Mallet v. McCord

Beck, J. 1. Under the terms of the deed under which the parties to the ease claimed the sole right to fish in the mill-pond in controversy, the ancestor of the defendant (the plaintiff in error) had a mere personal right not appendant to an estate, — the right in gross, to take fish in said pond. Lee v. Mallard, 116 Ga. 18; Beach v. Morgan, 67 N. H. 529. 2. Such right in gross is neither assignable nor inheritable. 19 Cyc. 990, and cit. 3. Applying this principle to the undisputed facts of the case, the court did not err in granting the injunction against the defendant, and in refusing to enjoin the plaintiffs. Judgment affirmed-. All the Justices concur, except Fish, O. J., absent. The material parts of the deed are as follows: “Georgia, Butts County. This indenture, made and entered into this 25th day of May, 1883, between Harrel N. Byars and W. M. Mallet, of the first part, and John W. McCord Sr. and James R. McCord, of the second part, . . witnesseth, that the said [parties of the first part], for and in consideration of the sum of forty dollars to them in hand paid . . hath granted, bargained, and sold the right to keep and maintain a dam on the Yellow River creek in said county, . . to keep the water at its present height. . . And the said [parties of the first part], for the consideration above mentioned and the further consideration that they have the right to fish in said pond, will hereby warrant and forever defend the above-described right and privilege of back water unto the said [parties of the second part], their heirs and assigns forever in fee simple.” After hearing the evidence, the court enjoined the defendants •from fishing in the pond, and refused Mallet’s prayer for injunction. Mallet excepted.' Joseph B. Wall, for plaintiff in error, cited: 116 Ga. 376; 4 Ga. 52; 10 Am. & Eng. Enc. L. (2d ed.) 398, 403; 8 Id. 188; 15 Wall. 500; 7 Mees. & Wel. 63; 2 Ad. & El. 743; 8 Oreg. 334.