State v. Baum

• Decision Date: 23 May 1901
• Citation: 38 S.E. 900,128 N.C. 600
• Parties: STATE v. BAUM.
• Court: North Carolina Supreme Court

38 S.E. 900

128 N.C. 600

STATE v. BAUM.

Supreme Court of North Carolina

May 23, 1901

Appeal from superior court, Currituck county; Allen, Judge.

Arthur Baum was convicted of unlawfully obstructing a navigable stream, and he appeals. Affirmed.

An indictment which charged that defendant unlawfully obstructed a navigable stream cannot be maintained under Code, § 1123 prohibiting any one from willfully obstructing a stream except for the purpose of utilizing the water as a motor power, but can be maintained as charging a common-law offense.

Where defendant drove piles 18 inches apart across the branch of a sound which was from 2 to 4 feet deep and from 140 to 300 yards wide, and was used by the public in passing in boats from one part of the sound to another, it was proper to charge that if the jury believed, beyond a reasonable doubt that the branch was a navigable stream, and that defendant willfully placed posts in it, he should be found guilty of unlawfully obstructing it.

This is a criminal action on indictment charging the defendant with unlawfully obstructing the navigation of a part of Currituck Sound known as "North Sand Cove." One Hampton, a witness for the state, testified as follows: "I know North Sand Cove, which begins on the eastern side of Currituck Sound, and runs through the marsh for about one-half to one mile, and runs into the sound again. It has four mouths or openings into said sound. I have measured the water at the western mouth, and at high tide it is two to two and a half feet, and at low tide about one and a half feet in depth. I measured it at middle tide, and it was two feet, and about the same at its other openings into said sound. The mouths are from 140 to 230 feet wide, but it is wider after you get in, and in some places 200 to 300 yards, and about the same depth all through as at the mouths. North Sand Cove before it was stopped up, was used by citizens of Currituck county for passing and repassing in their boats, when boating, fishing, and hunting, from one part of the sound to the other. The distance was shortened, and in rough weather it was safer to navigate. Boats from 18 to 20 feet long passed through this cove frequently, and I have carried myself on one of them, my nets, and 700 to 800 pounds of fish. It was used by all the people. The mouths were stopped by posts put across them, driven securely down, 18 inches apart, and measuring from 4 to 5 inches in diameter,--97 of these in one place and 152 in another,--and stopped all use of this water course by boats. I have heard defendant say he put them there." Another witness for the state testified to the same effect. The defendant introduced no testimony. The defendant asked the court to direct a verdict of not guilty. This the court refused, and charged as follows "That if they believed all of the evidence in this case and find from the evidence, beyond a reasonable doubt, that the North Sand Cove is a navigable stream, and further find that the defendant obstructed the stream by willfully placing posts in same as testified, then the defendant is guilty, and you should so find." There was a verdict of guilty, and from the judgment pronounced thereon the defendant appealed.

The Attorney General, for the State.

DOUGLAS, J. (after stating the facts).

We find no error in his honor's refusal to charge, or in his charge, though the latter is somewhat meager. But, as there are no requests for special instructions, we presume that it was intended to present to us the simple question whether such a water course as is described in the uncontradicted testimony is a navigable stream. We are of opinion that it is, and that the defendant was properly convicted, if the jury believed the evidence, the credibility of which was left to them. This case is very similar to that of State v Narrows Island Club, 100 N.C. 477, 5 S.E. 411, except that the defendant does not claim any individual ownership in the bed of the cove. For the reasons stated in that opinion, we do not think that this action can be maintained under section 1123 of the Code, but that it can be sustained as charging a common-law offense. That case comes nearer settling the case at bar than any other we can find in the books, and we think is controlling. There is a vast amount of learning upon the subject of navigable waters, much of which is inconsistent, and the greater part of which is totally inapplicable to the physical conditions of our country. Under the common law of England, whence came the doctrine, the ebb and flow of the tide was the test of a navigable stream. Such streams were said to be publici juris, but the right of navigation might be acquired above tide water. This rule operated very well in England, whose small size and low elevation confined actual navigation, practically, to the theoretical limits fixed by law. Few, if any, of its streams are actually navigable for any practical purpose beyond the flow of the tide. For a time our courts adhered to the definition of the common law, and found little difficulty in doing so, as this country was then thinly settled, with no towns of any importance above tide water. At that time the navigability of a stream depended more upon the temper of the Indians living along its banks than upon its natural features. As, however, the settlements went inland, and important...