Rea v. Hampton

• Decision Date: 15 October 1888
• Parties: REA et al. v. HAMPTON et al.
• Court: North Carolina Supreme Court

7 S.E. 649

101 N.C. 51

REA et al. v. HAMPTON et al.

Supreme Court of North Carolina

October 15, 1888

Appeal from superior court, Bertie county; GRAVES, Judge.

Action by J. K. Rea and P. L. Rea, trading as Rea & Bro., against W H. Hampton and J. B. Nicholls, to restrain defendants from removing certain fishing nets, etc., maintained by plaintiffs. There was a judgment for plaintiffs, and defendants appealed.

W. D Pruden, for appellees.

DAVIS J.

This is an appeal from a judgment of GRAVES, J., rendered at the February term, 1888, of Bertie superior court, granting a perpetual injunction, restraining the defendants from removing the stakes of the plaintiffs, under section 3383 of the Code. The plaintiffs, in substances, alleged that they were the owners, of certain traps, and lawfully and rightfully engaged in fishing in the waters of Albemarle sound, near the Bertie shore, and were operating certain traps for taking fish, called "Long Island Fish Traps," and that the defendants threatened to tear down and destroy said traps, and, unless restrained, great and irreparable damage will be sustained by the plaintiffs, and they ask for an injunction. The answer of the defendants admits that the plaintiffs were the owners of certain traps but deny that they were Long Island traps, or that the plaintiffs were rightfully and lawfully fishing in Albemarle sound, and say that they were using dutch or pod nets, and fishing with traps, and within the distance, from the mouth of Roanoke river, prohibited by section 3383 of the Code. The following is the case settled on appeal: "The defendants had applied to the sheriff of Bertie county to remove the nets, etc., of the plaintiffs, in accordance with section 3383 of the Code, alleging the nets of plaintiffs to be dutch nets or pods, nets, and that they were fished within two miles of the mouth of Roanoke river, and were proceeding to remove the same. Thereupon the plaintiffs brought this action to restrain the defendants, and, the same coming on to be heard, and it appearing that there were two questions of fact arising in the case, his honor impaneled a jury to ascertain the same for his information, and submitted them the following issues: Were the nets fished by plaintiffs dutch or pod nets? Were the nets fished within two miles of the mouth of Roanoke river? To both of said issues the jury responded Yes. Thereupon the plaintiffs moved for judgment for a perpetual injunction, notwithstanding the findings of the jury, and the defendants moved for a judgment dissolving the injunction. His honor rendered judgment as requested by the plaintiffs, making the injunction perpetual, as set out in the record."

By section 3383 of the Code it is made "unlawful for any person to set or fish a dutch net or pod net in Roanoke river, Cashie or Middle rivers, or within two miles of the mouth of said rivers, or within one mile of the mouth of any other river emptying into Albemarle sound, *** and all persons who shall set or fish any such net in said sound shall pull up and remove the stakes used for the same by the 1st day of June next succeeding the fishing season. And if any person shall set or fish any dutch net or pod net in said sound in violation of this section, he shall be guilty of a misdemeanor, and be subject to a penalty of three hundred dollars, to be recovered by any person in the superior court of the county in which the offense shall be committed. And the sheriff of such county shall, when requested, remove any portion of such nets set or fished, in violation of this section, at the costs of the violators." The facts found show that the plaintiffs were fishing in Albemarle sound, with dutch or pod nets; and within two miles of the mouth of Roanoke river, in violation of section 3383 of the Code, under which the defendants claimed the authority to have plaintiff's nets removed; but counsel for the plaintiffs insists that the last clause of section 3383 is in violation of section 17, art. 1, Const., and, if so, they had a right to enjoin the defendants. This presents the question: Were the defendants threatening or about to deprive the plaintiffs of any liberty, privilege, or property, contrary to the law of the land. Albermarle sound being navigable, the plaintiffs had no right to a several fishing in its waters, and the state had the undoubted right to regulate the exercise of the common right of fishing therein, and to impose such limitations and restrictions in the exercise of the right as it might deem wise and just. The constitution of the state, unlike that of the United States, contains limitations on, and not grants of, legislative power. Albemarle sound, being navigable, is not subject to entry, and every citizen of the state has the liberty and privilege of fishing therein, subject to such regulation of the right as the legislature may establish. McCready v. Virginia, 94 U.S. 391; Skinner v. Hettrick, 73 N.C. 653; Hettrick, v. Page, 82 N.C. 65, and cases cited. Unless the plaintiffs have some right, privilege, or property in these waters, or some right to obstruct others in the use of them for fishing purposes, under rules and regulations, and by methods allowed by law, we fail to see what right they have to complain, unless that right be to invoke the constitution as a protection to them in violating the law. The relief sought in Hettrick v. Page, supra, was not unlike that sought by the plaintiffs in this action. It was, like this, an application for an injunction to prevent the removal of stakes, or any interruption of the plaintiffs in their use, which the defendants were threatening to do, under...