Ingram v.Threadgill

• Decision Date: 30 June 1831
• Citation: 14 N.C. 59
• Parties: WILLIAM INGRAM v. HULL THREADGILL.
• Court: North Carolina Supreme Court

14 N.C. 59

WILLIAM INGRAM

v.HULL THREADGILL.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM. 1831

1. Although by the Acts of 1715 and 1777 (Rev., chs. 6 and 114), the beds of rivers and creeks are not subject to entry, yet, where the river or creek is not navigable in the ordinary meaning of the term, the owners of the banks have a several fishery opposite their land, to the middle of the stream.

2. The ebb and flow of the tide is not a proper criterion to determine whether a river of this State is navigable.

3. It seems that a fishery in a river which is not affected by the ebb and flow of the tide, but which is in fact navigable, belongs to the riparian proprietor.

TRESPASS, for fishing in the plaintiff's several fishery. Upon not guilty pleaded, the jury returned the following special verdict:

"That the plaintiff had title to and was in possession of a tract of land, bounded by the Pee Dee River; that the defendant had title to and possession of a tract of land adjoining the plaintiff's immediately below, and also bounded by the Pee Dee; that the defendant, at the time alleged by the plaintiff in his declaration, drew his seine, and did fish with the seine in the channel of the river, and between the channel and theshore, and near the shore where it formed the boundary of the plaintiff's land on that side; that the locus in quo is the main Pee Dee River, about thirty-five miles above the point to which the river is navigable for steamboats; that at the locus in quo the river is about three hundred yards wide and about four and a half feet deep; that heretofore the river has been navigated with batteaux and flats to a point above the plaintiff's land, but that there has been no navigation of that kind for the last twenty years; that about fourteen miles below the locus in quo the river is nearly a mile wide, and is never navigable for batteaux, except in time of high water, and then with difficulty."

Upon this verdict, his Honor, Martin, J., rendered judgment for the defendant, from which the plaintiff appealed.

HALL, J. The Act of 1715 (Rev., ch. 6) declares that where a survey is to be made upon a navigable river or creek, the surveyor shall run a full mile in a direct course into the woods, and each opposite line shall run parallel with the other, if it can be admitted, for other people's lines,

or rivers or creeks. It is provided, also, that not more than six hundred and forty acres shall be laid out in one tract. The Act of 1777 (Rev., ch. 114, sec. 10) declares that where any survey shall be made upon any navigable water, the water shall form one side of the survey. The same act provides the mode of entering and surveying islands in navigable waters. It appears from these acts that the beds of navigable waters, and of navigable rivers and creeks, cannot be the subject of entry and survey. Therefore, the plaintiff in the present case cannot derive title to the fishery in question by grant from the State, as he might do for lands, under those acts of Assembly. And if he has title, it mustbe derived by some other mode of acquisition.

In England a river is said to be navigable where the tide flows and reflows. Where that is not the case, they are said not...