Superior Court of North Carolina, 1797

Jones v. . Jones

Superior Court of North Carolina · Decided April 5, 1797 · PER CURIAM.

2 N.C. 488

Counsel

Counsel for the defendant: This river is either navigable or it is not. If it is a navigable river, the right of fishing in it is common to all the citizens; the bed or soil of it cannot be granted at this day, nor can any citizen be disturbed or restrained of his right by any State grant. The Crown in England was long ago restrained from making such grants. 6 Mo., 73 ; 4 Bac. Ab., 156; 1 Mod., 106. If it is not a navigable river, then the bed of the river belongs to the owners on each side, each claiming to the middle of the water (4 Burr., 2162; 4 Bac. Ab., 153; Doug., 427; 4 Bac. Ab., 156; Vattel 104, sec. 246), and then it is not subject to be granted by the State, being already appropriated. All that the Legislature can do with respect to the rights of fishing in navigable rivers is to pass laws prescribing the mode in which that right is to be exercised by the citizens. Vattel 104, sec. 246. In England a franchise of free fishery must have been granted before the charter of King John, for all such grants in future are prohibited by that charter. Admit the islands may be granted, yet a grant of them will not pass the rock, which stands in the river at a great distance from either of them; but in truth the islands are not grantable; they belong to the owners of the nearest adjacent lands. Even the grant of 1753, comprising the islands, did not extend to this rock, nor was legally comprehended in the State grant issued under the act of 1787. That act says that all and every person and persons owning lands on said river at and against and contiguous to any rocks or islands not yet entered and taken up shall have the privilege and liberty of taking up the same agreeably to the laws for taking up land now in force, provided they enter and take up such islands, rocks and stands within six months, etc. The rock in question was nearer to the lands of another person than the grantee. His lands are not at, adjoining, and contiguous to this rock, in comparison with the lands of that other. The grantee was not a person intended by the act to have the right of preemption. The grant has issued (491) upon wrong suggestions, and is therefore void. Bull., 76; 1 Co., 44, 45. The Governor was not authorized to execute such a grant. Thus the grant is not only void, because the rock belonged to the owner of the land nearest to it, but also for this other reason, that it issued without authority given by the State to issue it. Counsel for the plaintiff: They rely upon their possession, but possession cannot ripen into title unless it be a continued and constant possession. The possession of the defendant has been for five or six weeks only in a year. Therefore, it cannot avail him. It is admitted on the other side that no right can be acquired in this country by prescription. I shall therefore say nothing more on these points. It is argued that this is a navigable river, and therefore could not be granted, and 1 Bl. Com., 286; 2 Bl. Com., 39, is relied on. It is true, in England such grants were restrained by particular laws intending to restrain the prerogative; but these laws are not in force here. Our legislative body is only restrained and regulated by the Constitution. Acts passed by them for the public good, and not repugnant to that Constitution, must be enforced. It is not a true position that in case of private rivers, or rivers not navigable, the islands belong to the owners of the adjacent land. Such islands, either on navigable or unnavigable rivers, contain land and territory, and must be entered before they become private property. This appears by our entry laws, 1777, ch. 1, sec. 10, and if islands are to be entered and do not follow the adjoining lands, then upon the principle of the defendant's counsel the owners of the islands are entitled to a part of the bed of the river on each side of the islands. The act of 1787 is founded in good policy, and does not exceed the powers of the Legislature. It was made to prevent strangers, not citizens of North Carolina, from stopping up the river with their stands, and depriving the landholders of the benefit of fishing; such persons trespassed upon the adjoining lands, committed injuries and transgressed the laws of the country, and immediately withdrew themselves into Virginia before they were taken by process issued for the purpose; or if they were by accident apprehended, they were generally unable to make compensation.

Opinion of the Court

On the trial the defendant admitted he had repaired a stand, erected in the river Roanoke to catch fish, and that he had fished there. (489) It was stated by the plaintiff's counsel that this action was *Page 393 brought for the purpose of trying the right of fishing amongst the islands at the falls. The plaintiff deduced his title as follows: First by a grant from the Governor to Griffith for thirty-seven small islands; Griffith conveyed to P. Johnston, and she to the plaintiff. Also he produced a State grant for these islands, rocks and stands, issued under the act of 1787. He also produced a grant for an adjacent tract, the boundaries of which included one bank of the river. His counsel stated that the stand in question was in the middle of the river; that the plaintiff had a title to these islands, rocks and stands prior to 1787; also a title under the act of 1787, and a title to one of the banks by another grant.

The defendant's counsel rested his defense on the long possession the defendant had of this stand prior to the State grant; and that as the river above the falls was not navigable, the bed thereof, and the right of fishing, belonged to the proprietors of the adjoining lands on each side. He then gave evidence of the antiquity of this stand, and that the rock where it is has been rendered an excellent place for fishing, and stands two hundred yards from the islands, and on the south side of the river.

The counsel for the plaintiff grounded his argument on the following points: Observing that this rock or stand, as it was not opposite to any island claimed by the plaintiff, may render the judgment to be given in this case less decisive of the general question respecting the islands and stands adjacent to them than was at first intended, he proposed first to consider how the common law stood, and what right the plaintiff had, prior to the grant of 1787, as to which he sued. The soil or bed of a navigable river belong to the public. Doug., 429; 1 Mo., 105. And the correct idea of a navigable river is one which ebbs and flows, so far as it ebbs and flows. Doug., 427, 441; Cowp., 86. Yet, notwithstanding the general right is in the public in navigable rivers, a private man may acquire a right to a free fishery (4 Com., 448; 3 Term, 253; 4 Burr., 2162), and hence it follows that even in navigable rivers or arms of the sea one of our citizens may acquire an exclusive right of fishing by a grant from the State. Whoever is the owner of the soil or bed of the river has the exclusive right of fishing; and that ownership of the soil or bed of the river may be granted by the State, and has been conveyed to us under the grant of 1787. This secures the exclusive right of fishing to the grantee. 2 B. Com., 40; 1 Inst., 122. In this (490) country there is no such thing as title by prescription, and, therefore, it cannot be pretended that a title may be acquired by it to the overturning of our grant. 1 Inst., 122, note 7. A right, as it is sometimes acquired in England, by long usage, against the owner of the soil, cannot apply here. F. N. B., 200. And then there remains no other *Page 394 means of acquiring an exclusive right of fishing but by a title derived under the owner of the soil (5 Burr., 2814), and this the defendant does not pretend to. Under the directions of the Court, the jury gave a verdict for the plaintiff.

NOTE BY REPORTER. — This case ex relatione, and I have been informed that the judgment of the Court (WILLIAMS, and MACAY, JJ.) proceeded upon the ground that the rocks in the river above the surface of the water were vacant property, and the subjects of our entry laws.

Cited: McKenzie v. Hewlett, 4 N.C. 615. *Page 396

(492)

Case-law data current through December 31, 2025. Source: CourtListener bulk data.