State v. Glen

• Decision Date: 31 December 1859
• Citation: 7 Jones 321,52 N.C. 321
• Parties: STATE v. TYRE GLEN.
• Court: North Carolina Supreme Court

7 Jones (NC) 321

52 N.C. 321

STATE

v.TYRE GLEN.

Supreme Court of North Carolina.

December Term, 1859.

All water courses, not navigable for sea vessels, but capable of being navigated by boats, flats and rafts, technically styled unnavigable streams, are the subject of special grant by the State under the entry law.

Rights acquired by special grants from the State, in water courses, technically styled unnavigable, cannot be taken from the grantees, by the government, except in the exercise of the power of eminent domain, and then only for public use, with a provision for a just compensation.

THIS was an INDICTMENT under the act of Assembly, for failing to remove obstructions to the passage of fish up the Yadkin river, tried before HEATH, J., at Fall Term, 1859, of Yadkin Superior Court.

The parts of the said act, material to the question considered, are sufficiently apparent from the recitals by his Honor, in delivering the opinion of the Court. The special verdict, rendered in the case, discloses the following state of facts:

The defendant, in the year 1857, built a mill-dam across the Yadkin river from bank to bank, for the purpose of supplying his grist and saw mills with water; that by this dam, shad and other fish were prevented from passing up the channel of the river above said dam, whereby the citizens above the defendant, on the river, were prevented from catching these fish; that before the erection of this dam, these fish were accustomed to ascend for forty or fifty miles above this point; that the said Yadkin river is an inland stream, one hundred and seventy yards wide, but not so free, open and deep as ever to have been navigated with steamboats, or any sailing vessels, and navigable only for flats and canoes in crossing; that within the last twenty years, on a few occasions, lime and flour have been carried in flats from a point on said river thirty-five miles above the defendant's said dam, down to a point some fifty miles below the same; that no tide ebbs or flows in the said river; that the defendant was the owner of the land on both sides of the river, at the time said mill-dam was erected, and hath so continued to be owner thereof, up to this time; that he is also the owner of the bed of said river, holding under a grant from the State, dated in 1794, the boundaries of which include his said mill-dam; that the defendant also holds the land on both sides of the river, under grants from the State, anterior to 1794, the river being one of the boundaries of said grants, respectively.

Upon this state of facts, the Court being of opinion with the plaintiff, in accordance with the verdict, gave judgment against the defendant.

From this judgment defendant appealed.

Attorney General, with whom was Boyden, for plaintiff .

B. F. Moore, McLean and Fowle, for defendant .

BATTLE, J.

The act under which the defendant is indicted, after directing, in the first and second sections, that the Pedee and Yadkin rivers shall be opened and kept open for the passage of fish, and prescribing the manner in which it shall be done, declares in the third section, “that all persons now having obstructed the passage of fish up the said river, (the Yadkin) either by the erection of mill-dams, or dams for any other purposes, or in any manner whatever, shall have obstructed the free passage of fish contrary to the true meaning of this act, and shall fail to remove all such obstructions on or before the first day of March next; or any other person or persons who may hereafter obstruct the said channel by dams, hedges, seins, wire, or in any way or manner, shall forfeit the sum of fifteen dollars, &c.;” and the fourth section makes the offense a misdemeanor, and subject to indictment. See acts of 1858, ch. 244. The special verdict sets forth that the defendant had, in the year 1857, which was before the enactment of the law above referred to, erected a dam entirely across the Yadkin river, from bank to bank, which obstructed the passage of fish up that stream; and had kept up the same for the purpose of supplying water to his grist and saw mills, until the time when the bill of indictment was found. It states further, that he was the owner of the river's bed on which his dam was erected, under a grant for the same from the State, issued in the year 1794; and also, the owner under distinct grants of a prior date, of the land on both sides of the river at that place, the river being one of the boundaries of the said grants; that the river is at that part of it an inland stream, one hundred and seventy yards wide, but above the ebb and flow of the tide, and not so full open and deep as ever to have been navigated with steamboats, or sailing vessels, but navigable only for flats and canoes in crossing; and that within the last twenty years, on a few occasions, lime and flour have been carried in flats from a point on the river, thirty-five miles above the defendant's dam, to another point fifty miles below it.

Upon this statement of facts, the indictment presents the question, whether the Legislature had the power, under the constitution of the State, and the United States, to compel the defendant to take away, at his own expense, a part of his dam, so as to make an opening for the passage of fish, without providing for him an indemnity for the loss which he might thereby sustain.

Every case which calls in question the constitutionality of an act of the legislative department of the government, is necessarily an important one, and the consideration of it ought to be approached and conducted with becoming solemnity and respect. Our predecessors were the first of any Judges, in any State in the Union, to assume and exercise the jurisdiction of deciding that a legislative enactment was forbidden by the constitution, and, therefore, null and void. (See Bayard v. Singleton, Martin, (N. C.) Rep. 48, decided in November, 1789, which was four or five years anterior to the earliest case on this subject, referred to by Chancellor KENT; 1 Kent's Com. 450. But while they were the first to vindicate for themselves this important function, they have always exercised it in a spirit of proper deference towards that coordinate branch of the government upon whose acts they were sitting in judgment. Hence, it has become a settled and invariable rule with the courts of this State, never to pronounce an act of the Legislature unconstitutional and void, unless there is a clear repugnance between its provisions and the constitution; State v. Manuel, 4 Dev. and Bat. Rep. 20; State v. Newsom, 5 Ired. Rep. 250; State v. Matthews, 3 Jones' Rep. 451. It is in this spirit that we propose to consider the question now presented for our decision.

In conducting our enquiry, it is first necessary for us to ascertain the true condition and character of the river, across the bed of which, the defendant's mill-dam was erected. For this purpose, we will go at once to the highest authority on the subject, Lord Hale's treatise de jure maris et brachiorum ejusdem, in Mr. Hargrave's edition of it. He says, at page 809, “There be some streams or rivers that are private, not only in propriety or ownership, but also in use, as little streams or rivers, that are not a common passage for the King's people. Again, there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters, and these, whether they are fresh or salt, whether they flow and reflow or not, are prima facie publici juris, common highways for a man or goods, or both, from one inland town to another.” Again, at page 5, he says, “Fresh rivers of what kind soever, do of common right belong to the owners of the soil adjacent, so that the owners of one side have, of common right, the propriety of the soil, and consequently, the right of fishing usque ad filum aquæ, and owners of the other side, the right of soil or ownership, and fishing unto the filum aquœ on their side; and if a man be owner of the land on both sides, in common presumption, he is the owner of the whole river, and hath the right of fishing according to the extent of his land in length; with this agrees the common experience.”. From these extracts its appears that “all rivers above the flow of tide water, are by the common law, prima facie private; but when they are naturally of sufficient depth for valuable floatage, the public have an easement therein for the purposes of transportation and commercial intercourse; and, in fact, they are public highways by water.” But, they “are called public rivers, not in reference to the property of the river, for that is in the individuals who own the land, but in reference only, to the public use;” Angel on Water Courses, sec. 535. With regard to the right of fishing, if a man be the sole owner of the soil over which a water course runs, he alone is entitled to the use and profits of the water; but, if he be only a reparian proprietor, on one side of the stream, his right to the water extends only to the middle of the stream. “Concomitant with this interest in the soil of the beds of water courses, is an exclusive right of fishing; so that the reparian proprietor, and he alone, is authorised to take fish from any part of the stream included within his territorial limits.” Ibid, sec. 61.

In England, navigable waters, which are publici juris, and as such, distinguishable from those which we have been describing, are ascertained by the ebb and flow of the tide.--This criterion has been held by our courts not to be applicable to the water courses of North Carolina, and has been long since repudiated. We hold, that any waters, whether sounds, bays, rivers or creeks, which are wide enough and deep enough for the navigation of sea vessels, are navigable waters, the soil under which is not the subject of entry and grant under our entry law, and the rights of fishing in which are, under our common and statute law, open and common to all the citizens...