Skinner v. . Hettrick .

Settle, J. The plaintiff having commenced an action against the defendant to recover damages for obstructing his right of fishing in Albemarle Sound, obtained an order from the Court restraining the defendant from setting Dutch or pond nets in the sound except upon such conditions as are imposed by the act of 1874-75, chap. 115. A motion to dissolve the restraining order was refused, and the injunction continued to the hearing of the cause, from -which order the defendants appealed to this Court. *57 The bare statement of a few general principles will be sufficient to decide the question involved. 1. Albemarle Sound, being a navigable water, is not subject to entry, but every citizen of the State has the liberty and privilege of fishing therein. 2. While the owner of a beach has the right of drawing his seine to his beach, in exclusion of others, yet he cannot acquire the sole right of fishing, independently of all others, in a certain portion of the waters of the sound. 3. To constitute a several fishe'rv there must be a right of soil, which no person has in Albemarle Sound. 4. At common law, there could not be a several fishery in a navigable stream. 5. The regulation of the right of fishing in navigable streams is a proper subject of legislation, and has been treated as such in this State, by acts establishing lay days, and the like. Apply these principles to the case at bar. The defendant, by driving stakes for a mile and a quarter into the sound, made an exclusive .appropriation to his own use of that portion of the sound embraced within his pond, and materially interfered with the common right of fishing, as it had been enjoyed by all those operating the Long Beach fishery for many years. The winds and tides had always, during the fishing season, drifted the seine of the plaintiff over a portion of the ground which was enclosed within the defendant’s pond. And while the right of the defendant to fish over the same, or any other ground, is fully recognized, yet he had no exclusive and several right of fishing in that or any other portion of the sound. Shults on Aquatic Rights, 24 Law Lib., p. 100, says: “ Whatever opinions may be formed or whatever arguments may be advanced, in regard to a fishery in public streams being a royal franchise derivable from the crown, and claiming exclusively by grant charter or prescription, they must, we conceive, yield to the plain and incontrovertible fact adverted to by our earliest, as well as our modern writers, that every subject of common right may fish in the sea and in navigable rivers, un *58 less restrained or prohibited by the local usage of any particular place.” And he adds “ that such a private appropriation of fishery authorized by grant in a navigable river being incompatible with the public right, cannot exist in law.” This is broad ground, which we need not occupy for the purposes of this case. We are of opinion that the plaintiff is entitled to have the defendant enjoined from appropriating, exclusively to his own use, any portion of the waters of the sound, without calling to his aid the act of 1874r-’7o, which has already been referred to. We will remark, however, that we think the Legislature had the right to pass the Act under its power to regulate the right of fishing; and further, that the objection to the act, as being ex post facto, can avail nothing in this action, for while it may be so in so far as it makes the past act of setting and fishing any Dutch or pond net a misdemeanor, yet for the main purposes of the act, to-wit, the regulation of fishing in Albemarle Sound, it is not open to the criticism made by the defendants. Collins v. Benbury, 3 Ired. 277 ; Collins v. Benbury, 5 Ired. 118; Ward v. Willis, 6 Jones 183. The judgment of the Superior Court is affirmed. Let this be certified, &c. Pee Cueiam. Judgment affirmed.