Reyburn v. Sawyer

• Decision Date: 03 May 1904
• Citation: 135 N.C. 328,47 S.E. 761
• Parties: REYBURN . v. SAWYER.
• Court: North Carolina Supreme Court

47 S.E. 761

135 N.C. 328

REYBURN .

v.SAWYER.

Supreme Court of North Carolina.

May 3, 1904.

PUBLIC NUISANCES—OBSTRUCTIONS TO NAVIGATION—PRIVATE REMEDY—PECULIAR INJURY— ACTION FOR DAMAGES — INJUNCTION — GROUNDS—INSOLVENCY OF DEFENDANT.

1. The placing of pound nets in a navigable sound so as to obstruct the channel and interfere with the customary navigation under certain conditions of tide and weather, constitutes a public nuisance.

2. While the ordinary remedy for public nuisance is by indictment, one who has suffered unusual and peculiar damages by the erection of such a nuisance distinct from the grievance common to the public may sue to redress his injury.

3. One who suffers peculiar damages through the erection of a public nuisance is not confined for his remedy to an action for damages, especially where the damages arise from the injury and obstruction to the free use and enjoyment of his property, but may maintain a suit for an injunction.

¶ 3. See Nuisance, vol. 37, Cent. Dig. §§ 164, 117.

4. The insolvency of defendant, so that a recovery would be of no avail and the injury irreparable, furnishes ground for an injunction to abate a nuisance erected by defendant.

5. Plaintiff was the owner of an island in a navigable sound. Defendant erected fish nets across the channel, which was the natural approach to the island, so as, under certain conditions of tide and weather, to obstruct the approach from that direction. There was, however, a reef extending at right angles to the fish nets, which could be crossed by the craft ordinarily in use on the sound under ordinary conditions, so that the obstruction of the channel in general did plaintiff no harm. On one occasion, however, plaintiff's attorney went to the island to see plaintiff on a matter of business, and while he was there a stiff breeze blew up. and continued to blow for two days, and the waves broke over the reef to such an extent that the boatmen would not cross it, and, owing to the difficulty of crossing the reef and the stakes in the channel, they were afraid to venture out, and the attorney could not leave for two days. Held, that this circumstance en titled plaintiff to an injunction restraining defendant from maintaining fish nets in the channel.

Appeal from Superior Court, Dare County; Justice, Judge.

Action by.John E. Reyburn against D. C. Sawyer. From a judgment refusing an injunction, plaintiff appeals. Reversed.

Action to restrain by injunction the defendant from maintaining a nuisance, referred to have decided all issues of fact and law. The referee, from the evidence, finds the following facts, to wit:

"(1) Durant's Island is a body of land lying in Dare county, surrounded by the waters of Albemarle Sound, Alligator river, East Lake, and the Haulover, and is well known by the' name of Durant's Island. All of said waters and land lie wholly within the state of North Carolina.

"(2) Durant's Island is swamp or marsh land, except a little around the shore—sand ridge.

"(3) That on the southern side of the island is a creek or bay making into said island from Albemarle Sound, which creek or bay is known as 'Tom Mann's Creek.'

"(4) On the 18th day of April, 1890, the state board of education made and executed a deed unto John E. Reyburn, the plaintiff, which deed was recorded in Dare county. Said deed describes and the boundaries include Durant's Island.

"(5) Near the shore of Tom Mann's creek the plaintiff has erected several houses, which are now, and have been continuously since April 18, 1890, occupied by plaintiff and his servants or agents.

"(6) The plaintiff has a house known as an icehouse, which is situated over the waters of Tom Mann's creek, which house is connected with the land by a wharf or pier.

"(7) The plaintiff has cut a canal about 10 feet wide and 30 inches deep, which canal connects the waters of Tom Mann's creek with the waters of Frying Pan, and has built some roads on the island. The said canal was cut prior to the erection of the nets hereinafter referred to.

"(8) Since 1890 the plaintiff has continuously kept on said island at least two men, who have lived in the houses which were built by plaintiff, and has also kept thereon a stock of cattle and some poultry.

"(9) In 1890, after the execution of the deed by the state board of education, the plaintiff posted notice on Durant's Island forbidding others from trespassing thereon, and has kept others from trespassing upon said island.

"(10) There is a channel leading from Tom Mann's creek into Albemarle Sound, which channel, after leaving the creek, turns eastwardly and westwardly nearly parallel with the general curvature of the shore of the island, and running eastwardly until it gets near the northeastern end of the island abreast of the Haulover, where it connectswith tie deep water of Albemarle Sound, which lies to the northward. "(11) From near the mouth of Tom Mann's

creek going eastwardly to where it connects with the deep waters of Albemarle Sound this channel is from 5 to 6 feet in depth, and varies from 175 to 600 feet in width. There are shoals in this channel upon which the water is only 4 feet deep.

"(12) On the northern or sound side of this channel is a reef or shoal running nearly parallel with the shore or island, which reef or shoal terminates nearly opposite the Haulover. This reef or shoal varies in width from 30 to 150 feet. The water on this shoal or reef is from 3 to 4 feet deep, and deeper abreast of Tom Mann's creek than at other parts, except where the shoal terminates nearly abreast the Haulover.

"(13) The channel above mentioned extends to the west of the mouth of Tom Mann's creek.

"(14) On the southern or shore side of this channel the water gradually shoals until it approaches the shore, but in some places it is as deep as in the channel.

"(15) The waters on the southern or shore side of the above-mentioned reef are navigable for boats drawing from three to four feet of water. That part of Albemarle Sound on the inside or shore side of the above-mentioned reef or shoal is usually and almost entirely navigated and used by boats called 'shad boats' or 'sprit-sail boats, ' which boats, when loaded, draw about 30 inches of water. Boats of smaller size are also used inside of the said reef or shoal, and occasionally boats of larger size, drawing from 3 to 4 feet, come inside this reef or shoal. Boats drawing as much or more than 7 feet of water can navigate the waters of the Albemarle Sound on the outside of the said reef or shoal, and can pass from Albemarle Sound through connecting waters to the Atlantic Ocean.

"(16) When it is calm, or in moderate weather, boats drawing 30 inches can cross the reef or shoal. In rough weather, and especially when the wind is from the north, northeast, or northwest, boats drawing as much as two feet of water cannot cross the reef or shoal with safety, and in such weather boats of smaller size are not safe in Albemarle Sound. When the wind is from the north, northeast, or northwest, this reef has the effect to break the force of the waves beating upon the lee shore, and it is smoother on the inside of the reef than on the outside, and safer for such boats as usually go on the inside, than it would be on the outside of the reef.

"(17) The defendant, prior to the institution of this suit, placed a line of stakes in the waters of Albemarle Sound, which stakes are from 2 1/2 to 4 inches in diameter at the water's edge, and larger at the bottom, and extend 4 or more feet above the water, and are Irmly set or driven in the soil under the wa ter. These stakes are nearly abreast of the Haulover, and run across the mouth of the above-mentioned channel, and are 140 feet from its mouth and 140 feet from the eastern end of the reef, and run parallel with the channel as it empties into the sound, and runs nearly at right angles to the reef. The first pocket or pond is from 100 to 150 yards from the reef on the sound side.

"(18) These stakes for the nets originally began about 100 yards from the shore, and from that point extended out into the sound a distance of from 1, 000 to 1, 200 yards. There were two stakes between the shore end of said net stakes and the shore, which two stakes have been removed since this suit began. The stakes starting from the net stake nearest the shore are placed about 60 feet apart, running out a distance of 200 to 300 yards. These stakes are called "lead stakes." At about a distance of 200 to 300 yards from the shore end of the line of stakes a square 36 feet each way is formed by stakes of similar size, the stakes forming this square are about 36 feet apart, and have smaller stakes from 12 to 18 feet apart between them. This forms the pocket of the net. From the outer side of this pocket another line of lead stakes starts and runs out about 250 yards, when another pocket is formed, and this continues until four pockets have been formed. The whole row of stakes extend into the sound about 1, 200 yards from the stake nearest the shore.

"(19) At certain times during the year a net is attached to these lead stakes running from the stakes nearest the shore to the pound stakes. This net is made of net twine, and is hung upon ninethread manilla rope, which is about three-eighth inches in diameter, which manilla rope is tied to the lead stakes at about the level of the water with marlin. The net drops down in the water. These lead lines sag so as to drop about 12 to 18 inches below the top of the water in the center between the stakes. This is the usual method of setting Dutch nets.

"(20) There is attached to the pocket or pound stakes a pocket or pound net made of similar twine, with smaller meshes, tied to similar ropes, which ropes are tied to the pocket or pound stakes with marlin. This pocket or pound of the net is about 28 feet square, and is level with the water, and is tied to the stakes so as to be kept level with the water and to prevent sagging. About two feet above the pocket another...