State v. Eason

• Decision Date: 20 February 1894
• Citation: 19 S.E. 88,114 N.C. 787
• Parties: STATE v. EASON.
• Court: North Carolina Supreme Court

19 S.E. 88

114 N.C. 787

STATE v. EASON.

Supreme Court of North Carolina

February 20, 1894

Appeal from superior court, Beaufort county; Graves, Judge.

Charles Eason was tried and acquitted of violating a town ordinance. From an order allowing an amendment of the complaint after verdict, defendant appeals. Affirmed.

The original affidavit and warrant were as follows: "On the 31st of September, 1893, before me, E. M. Short, mayor of Washington, N. C., personally appeared J. R. Grist, who being duly sworn, complains, on oath, and says that Charles Eason did on the 20th of September, 1893, in violation of the town ordinance No. 11, in force in said town, contrary to the statute in such case made and provided, and against the peace and dignity of the state." The warrant: "You are hereby commanded forthwith to arrest Charles Eason, and him safely keep, so you have him before me at my office in Washington immediately to answer the above complaint, and be dealt with as the law directs." The amendment allowed after judgment and verdict was as follows: "Did unlawfully and willfully throw dead fish into the Pamlico river in said town, in violation of the town ordinance No. 11 of the town of Washington." The amendment was inserted as set forth in the statement of the judge, and the material portions of the statement are as follows: "Ordinance No 11. No sheep, goat or cattle shall be slaughtered for market within the corporate limits of the town; nor shall any fish be cleaned on the wharves, streets or lots of the town except for the use of families in said town, and no dead fish or offal thrown into the river." Penalty for the violation of this ordinance was five dollars. The jury rendered a special verdict: "That the town of Washington is bounded on the south by Pamlico river, which is a navigable stream, and the boundaries of the said town are set forth in chapter 110 of Priv. Laws 1891, and the cedar post referred to is on the bank of the said river. That the fish house hereinafter described is situated as follows: The northern sill of the said house rests upon the wharf log which said wharf log is beyond the natural low-water mark, being the end of the made land which was made prior to 1891. That the wharf at the said point extends further out in the river than the wharves immediately to the east and west of the said wharf, and the said wharves mark the present shore line of said river, and the present low-water mark. That the water at the end of all of said wharves is of sufficient depth to be navigated. That from said wharf said house is built on piles driven in the bed of the river, and extending about thirty feet out from said wharf over the water. That the water of the river flows under said house; is of sufficient depth to be navigated, if it were not for said piles. That the southern end of said house borders on the channel of the river. That Wynne and Gaskill have boats to land at said fish house, from which boats they receive fish. That the river is about four hundred yards wide at this point. That ordinance 11 of the town forbids the throwing of dead fish into said river, and the penalty is five dollars. That on the 20th day of September, 1893, the defendant threw dead fish into said river from said fish house. That the said fish house was built over the said water by one J. R. Wynne, under a license regularly issued by the commissioners of navigation for the port of Washington, granted on March 31, 1892. That if, upon these facts, the defendant is guilty in law, the jury say for their verdict that the defendant is guilty; and if, upon these facts, in law he is not guilty, the jury say for their verdict, 'Not guilty."' Upon these facts, the court, being of opinion that the defendant was not within the corporate limits of the town, directed the jury to render a verdict of not guilty, and thereupon the jury, under the instruction of the court, rendered a verdict of not guilty. The solicitor for the state, after verdict, moved to amend the warrant by inserting therein, after the figures "1893," the following words: "Did unlawfully and willfully throw dead fish into the Pamlico river in said town, in violation of the town ordinance No. 11 of the town of Washington, N. C." The court allowed this amendment, and the defendant excepted.

The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or, indeed, any test at all, of the navigability of waters.

W. B. Rodman, for appellant.

The Attorney General and Chas. F. Warren, for the State.

AVERY J.

Our numerous long streams and large inland sounds come so clearly within the reason of the rule adopted, on account of the different conditions, in England, exclusively to waters subject to the ebb and flow of the tides, that it became necessary to establish here a new test of navigability, in determining what submerged land should be reserved as the property of the state, and what should be liable to appropriation by private persons by specific entry and grant, or should pass as incident to patents issued to riparian proprietors. The criterion in North Carolina is whether the stream, bay, or sound is navigable for seagoing vessels. Broadnax v. Baker, 94 N.C. 681; Hodges v. Williams, 94 N.C. 331; Ang. Water Courses, § 549, note; Collins v. Benbury, 3 Ired. 277; Fagan v. Armstead, 11 Ired. 433. While the bed of a stream navigable, or declared by the legislature to be navigable, for "sea vessels," is not subject to entry, the beds of streams that are large enough to subserve the purpose of highways for smaller boats, floats, rafts, and logs, but insufficient for seagoing vessels, may be granted specifically, or pass by deeds of riparian proprietors on both sides, running with rivers, and extending by construction ad filum aquae, but subject to the easement of the public to use the channel as a highway. Bond v. Wool, 107 N.C. 149, 12 S.E. 281; State v. Glenn, 7 Jones, (N. C.) 325; Williams v. Buchanan, 1 Ired. 535; McNamee v. Alexander, 109 N.C. 244, 13 S.E. 777. The legislation in North Carolina has been generally in affirmance of the new rule so much better adapted to the nature of this country. Our statutes, with the exception of a short interval, have never permitted the issuing of grants to private individuals for the beds of streams navigable for sea vessels, even though not affected by the tides, beyond the deep-water line, at most. Bond v. Wool, supra; 1 Potter, Rev. 278; Rev. St. c. 42, § 1; Acts 1777, c. 114; Hatfield v. Grimstead, 7 Ired. 139; Code, § 2751; Laws 1889, c. 555; Laws 1893, c. 17.

It follows, therefore, that a grant to a riparian proprietor running with a navigable stream such as the Pamlico river at Washington, from one designated point on its banks to another above or below on the same bank, must be so located as to extend, not ad filum aquae, but only to the low-water mark along the margin of the stream. This court having uniformly interpreted such calls in grants to individuals as designating the low-water line, we know of no recognized rule of construction that would sustain us in giving a widely different meaning to the same language, when used by the legislature to define the limits of a town. Gould, in his work on Waters, (section 202,) says, in ascertaining the boundaries of towns: "The same rules of construction apply as in the case of a grant from one individual to another." A municipal corporation can exercise only such powers as are expressly granted by its charter, or are necessarily implied in or incident to the powers expressly granted. 1 Dill. Mun. Corp. § 89; Thomson v. Lee Co., 3 Wall. 320; Thomas v. City of Richmond, 12 Wall. 349. "Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public." Minturn v. Larue, 23 How. 436. A municipality being thus restricted to the exercise of powers clearly intended to be delegated, it would seem that, if the same rigid rule of construction does not obtain in determining the territorial limits to which its authority extends, the location of the geographical limit of its territorial jurisdiction should, at all events, be determined just as similar calls of grants to individuals are located. "Because the local jurisdiction of the incorporated place is, in most cases, confined to the limits of the incorporation, it is necessary [says Dillon] that these limits be definitely...