State v. Twiford

• Decision Date: 04 October 1904
• Citation: 48 S.E. 586,136 N.C. 603
• Parties: STATE v. TWIFORD et al.
• Court: North Carolina Supreme Court

48 S.E. 586

136 N.C. 603

STATE v. TWIFORD et al.

Supreme Court of North Carolina

October 4, 1904

Appeal from Superior Court, Currituck County; Hoke, Judge.

G. W Twiford and another were convicted for placing obstructions in a navigable stream, and appeal. Affirmed.

E. F Aydlett and J. F. Minturn, for appellants.

The Attorney General, for the State.

CLARK C.J.

There was evidence on the part of the state tending to show that the waterway in question leads off from Currituck Sound, and is about 400 yards wide and 6 feet 10 inches deep in the channel at its mouth, and the following widths at these distances from its mouth: 500 yards wide at 1 mile, 400 yards wide at 1 1/2 miles, and 60 yards at Shipyard, about 2 miles above; that the obstructions were placed in the stream at a point 350 yards from the mouth of the creek. At this point Jean Guide creek is about 350 yards wide, and boats drawing 5 or 6 feet of water could sail up to the point where the obstructions were placed, and 1 1/2 miles above the mouth of the stream. The water course in question has been used by the public for 35 years "for fishing and harboring, and as a passway, and for landing purposes," and "as an harbor for protection in time of storms," and "as a thoroughfare by the public as long as the witness could remember, and by persons coming in from the sound, who would go up to the head of the creek at Shipyard, leave their boats, and then go by land, and he has seen boats carrying freight land at the pier." Barges drawing 3 1/2 feet of water and transporting timber can go to Shipyard, turn, and come out. This witness also testified that he had seen a sloop 200 yards above the point at which the obstructions were placed. There was also evidence tending to show that the land covered by the waters of Jean Guide creek is claimed by Hannah M. Lyons, of New Jersey, who acquired her alleged title through mesne conveyances from a grant from the state of North Carolina to one Hodges Gallop, dated May 30, 1872. It also appeared that the land on both sides of the creek belongs to Hannah M. Lyons, and that no public road leads from the creek, but only a private road for the use of the owner and her tenants. The defendants, Twiford and Tate, admitted that they, by the orders of said riparian owner, placed the obstructions in the creek in October, 1902. The stakes constituting the obstruction are strongly driven down, and their tops rise 3 or 4 feet above the surface of the water. They are 2 1/2 feet apart. There is a gate near the center of the stream, used exclusively by the owner, which is kept locked, so as to prevent the general public from using the waterway.

The defendants excepted to the refusal of the court to charge (1) that, if the jury believed the evidence, the creek is not navigable, and they should find the defendants not guilty; (2) that as the obstructions were placed by the defendants under orders "of the owner of the land on both sides of the creek, and title to the stream belongs also to her, they should return a verdict of not guilty"; (3 and 4) that as the creek leads from the sound to the land of the employer of the defendants, and not to any public place, and there is no public road adjoining or touching the creek, and any one landing at any point on the creek must go over the land of said riparian owner, they should find the defendants not guilty; (5) that, if the evidence is believed, the creek is not navigable, and is owned by Hannah M. Lyons, and she had a right to place the posts in the creek, and the defendants, acting under her orders, were not guilty. The court charged the jury, among other things: "If this stream or bay is properly described and generally known as Jean Guide creek, and is wide enough and deep enough for navigation by boats ordinarily used for carrying traffic and commerce on the sound waters, and was required and used for such purposes by the necessities and conveniences of persons generally engaged in such traffic, it would be an indictable nuisance to obstruct it; and if the jury are satisfied beyond a reasonable doubt it was that character of stream, so used and required by public convenience, and that defendants put the obstructions in the stream, the defendants would be guilty, and you should so return your verdict." Defendants excepted. "If the stream is not navigable by vessels of the kind described, or if the stream was so shut in or is so situated that it was not used or required for traffic or commerce by the convenience of the public or persons generally engaged in traffic with vessels on the sound, then it would be no nuisance to obstruct it or shut it up, and the jury should acquit the defendants." The defendants again excepted. The question was submitted to the jury as one of fact under the above instructions. The rest of the charge, which fully set out the contentions of the parties and the law, was not excepted to. These are the only exceptions, and we find no error.

If a stream is "navigable in fact [as the jury found under the above instructions], it is navigable in law." Gould on Waters (3d Ed.) § 67. The capability of being used for purposes of trade and travel in the usual and ordinary modes is the test, and not the extent and manner of such use. State v. Eason, 114 N.C. 787, 19 S.E. 88, 23 L. R A. 520, 41 Am. St. Rep. 811; Hodges v. Williams, 95 N.C. 331, 59 Am. Rep. 242; Ingram v. Threadgill, 14 N.C. 59; Wilson v. Forbes, 13 N.C. 30. The same ruling is maintained in United States Supreme Court. The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999; The Montello, 11 Wall. 411, 20 L.Ed. 191; Id., 20...