present, and of the fragments there were seven baskets full of fish.⁵ Quantitative.

Professor Agassiz, the eminent Harvard scientist said: "Fish is a good brain food." One wrote to know "in what quantities should it be taken?" The great scientist wrote back: "In your case, a whale a day for thirty days." Qualitative.

Fish have their place in song and story. In song, from the nursery rime: "Little Fishes in the Brook," to the huge leviathans that forsake unsounded deeps to dance on sands.⁶ In story, since the dawn of civilization and the imagination of man began to build romances and tall tales, full and fruity. He was more wag than skeptic who said: "In all the world there are only three really great fish stories — Admiral Noah, Commodore Jonah and Captain John Smith." Herbert Hoover added the fourth when, fishing in Nevada, he pulled a twenty-five pound trout from the green waters of Pyramid Lake.⁷

Noah built an ark so many cubits high, wide and long. It had one door in the side, and one window in the top twenty-two inches square.⁸ What ventilation! We are told it rained forty days and forty nights and all the mountains were covered with water.⁹ We know that Mount Everest is 29,140 feet high.¹⁰ Since it was covered by the flood, the water reached an altitude of more than 29,140 feet. Divide the altitude by forty and we find that the average rainfall was more than 700 feet per day. How's that for dampness!

Apart from the Biblical account of the flood, many nations have vivid accounts of floods in which all the people, except a chosen few, were destroyed. One account, that points this story, is a fable about a flood in ancient India. A fish warned Manu that a flood was coming. Manu built a ship and the fish towed it to a mountain and thus saved everybody.¹¹ We can laugh at this fable without fear of condemnation here and damnation hereafter. That was not our flood.

Jonah, like all the orthodox Jews of his time, thought Jehovah was a local Deity. Jonah did not like his assignment to Nineveh and in an effort to side-step it he took passage on a ship at Joppa for Tarshish and fled from the presence of the Lord.¹² The Prophet thought that if he could get into another jurisdiction he would be safe. However, before he crossed the boundary line into Tarshish, Jehovah pulled down on him with a double-barrel tempest and a muzzle-loading leviathan.¹³ When he found himself a prisoner, for three days and three nights, in the belly of the great fish that the Lord had prepared, Jonah began to think things over. We all do when our "take a chance" does not pan out as we hoped. The net result was that the Prophet, after repenting of his disobedience and praying forgiveness, was allowed to go ashore. "The Lord spake unto the fish, and it vomited out Jonah upon the dry land."¹⁴ This was before the advent of the camera enthusiast, else we might have been fortified with an authentic photograph of the minor Prophet walking ashore with the lower jaw of the whale for gang-plank. The eminent American Modernist said he was rather inclined to think that Jonah proved too tough for his whaleship's digestion and that in a fit of acute ptomaine poisoning, the cantankerous old Prophet was cast forth.

Captain John Smith, in the minds of many people, is more a joke than a myth. However, patient and interesting investigation has led me to the conclusion that he was not only a great Englishman, but a very great Englishman; that he was not only a great man, but a very great man; that he was good, useful and sane and did a very great World Service. Measured by all the standards of constructive achievement he was essentially a World Man. That Captain John Smith is less a myth than a joke is one of the glaring anomalies of history. Perhaps the raconteur had it in mind to emphasize his facetiousness by fact; to contrast his shadow with substance — his fancy with truth.

The Skeptic may scoff and the Modernist may moderate, but the story of Noah and the story of Jonah are enduring torches that lighted the way of man in his struggle upward through the immensity of the Shadow, and now as then guide the fumbling fingers of the trembling hand as with the establishment and strength of Jachin and Boas.¹⁵

Divested of the insistence of the Fundamentalists on the Verbal Inspiration and Infallibility of the Bible, and accepted in the light of reason, which examines and explains, the story of Noah is the greatest statement on the importance of preparation ever penned by mortal hand. In thunder tones we are warned: in time of peace, prepare for war; in the days of ease and luxury and laissez-faire, remember that evil days are ahead; in the fat years, prepare for the lean ones just around the corner — always be ready "to flee from the wrath to come!"¹⁶

Likewise, the story of Jonah is the greatest statement on fidelity to duty, hard and inexorable, that ever fell from the lips of man. It shouts forth the consequences that follow lapses from duty through wilful disobedience or otherwise. "Duty," said General Lee, "is the most sublime word in the English language."

The fish industry is among the foremost in World Trade. Indeed, in some countries it is the chief occupation of the people and the main source of national income. Through the ages it has developed a lore and nomenclature peculiar unto itself. What is more expressive of failure than, "A Water Haul?" What more charming password for an Ananias Club than, "What A Whopper?" What better synonym for discomfort and disgust than, "Fisherman's Luck," though coarse in translation —classic in application? And where is the Lawyer who has never gone on a "Fishing Expedition?" Who wants to "Fish in Troubled Waters?" A whale of a bargain is a big one. Land Shark suggests Shylock, and Shylock is a type. They are synonymous and offer a perfect illustration of a distinction without a difference. "It Sounds Fishy," means "Its a Lie on Its Face," and much more diplomatic. Everybody knows that "Fishy Smell" as well as the man "With the Codfish Eye." All these terms are as well understood by the Public as are the terms Bulls and Bears of the Stock Exchange. Codfish Tongues and Codfish Sounds mean one and the same thing and are interchangeable terms in the Trade.

As it is the biggest fish that always breaks the hook or bites the line in two, so, here, the huge sum of thirty thousand dollars is asked as compensation for fish that were never caught. I can remember when that sum would buy a lot of fish. I have seen six-pound roe shad retail for five cents apiece and cured herrings sell for two dollars a thousand — one hundred and twenty pounds of shad for one dollar and five herrings for one cent.

And this large sum is now asked for whose Fish? Certainly not the plaintiff's, because he never owned them. I repeat the question, whose Fish? The answer is plain: they belonged to the Public.

Yes, I am fully aware that my fall from the Woolsack, and my break over time's old barrier growth of right and fit;¹⁷ my reluctance to plod on with the solemn brood of care,¹⁸ and my impatience of professional solemnity,¹⁹ may cause the Big Wigs of the Bar to scowl down their displeasure. So be it. Permit me to interrupt myself:

Wigs were introduced in the Courts of England in 1670. A little more than a century ago the modern article was invented, and is made of the manes and tails of horses in the ratio of five white strands to one of black. The advantage is that it...