State v. Narrows Island Club

• Decision Date: 05 March 1888
• Citation: 5 S.E. 411,100 N.C. 477
• Parties: STATE v. NARROWS ISLAND CLUB.
• Court: North Carolina Supreme Court

5 S.E. 411

100 N.C. 477

STATE v. NARROWS ISLAND CLUB.

Supreme Court of North Carolina

March 5, 1888

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

Indictment against Narrows Island Club, for obstructing the navigation of "Big Narrows," a part of Currituck sound. Verdict of guilty, and, from judgment thereon, defendant appeals. The indictment charged the defendant (a corporation chartered by the legislature of North Carolina) with obstructing a certain part of Currituck sound, known as the "Big Narrows," by placing certain iron pipes therein, so that the citizens of the county could not pass over said waters with their boats and canoes in so free a manner as of right they ought and before have been used and accustomed to do. The material parts of the indictment are as follows: "The jurors," etc., "present that the defendant, a corporation," etc., "a certain part of Currituck sound, known as 'Big Narrows,' which sound runs from the Albemarle sound to the Black Water river, which is and has been a common highway," etc., "to navigate said sound at their will and pleasure without any obstruction, did unlawfully, willfully, and injuriously erect and put in said Big Narrows and highway certain iron pipes and did continue said obstruction, by which the free navigation was obstructed, contrary," etc. The defendant admitted that the pipes had been erected as charged, but claimed that it had a right to do so. Defendant pleaded not guilty, and that it was the owner of the land on which the alleged obstructions were erected, and introduced a grant from the state to one Sanderson, under whom it claimed, for the purpose of showing its title to the land, and that the iron pipes were put within those boundaries. Evidence was introduced by both parties in reference to this matter. The court, among other things, instructed the jury that the question whether the pipes or posts were an obstruction to navigation was a question of fact for their determination. The jury returned a verdict of guilty, and from the judgment pronounced the defendant appealed.

Starke & Martin, for defendant.

The Attorney General, for the State.

MERRIMON J., (after stating the facts substantially as above.)

We need not decide whether the grant from the state, under which the defendant claims title to the land covered by the water called "Big Narrows," charged in the indictment to have been obstructed, was or was not void. The evidence produced on the trial went directly to prove, and the jury found by their verdict, that the water was part of a navigable sound, and that it was in fact navigable for a large class of useful vessels, and had been used by the public for the purposes of navigation for a long while,--25 or 30 years, and perhaps longer. If the water referred to was thus navigable, the public had the right to use the same for the purposes of a highway and navigation, notwithstanding the defendant may have been the owner of the bed of the river or sound. In that case it was not material for the jury to inquire whether the defendant was such owner or not. Navigable waters are natural highways,--so recognized by government and the people,--and hence it seems to be accepted as a part of the common law of this country, arising out of public necessity, convenience, and common consent, that the public have the right to use rivers, lakes, sounds, and parts of them, though not strictly public waters, if they be navigable in fact for the purposes of a highway and navigation employed in travel, trade, and commerce. Such waters are treated as publici juris, in so far as they may be properly used for such purposes in their natural state. The public right arises only in case of their navigability. Whether they are...