State v. Narrows Island Club.

Mekeimon, J. 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. *481 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— twenty-five or thirty 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 high-way 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 high-ways — 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 high-way 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 navigable or not depends upon their capacity for substantial use as indicated. They can be so used only for the free passage of vessels; the public have only the right of navigation. The title to the bed of the river, lake or sound, in such case, and all special privileges and advantages incident thereto vest and remain in the owner thereof, subject only to the public easement. He may use the land and whatever is incident to it, including the water over it, in such lawful way as he will, if, in so doing, he does not impede or interfere materially with navigation. The limited right of the public is paramount, and shall not be abridged. Broadnax v. Baker, 94 N. C., 675; Hodges v. Williams, 95 N. *482 C., 331; Gould on Waters, §§ 86, 87, 90, 110; Wood on Nuisances, §§ 576, 577, 579, 580. The learned counsel for the appellant pressed upon our attention, State v. Glenn, 7 Jones, 321, as an authority favoring strongly the absolute right of the owner of the whole bed of the river. This is certainly a misapprehension of the real meaning of that case. The river to which it referred-was ascertained to be unnavigable, and the case does not contravene what we have here said. Indeed, the Court recognized the public right in case of the navigability of the stream. It said: “ As the riparian proprietor of the land on both sides of the stream, he is clearly entitled to the soil entirely across the river, subject to an easement in the public, for the purposes of the transportation of lime, flour, and other articles, in flats and canoes.” It appeared that flat boats were occasionally used in transporting the articles named. ' It seems that the pleader intended that the indictment should charge an offence under the statute, (The Code, § 1123,) prohibiting the obstruction of water courses, but it cannot be sustained for such purpose, because that statute provides that: “ If any person shall willfully fell any tree, or willfully put any obstruction, except for the purposes of utilizing water as a motive power, on any branch, creek,” &c., and the indictment does not charge, as it should do, that the obstruction «charged was not “ for the purpose of utilizing,” &c. Such -charge is essential; without it, it might be, the obstruction was for a lawful purpose, and there would be no offence. State v. Norman, 2 Dev., 222; State v. Tomlinson, 77 N. C., 528; Arch. Cr. Pl., 25. Moreover, it may be doubted, whether vthe statute was intended to embrace this and like cases. But to obstruct a navigable water like that in question, is -indictable at common law, and we think the indictment rshould be upheld as sufficient to charge the common law -offence. State v. Parrott, 71 N. C., 311. We cannot doubt that the iron posts — from two-to three *483 inches in diameter — set in the earth, under the water, and standing perpendicularly through and several feet above it, at the places and as described by the witnesses on the trial, were dangerous, per se, to the class of vessels that passed and repassed through the waters mentioned in the indictment. They -were a standing menace to navigation, and though it did not appear in evidence, that any vessel had suffered harm from them, in the nature of the matter, many vessels might have done so, and the evidence tended so to prove, and the jury so found. It is not necessary that obstructions, placed in the way of navigation, should have actually inter-ferred with and done it injury, to render them a nuisance— it is sufficient to make them such, if they rendered such navigation less convenient, less secure, and less expeditious; it must be free and unobstructed by artificial impediments, or dangers. Wood on Nuisances, §§ 607, 608, 613. The Court should have instructed the jury, that if the iron posts were such as described, and were set in the way of navigation, as charged in the indictment, they constituted a nuisance; but any error in this respect was cured by the verdict of guilty. The instructions of the Court to the jury were quite as favorable to the defendant, as it was entitled to have, and the judgment must be affirmed. No error. Affirmed.