
    
      Daniel McCullough vs. William Wall.
    
    Title presumed in the United States to the Mount Dearborn tract, as it was originally granted, from long possession of it held by the officers, agents, &c. of the General Government, under a deed which had been made to Mr. Jefferson, President, his successors and assigns: there being wanting to perfect the title the will of the grantee to authorize a conveyance by his executor, and a conveyance from Mr. Jefferson to the United States.
    A patent, signed by the Secretary of War, and authenticated by the seal of the War Department, held sufficient to convey land in South Carolina from the United States to the State, without the attestation of witnesses: — Congress having directed the Secretary to convey, and the State Legislature having impliedly recognized the jus disponendi and the sufficiency of the conveyance as proposed.
    A deed referred to a plat annexed — the deed and plat, when produced, were separate, but had evidently been once annexed by wafers. It was admitted that the plat was the same which was referred to. No other explanation of the mutilation was required.
    The parties to a deed acquiescing, a third person cannot invalidate it by shewing what might, if urged by one of them, be considered a fraud or mistake.
    The occasional occupation of a station in water for one or two months every year, during the fishing season, is not such a possession as will acquire a title under the statute of limitations.
    The presumption of a grant will not arise where the use has been permissive, and there has been change of claimants without any conveyance from one to another.
    A grant or conveyance of land bounded by a river, not technically navigable, extends to the medium fihm aijuce, unless the terms used in the writing clearly denote the intention to stop short of that line: and notwithstanding a survey directed and made of only the land not covered by water, the price fixed by computation per acre according to that survey, parol declarations of the intention of the parties to include only the land to low water mark, and corner trees marked on the bank and on the plat annexed to the deed, still the meaning of the words used in the writing, and not any extrinsic evidence of intention, must prevail.
    Islands in rivers fall under the same rule as to the ownership of the soil and its incidents as the soil under water does: if not otherwise lawfully appropriated, they belong to the riparian proprietor on one side, or are divided' in severalty between the proprietors on both sides, according to the original dividing line, or filurn aguce, as it would run if the islands were under water.
    The aguce is ascertained by measurement across from ordinary low water mark on one side to the srme on the other side, without regard to the channel or depth of water. If that margin of an island which lies next to a riparian proprietor and on his side of the middle of a whole river, has been lawfully appropriated by another person, then such proprietor’s boundary is the Atom midway between his bank and the island; otherwise, his boundary is the original fihm of the whole river, measuring from bank to bank across the island.
    
      The extent of a riparian proprietor’s ownership in a river is measured by lines perpendicular to the bank, without regard to the course in which the lines of his tract run to the river.
    The ownership of the soil in a river is subject to servitudes or public easements — to the right of the public to improve the river, and to use it as a highway, unobstructed for transportation and for passage of fish, and subject also to regulations lawfully enacted for the public good. Thus subject, the ownership of the soil gives the exclusive right to fish thereon, which is not common to all citizens, and differs altogether from the public right to have the passage of fish unobstructed.
    What are navigable rivers 1 The common law definition (those in which the tide ebbs and flows,) has not been changed by any authoritative decision in this State. The Court is not likely to extend the rules which apply to rivers technically navigable, to any rivers above the falls which naturally obstructed any serviceable use of the water for transportation: above those falls, at any rate, tire common law, as to the ownership of the soil, and the right of fishing incident thereto, subsists unchanged.
    
      Before Wardlaw, X, at Chester, Fall Term, 1849.
    The report of his Honor, the presiding Judge, is as follows: “This was an action of trespass to try titles, wherein the plaintiff sought to recover a certain rock, usually covered by water, in the Catawba river, which the defendant occupied as a fishing station.
    “The rock is called ‘Julius’s Rock,’ from one Julius Beckham, who many years ago put a ring and bolt into it for fastening a canoe. It is near the foot of the Rocky Mount Shoals ; is some hundred yards below the Huckleberry Landing; and is between the western bank of the river and Hill Island. The width of the stream east of Hill Island is less than that west of it; the greatest depth of water and main channel is west of the island, and between the island and the rock — near to the rock.
    “The plaintiff claims the rock as part of the Mount Dearborn tract, of which he is in possession, which lies on the west side of the river, mainly above the rock. The southern line of this tract, prolonged to the island in the same course it runs to the bank from the west, (that is, a course somewhat up the river,) would pass a short distance below the rock, and the part of the line between the rock and island would be greater than that between the bank and the rock. A line from the rock, perpendicular to the bank, would strike the Mount Dearborn tract; and the surveyor who measured the width of the river in the course of the southern line of the tract, thought that along the perpendicular line the rock is nearer to the bank than to the island; two other persons, very familiar with the place, thought otherwise; but all agreed that from the bank to the rock is very shallow, and, in great part, often uncovered.
    “The plaintiff adduced,
    “1. A grant to W. Moore for 250 acres, (by re-survey 520,) dated 7th July, 1772, described as being bounded by the Catawba river, at the great falls; the whole river, without island, being-laid down in the plat as the eastern boundary, and trees being marked as corners at the points where the northern and southern lines meet the river.
    “2. A deed from Isham Moore (professing to convey as executor of William Moore, under a power conferred by his will,) to Thomas Sumter, dated 12th November, 1802, of the land granted as above. A plat annexed represents the river as a boundary.
    “3. A deed from Thomas Sumter to Thomas Jeiferson, President of the United States, ‘ to him, his successors in office, and assigns,’ dated 20th November, 1802, of the land granted to William Moore, as above, ‘bounded N. E. by the Catawba river.’
    “4. A patent, under the seal of the War Department of the United States, signed by William Wilkins, Secretary of War, certifying that, in conformity with arrangements made between this State and the United States, the right and title of the United States in the ‘Mount Dearborn tract’ upon the Catawba river were thereby conveyed to the State of South Carolina, dated 6th May, 1844.
    “5. A deed from-Leland, Superintendent of Public Works in South Carolina, to the plaintiff, dated November, 1844, shewing that a portion of the Mount Dearborn tract had been previously conveyed to other persons, and conveying the eastern portion, that next to the river (except the Rocky Mount canal.) The words of description in the deed are ‘ the remainder of said (Mount Dearborn) -tract, containing 400 acres, more or less,’ represented by a plat annexed, made by J. Y. Mills, surveyor. The plat represents trees as corners where the northern and southern lines of the tract, running from the west, meet the river, and represents Hill Island as lying in the river nearer to the eastern than to the western bank; situated so that a line drawn from the middle of the river above the island to the middle of the river below, would pass through the island; and so that the southern line prolonged would pass through the island. Another island, not named, is represented in like situation, through which the northern line prolonged would pass.
    “When this deed was produced, the plat (admitted to be the same which the deed refers to,) was separate from it, although manifestly it had been attached by wafers.
    “The plaintiff further shewed that searches for Wm. Moore’s will had been made in vain; that at the Rocky Mount Shoals or great falls the Catawba river is plainly unfit for any navigation, and is probably incapable of improvement, except by a canal; that in no state of the water could any boat be taken up, and only with very great risk, and in high water, could an empty boat go down safe; although below these falls, and for some distance above, (except at the Landsford Shoals, 14 miles above,) the river has been used for boating; and that, by Acts of the Legislature, 1787 (7 Stat. 549,) and 1789, (5 Stat. 96,) for the improvement of this river, ‘ to be made navigable/ the Catawba Company was invested with large privileges; further, that by Act in 1795, (5 Stat. 260,) the General Assembly of South Carolina enacted that the United States, ‘or any person by them authorized/ might purchase lands in South Carolina, not exceeding 2,000 aeres, to be held in fee simple, for the establishment of forts, magazines, &c.; that prior to 1805, the tract conveyed as above by Gen. Sumter to Mr. Jefferson, then called Mount Dear-born, was occupied by the General Government, and large buildings erected on it; that soldiers and artisans were there stationed and employed by the General Government until 1814, and after their removal possession was held by an agent of the General Government for two or three years, after which visits were paid to the place by some person professing to act by authority of the General Government, and rent-fish collected, as hereinafter mentioned, the right of the United States being unquestioned, until the entry of the Superintendent and of the plaintiff, under the papers aforementioned; that an Act of Congress, passed in 1829-, (4 Story’s Stat. of U. S. 2170,) authorized the Secretary of War to convey the Mount Dearborn lands to the State of South Carolina ; that in 1843 a resolution of the General Assembly of South Carolina recommended the purchase of this tract by the State from the United States, upon terms which had been settled by commissioners appointed, one on the part of the State and one on the part of the United States; an appropriation of $3,700 was enacted, ‘for the purchase of the Mount Dearborn lands,’ and an Act was passed, authorizing the Superintendent of Public Works to convey to Daniel McCullough, the plaintiff, all the right of the State in the said lands, as soon as he complied with the terms of a contract which the Superintendent had made with him, and the United States made titles to the State: and that, under the deed to him, the plaintiff had taken possession of the buildings on the tract, enclosed a field across a path which led to the Huckleberry ferry, erected a factory for spinning cotton near the head of the shoals, and forbid the defendant from occupying the Julius Rock for fishing, and from using the path aforesaid to reach the fishery.
    “The defendant moved for a nonsuit, on these grounds:
    “1. The will of William Moore has not been proved*, and so the executorship of Isham Moore and his power to convey have not been shewn.
    “2. The deed from the Superintendent to the plaintiff has been mutilated by detaching the plat from it, and no explanation has been given.
    “3. The Catawba river is a navigable river; no grant of any part of the river results from a grant of land bounded by it, and all citizens have an equal right to fish in it.
    “4. The deed from the Secretary of War is without witnesses. It is not such a paper as the law of South Carolina requires for the conveyance of land in this State, even if the title was in the United States; but as the legal title was in the heirs of Mr. Jefferson, it could have conveyed no legal interest, even if it had been in the required form.
    “I overruled the motion. I thought that the possession which had been shewn authorized the presumption of William Moore’s will, and, if necessary, of a conveyance from Mr. Jefferson to the United States.
    “I thought that the plat had been detached from the Superintendent’s déed, by some accident in its use; and that this was so manifest as to require no further explanation.
    “ I thought that, as to the character of the river, navigable or not, there was at least evidence in favor of the plaintiff’s view sufficient to go to the Jury.
    “ I was of opinion that a conveyance to the person who was President, and his successors, was not, in the absence of all special provision on the subject, a conveyance to the United States; and that if it was a conveyance to the officer, and not to the person, it was a conveyance to a corporation sole, not authorized by the Act of 1795, or other law of South Carolina; but that it was a conveyance to the person, whereby Mr. Jefferson became trustee for the United States, and that without presumption of a conveyance from him to the United States, the title was still in his heirs; that that presumption might be made, and so the title in the United States was shown. I was satisfied that the authorized act of a Department of the United States Government, should be authenticated by the seal of the Department, and not by the attestation of witnesses; but my first impression was, that it had not been made to appear that South Carolina had conferred upon the United States authority to convey this land in South Carolina; and if that did appear, that the law of South Carolina had not given validity to the form in which the United States had conveyed. I intimated my impression, saying, however, that the case would be sent to the jury, that it might be put into such form that a final decision of it might be had without another trial, whether I was right or wrong. Subsequent reflection induced me to correct my first impression, and I said so in my charge. I would have been better pleased, if there had been an Act of our Legislature expressly authorizing the United States to convey, and legalizing the form which they might adopt. But without such Act, I thought that in a power to hold in fee is strongly implied a power to convey; that the Act of 1843 recognized the power of the United States to convey as existing; that authority given by the State for the United States to convey had necessary reference to the character of the body authorized, and, by implication, contained the assent of the State to such form as the United States Government, by regular proceeding, should direct; and that the conveyance of the United States' here having been made to the State, and not to an individual, and having been accepted by the agents’of the State, the title conveyed was good.
    “ From the defendant’s evidence and references to public proceedings it appeared that, in 1817, the Legislature, by Act, (6 Stat. 92) appropriated, under certain conditions, $20,000 for the purchase of the property and privileges granted by the aforesaid Acts of 1787 and 1789, to the Catawba Company; that under various Acts of the Legislature, from 1817 till 1830, improvements had been made in the Catawba river, a canal, with locks, had been made round the Rocky Mount Shoals, another round the Landsford Shoals above, and a third, below, called the Wateree canal; that at, various times commissioners of fish-sluices on the said river had been appointed; that in 1818, a boat, said to be loaded with cannon balls, but not known by the witnesses to be otherwise than empty, was seen, in high water, to pass the Huckleberry landing, and near to Julius’s Rock, and was supposed to have come through all or a part of the falls above; and that in 1823, another boat, empty, was, in high water, let down by ropes over the upper part of the falls, very near to the lock of the canal, then incomplete, and was supposed to have gone through; that from the Wateree canal down, the river is habitually navigated, and above Landsford, for some considerable distance, it may be and has been navigated, but that since 1835, or thereabouts, the locks have been out of order, the canal disused, and no boats have passed or have come from above to the old portage round the shoals — that Mr. Robinson, at a sale made by the Commissioner in Equity, at Lancaster, for partition, purchased Hill Island, and claims, and for eight years has enjoyed, without molestation, the rights of a proprietor, (as the persons under whom he purchased were said to have done,) using it every year five or six weeks in the Spring for fishing, but not otherwise occupying it; — that for forty years or more, all the neighboring inhabitants who pleased, have used the old path aforementioned, which led from a public road by the United States Barracks down to the Huckleberry Landing, and thence along the river bank to a point opposite the Julius rock, and to other places of fishing, and have fished in the river thereabouts, at their pleasure, although some person, claiming to be an agent of the United States, had required payment of one-third or one-fourth of the fish caught, for rent, and had, after a while, required another sixth to be paid for the privilege of landing at the Huckleberry landing; that the Julius rock was, in the fishing season, used by Mr. Crenshaw, afterwards by defendant’s brother, and then by defendant, who kept it every year for nearly or quite ten years before the commencement of this suit, and since the commencement. That the plaintiff’s contract with the Superintendent was to take the land at $8 62J per acre, and by directions of the Superintendent and the plaintiff, Mr. Mills, the surveyor, ran only to low-water mark, and the price was calculated, and the plat made, according to that running.
    “ For the plaintiff it further appeared, that Mr. Mills had run on the lines of the original grant, and knew the land in his plat to be land which was within the grant, although not the whole of the land in the grant; and that Mr. Aiken, who measured the line across the water and made a plat which the plaintiff adduced, had run only a part of the southern line, and taken the other lines from Mr. Mills’s plat.
    “I was of opinion that the extent of the land conveyed by the Superintendent must be ascertained from the words of his deed, and not from parol evidence of the intention of parties, contra-distinguished from the meaning of those words; that the words of the grant, and of all the deeds, would make the filum, aquae the boundary, if the character of the river did not, by law, prevent ; and that the filam aquae, was east of the rock, even although that might be nearer to the island than to the western bank, if the middle of the whole river was east, and the main channel was east; that the price of the whole tract may have been ascertained by computation of the part above water, and yet the part under water have been purchased. The facts involved were submitted to the jury.
    “ I knew of no statute in South Carolina, prior to the Act of 1784, (requiring that, in all surveys for grants on rivers navigable for ships or boats, four chains back shall be run for one chain in front) which altered the common law, whereby all rivers in which the tide does not ebb and flow, belong to the riparian proprietors, subject to the right of the public to use them as highways ; but conceding that by some statute or authoritative decision, it had, even prior to 1772, been the law of South Carolina, that upon a river navigable for boats, a grant conveys the soil only to the water’s edge, upon the question as to the plaintiff’s right to the soil upon which the Julius Rock stood, I left it to the jury to decide, whether in 1772 the Catawba river was a navigable river. Subsequent legislation I held might have established public rights, without taking away the soil previously granted.
    “ I was inclined to question the rule, that rivers navigable for boats are publici juris for fishing; but I laid down the law according to that rule, and held, that if a river was navigable below and above the shoals, then the shoals themselves were fublici juris, although a canal round them may have been provided by the public, and been used for navigation. As to the defendant’s right to fish at the rock, even if the soil were the plaintiff’s, I then directed the jury to inquire whether at the time of the alleged trespass, the Catawba river was navigable above . and below the Rocky Mount Shoals.
    
      “ The jury found for the plaintiff the Julius Rock and five dollars damages.”
    The defendant appealed, and now moved this Court for a non-suit, on the following grounds, viz:
    1. Because the grant to William Moore, under which the plaintiff claims, was not located, as the lines were not run, nor the marks found ; and it is apparent from inspection of the plat attached to the grant under which the plaintiff claimed, and the plat made by Hugh Aiken, plaintiff’s surveyor, that they are not for the same lands.
    
      2. Because there was no legal evidence of the will of William Moore, and the deed from Isham Moore, his supposed executor, to Thomas Sumter.
    3. Because there was no such possession of the tract called Mount Dearborn, by those under whom plaintiff claims, as would enable him to recover in this case.
    4. Because it clearly appeared from the evidence on the part of the plaintiff, that the title to the land now in dispute, under which the plaintiff claims, was in Thomas Jefferson, and now is in his heirs or legal representatives.
    5. Because the deed from William Wilkins, Secretary of War, to the State of South Carolina, being without a witness, is null and void, and the deed conveys no right, as there was no authority shown, empowering the Secretary of War to sell or convey lands belonging to the United States.
    6. Because there was an entire want of proof on the part of the plaintiff to shew legal title in himself, and motion for non-suit being made, and the opinion of the Court being, that the motion must prevail, yet at the pressing solicitations of plaintiff’s attornies, the Court permitted the case to be submitted to the jury.
    And failing in that motion, then he moved for a new trial, on the following grounds, viz:
    
      1. On all the above grounds as far as applicable.
    
      2. Because the deed under which the plaintiff claims does not cover the land in dispute, as the plaintiff purchased by the acre, and the survey made by J. Y. Mills, was only to low-water mark.
    3. Because his Honor erred, as the defendant supposes, in stating to the jury in his charge, that it mattered not whether the Superintendent of Public Works and the plaintiff intended, at the time the deed to plaintiff was executed, to include the bed of the river or not, if the Catawba was found by them not to be a navigable river.
    4. Because his Honor should have charged the jury, that if it was not the intention of the parties to the deed to the plaintiff, to include the bed of the river, then it did not pass, whether it was or not a navigable river, as plaintiff bought by the acre and would not include the bed of the river in the calculation.
    5. Because the Catawba river is a navigable river both in fact and under the Acts and Resolutions of the General Assembly of this State.
    6. Because the defendant had a right to fish in the channel of the Catawba river, and his fishing on the Rock (Julius’s Rock) was according to law and usage of the State for forty years or more.
    7. Because the defendant had a right to the Rock sued for by the statute of limitations ; and the more especially so, as the Rock is nearer to the eastern bank of the river.
    8. Because the deed of the Superintendent of Public Works to the plaintiff, was void by reason of being mutilated, the mutilation not having been explained by evidence, and his Honor should have so charged the jury.
    
      Eaves Thomson, for the motion.
    
      Gregg fy McAlilly, contra.
   Curia, per

Wardlaw, J.

The various grounds taken by the defendant for a non-suit or new trial, have been considered by this Court in connexion with the parts of the report which relate to them severally, and for the opinion of this Court, the observations made in the report will be adopted, wherever they áre approved and seem to require no addition.

The testimony of the surveyors furnishes an answer to the first ground for non-suit.

The second, third and fourth grounds for nonsuit are answered by the evidence of possession by the United States, and the presumptions thence arising. The claim and possession were, according to the description of the deed from General Sumter to Mr. Jefferson, co-extensive with the grant to William Moore; and the presumptions establish the authority of Isham Moore to convey, and a conveyance from Mr. Jefferson to the United States, in effect a title in the United States to the land as it was originally granted.

The sixth ground for non-suit is sufficiently answered by the report; and to the observations there made in relation to the fifth, little need be here added. Two witnesses are ordinarily requisite to a conveyance of land in South Carolina. (Craig vs. Vinson, Cheves, 272.) But the Act of 1795, (5 Stat. 526) by the form it prescribes and the words, “ from one person to another or others,” used in its first section, shows that it contemplated only conveyances between natural persons, and must be construed so as to reconcile it with other law which regulates the mode by which acts of State shall be authenticated. Under the authority given by South Carolina to the United States (5 Stat. 260) to purchase “ the fee simple of any quantity of land, not exceeding two thousand acres, for the purpose of erecting arsenals and magazines thereon,” the jus disponendi passed with the fee simple to the United States, to be exercised whenever the purpose of the purchase had been abandoned or accomplished. It could be exercised only, as a Government performs alL acts, by some regularly constituted authority. The Acts of 1843 (11 Stat. 253, 272, and Res. 109) subsequent to the Act of Congress (1829, 4 Laws of U. S. 2170), which authorised the Secretary of War to convey the land to the State of South Carolina, recognized the sufficiency of the conveyance proposed to be made; and the conveyance of the Secretary of War was the act of the head of a department having a seal, and was properly authenticated by that seal, and not by the attestation of witnesses. (1 Green. Ev. § 479.)

Of the grounds for new trial, the eighth is sufficiently answered in the report. As to the second, third and fourth, it is clear that the words used in the deed from the Superintendent of Public Works to the plaintiff, cannot derive any meaning, different from the ordinary legal signification, from the acts or words of the parties ; and that the words of the deed convey to the plaintiff whatever was then the remainder of the Mount Dearborn tract.” (3 Kent’s Com. 428.) This description extended the boundary on the east to the original boundary of the tract as it was granted in 1772. Much has been said of the fraud, which it is supposed would be consummated by the plaintiff’s now holding half of the river, after having, before his purchase, directed a survey to embrace only the land uncovered by water. It is easy to understand how the price of a whole may be fixed, by ascertaining the value of a prescribed part; but if it be conceded, that the plaintiff and the Superintendent both declared their intention to make the low water mark the boundary, the question is at last only whether any parol declarations shall avail to control the meaning of the writing, by which the intention of the parties was expressed. If a fraudulent contrivance, or mistaken use of words, has defeated the intention of the parties, they may have inquiries and adjudication between themselves ; but, they acquiescing, the deed subsists, and the question which a third person may raise is not, Should the deed be rescinded ? nor, Does it truly express the intention of the par-lies ? but, What does it mean ? The case of Noble vs. Cunningham (McM. Eq. 289) shews that corner trees marked on the river bank have not influence (where a river not technically navigable is the boundary) to stop short of the filum acquce the rights of a purchaser, whose deed refers to a plat shewing such corners.

The fifth, sixth and seventh grounds for new trial present the points which have been most debated, and the questions under them will be considered without regard to the order which they indicate.

The possession of the defendant of the rock for a month or two every Spring, was not such a continuous possession as could give to him a title under the statute of limitations. (Jackson vs. Lewis, Cheves, 260.)

No presumption'of a grant to the defendant of either the rock, or of a right to fish at it, can arise from the use which he and those under whom he claims made of the rock; for the use was permissive, accompanied by such distinct acknowledgment of right in another as the payment of rent implies, and interrupted by change of claimants without transfer of title.

The rock in question is west of the main channel, which runs between it and Hill Island, but it is doubtful whether, in a line perpendicular to the river-bank, the rock is nearer to the island or to the bank; it is, however, far west of the middle of the river, measuring from bank to bank across the island. The jury were instructed that, under these circumstances, the rock was west of the medium filum aquae: and to that instruction objection is made. The evidence shewed that the water west of the rock was shallow, and that in dry summers much of it disappeared ; the low water mark may have been, as Mr. Aiken thought it was, nearer to the rock than the island was, but there was contrariety of testimony on this point, which the instructions rendered it unnecessary for the jury to consider. We must then look to the propriety of the instructions. The situation of the main channel, whether east or west of the rock, is unimportant, for the ordinary low water mark on each side having been fixed, the medium filum aquae is ascertained by measurement across, without regard to the depth of the water. The question then is whether the measurement to fix the boundary of plaintiff’s rights should be from his bank to Hill Island, or to the other bank of the river.

If the western margin of Hill Island belonged to another person, the exact boundary between that-person and the plaintiff would be midway between the island and the western bank of the river. But islands in rivers, like rocks, (which are only small islands,) fall under the same rules concerning ownership which apply to the soil covered by water. This proposition, which Seems to have been established by a consideration of the instances of islands formed by alluvial deposits, embraces all islands, whether of recent formation or remote origin. (3 Kent Com. 427; 2 Bla. Com. 261; 4 Pick. 269; Harg. Law Tr. 5—36.) If they have not been otherwise appropriated by some lawful means, they belong in severalty to the owners of land on each side of the stream, according to the line of division which would have existed if they had continued under water. An island lying on one side of the filum aquae belongs to the owner of the bank on that side, if no opposing right to it has been lawfully acquired by another person. If it is situated so near the middle of the river that the original filum aquae, passed through it, and no opposing right has been acquired, it belongs to the owners on the two banks, according to the original dividing line.

Upon the supposition of there being nothing in the character of the river to forbid, the plaintiff’s right, under the grant of 1772, extended prima fade to the middle of the river, or original dividing line; and to rebut the title shewn by him, less evidence did not suffice as to the islands and soil covered by water which were included within his boundaries, than would have served as to his land on the western bank of the river. Now there was no evidence that the portion of Hill Island, which lies west of the original filum aquae, belonged to any third person: no grant of it from the State appeared, nor any such possession as could give a title under the statute of limitations. A claim of one Robinson, said to be under a sale made at Lancaster, was spoken of, but no papers were adduced nor any evidence given which shewed the validity of the claim to any portion of the island, much less to that portion which lies west of the middle of the river — that is the dividing line between the districts of Chester and Lancaster. Nothing then limited the plaintiff’s rights to the filum aquae between his bank and Hill Island, and the instructions on this head were proper.

The jury have found that the Catawba river, where it is the boundary of the land granted, was not, in 1772, the date of the grant, navigable for boats. If it has since been made navigable, the right of the public to use it as a highway has been asserted, but the right of the grantee and those claiming under him, subject to the rights which the public have in the river as a highway or easement, continues to the soil granted ad filwm aqua., as it vested at the grant. A subsequent improvement of the river, or change of the law relating to the soil of rivers, could not divest the rights of soil which had been granted, further than was required for some public purpose.

The jury have also found that the river, where it is the boundary of the plaintiff’s land, was not, at the time of the alleged trespass, navigable for boats — and this, too, upon the supposition, that, if a portion of it above and a portion below was so navigable, then the intermediate portion obstructed by falls must have the same legal character. It follows that even if all rivers navigable for boats are held juris publici for fishing as well as for navigation, and if a right to fish includes a right to fasten a boat to a rock which rises above the water wherein the right exists, still the defendant is not justified in his trespass upon the plaintiff’s soil by the right to fish at the rock in question.

It is, however, urged by the defendant, that it was not for the jury to decide whether the river was navigable; that it is made navigable by Acts of the Legislature, and must be deemed by the Court to be so; and that therefore the soil of it is not the plaintiff’s, and, if it is, the defendant has the right of fishing in it which belongs in common to all citizens.

Various Acts of the Legislature, from the year 1753 to the year 1810, (7 Stat. 504, 532, 549, 562, 578; 9 Stat. 212, 254; 5 Stat. 94,) shew that repeated attempts were made to render this river navigable: and these Acts, by their very words, contain an admission that originally the river was not easily navigated by boats above the rafts which were below Camden, and that in the last mentioned year it was not navigable by any species of craft above the foot of the great shoals below Rocky Mount. Subsequent legislation and the evidence taken in this case, shew, however, that between 1817 and 1830 large appropriations from the State Treasury were made for the improvement of this river above Camden, canals were made around the Rocky Mount shoals and other shoals, and up to the North Carolina line the river was treated by the public authorities as being fit for navigation, and was for a short time actually used by boats: and that the public works therein are yet somewhat preserved,- although disused. Since the year 1785, (5 Stat. —; 6 Stat. 340,) and perhaps before, there have been provisions made by law for keeping open fish-sluices on the river, and preventing obstructions to' the passage of fish. (The State vs. Thompson, 2 Strob. 12.) We will give to the public appropriations and to the instances of actual navigation the effect to shew that the river was, at the time of the alleged trespass, navigable for boats, or floatable (to use a word which Chancellor Kent has taken from the French) — and will even concede that the plaintiff is in no better situation than if his original grant bore even date with the deed from the Superintendent to him; still we are of opinion that the soil at the rock was the plaintiff’s, subject to servitudes for the public use, and that the defendant had not a right to fish there.

By the common law only those rivers were deemed navigable in which the tide ebbs and flows: and “grants of land bounded on rivers, or upon the margins of the same, or along the same, above tide water, carry the exclusive right and title of the grantee to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river : and the public, in cases where the river is navigable for boats and rafts, have an easement therein, or a right of passage as a public highway.” (3 Kent’s Com. 427.) “Where a stream is used in a grant as a boundary or monument, it is used as an entirety to the centre of it, and to that extent the fee passes. Prima facie, said the Vice Chancellor of England, the proprietor of each bank of a stream is the proprietor of half the land covered by the stream.” (3 Kent’s Com. 428 — citing 1 Sim. & Stewart, 190; 17 Piqk. 41.) But these settled principles of the common law are said to have been changed in our State by adjudged cases, and reference is made to the case of Cates vs. Wadlington (1 McC. 580). To the judgment in that, case no one would impute error: in some of the observations which the opinion contains, sufficient attention seems not to have been given to the distinction between the proprietary interest which the State for the public use has in a public navigable river, and the easement, so essential to public convenience, which the public have in a river not navigable, yet fit to be used as a highway. The point really decided was, that a vendee cannot have an abatement for deficiency of quantity where the conveyance to him contains no warranty, and he is undisturbed in the enjoyment of whatever interest the vendor had in the whole land conveyed. Judge Nott, looking to the importance of preserving unobstructed the public right to use streams which might facilitate transportation, says that because of the greater length of our rivers than of the insular streams in England, the common law rule, which regards no rivers as navigable but those in which the tide ebbs and flows, will not do for uswhilst he declines to define what shall be considered a navigable river in this State, he ventures to say that “that, cannot be considered a navigable river the natural obstructions of which prevent the passage of boats of any description whatever.” Such, we may observe here, was the Catawba above the falls at the date of the grant to William Moore, and for a long time afterwards: and such, in the entire disuse and dilapidation of the public works, it is now and has been for more than ten years past.

The occasion does not require any exact definition to be now given of a navigable river, according to the law of this State, in which the ownership of the soil shall not belong to the riparian proprietors: perhaps the principal occasion of dispute on the subject has been the use of the term navigable, which has a popular signification different from the technical one which is given to it by the common law. We can, however, safely say, that no authoritative decision has yet been made in this State which has changed the common law on the subject. Arguments on both sides, drawn from considerations of policy and the law of other countries, have been addressed to us. On one side are commendations of the common law rule, for its wisdom and careful protection of all rights involved, its adoption by many of our sister States which are traversed by large fresh water rivers, its Certainty, and the unquestionable authority on which it rests: on the other side are the examples of continental Europe, Pennsylvania, Alabama, and some others of these United States, the civil law, and inconveniences thought to result from subjecting to a rule which was formed for short and small streams, mighty rivers, upon which, as upon inland seas, ships that have crossed the ocean may be safely navigated far above the reach of the tide. (2 Conn. 481; 20 Johns. 99; .3 Dev. 61; 16 Ohio, 540; Angel on Water Courses, 14, 19; Hilliard on Real Prop. 92, 94, 139; 3 Kent Com. 428, 430, notes; 2 Binney, 475.) The rivers of our own State are not of remarkable magnitude, and whether we adhere to the common law definition or consider as navigable all rivers that may be navigated by sea vessels, or all that are by nature floatable, we hesitate not to declare that this Court, if it should feel itself at liberty, from considerations of public convenience, to assume legislative discretion in the matter, is not likely by any decision to extend the rules which, by the common law, are applicable to navigable rivers, to any stream above those falls which by nature obstructed the serviceable use of its water for transportation. Above those falls, as below, the right of the public to improve a river, and to use it as a highway, subsists: to that the proprietary right in the soil is subject; but so subject the proprietary right exists in the owners to whom it has been granted — above the falls, at any rate, as we may now safely say.

And so in regard to fishing in the rivers. “A right of fishing in navigable or tide waters is a common right. In rivers and streams not navigable as tide waters, the owners of the soil over which they flow have at common law the exclusive right of fishing, each on his own soil, unless some other person can shew a grant or prescription for a common of piscary, in derogation of the right naturally attached to the ownership at' the soil: and such right is held subject to the public use of the waters as a highway, and to the free passage of fish, and in subordination to the regulations to be prescribed by the Legislature for the general good.” (3 Kent’s Com. 418.) The right of the State to keep open fish-sluices, and to provide for the passage of fish in all streams, is a public right familiarly exercised in this State ; but that, like the right to use the water for transportation, is consistent with, although superior to, the proprietary right in the owners of the soil, and differs altogether from that common right of fishing which belongs to every citizen in a river navigable by common law. If the public easement is satisfied by a part of the stream, or by its use at certain times, wh^te'Véf'i'eiri.ains belongs to the owner of the soil: but where/tfilua.íá' ¿e^lxSli|sive ownership of the soil, as in tide watej^t^'cómmon .ri^ft^of fishing extends equally to every part of t^'rivq£jan^p»afl W^es.

We have cases in which expra&Mr have been ffsed. that plainly shew the understanding oflhejJiadg'gjs-%dio used them, that in this State all rivers navigabja^qVboats ape'¡Juris publici for fishing: and under those cases, connecfda wim the public acts which shew that the Catawba above and below the rock in question has been considered navigable, the defendant attempts to shelter himself. He is right in saying that if the river is juris publici for fishing, its whole width from bank to bank is so: and that a public canal around shoals may be regarded as a small branch of the river running round an island suddenly formed: therefore, that if the common right of fishing exists above and below the shoals, it exists also at the shoals. But the points decided in the cases upon which the defendant rests, do not maintain the right he claims.

In Boatwright vs. Bookman et al. (Rice, 447,) the questions, concerning the legal character of the river, (which there was the Congaree, at the shoals round which the Columbia canal passes,) and concerning the ownership of the soil, were expressly reserved; but yet, in consideration of the right which the public had to use the river as a highway for transportation and the passage of fish, and in neglect of the distinction between a public easement in private property, and a common right in things not subject to appropriation, it was taken for granted that “ the right of taking fish there was common in equal degree to the whole community.” The matter really adjudged was only that a plaintiff, who, under a license from the proprietor of the adjoining island, had placed a fish-trap so as not unlawfully to interrupt the navigation or the passage of fish, might maintain trespass against the defendants who broke his trap. This is altogether consistent with the rule which gives an exclusive right of fishing to the riparian proprietor, subject to the right of the public to have unobstructed the navigation and passage of fish in the river, but is not plainly reconcilable with the notion of a common right in every citizen to fish in every part of the river — which latter right seems to forbid the continued enjoyment by any one of permanent fixtures in the river for his exclusive benefit.

The case of Jackson vs. Lewis et al. (Cheves, 259,) (relating to the Catawba river at a place a little higher up in the same shoals that the rock now in question stands in,) again leaves undecided the questions which were reserved in Boatwright vs. Bookman, but holds the defendant answerable in trespass for destroying the plaintiff’s fish-trap; because, first, if the river was one in which there could be exclusive ownership of the soil, and of the right of fishing as incident thereto, the plaintiff’s grant was oldest; and second, if the river was like one navigable at common law, the defendant had unlawfully disturbed the plaintiff in Ihe actual enjoyment of that which was of common right, and which the plaintiff might therefore enjoy whilst he possessed it. The first view is, according to our opinion of the legal character of the river, conclusive; and in the judgment of this case, as of the two others we have examined, we entirely concur, whilst we dissent in each of them from some of the propositions that are advanced in the argument. It is thus seen that no case has been yet decided here which alters the common law as to the right of fishing in rivers where the tide does hot ebb and flow, any more than as to the ownership of the soil •.herein. We feel safe in saying, concerning the right of fishing, as we did concerning the ownership of the soil, that the common law is yet unchanged in this State — at any rate above the falls, which, in their natural state, obstructed the serviceable use of the rivers.

Looking, then, either to the finding of the jury upon the questions submitted to them, or to the deductions which the defendant has drawn from the public acts concerning this river, we see no reason to divest the plaintiff of the title which he has acquired to the rock in question, or to justify the defendant in the trespass he has committed on it.

The motion is dismissed.

O’Neall, Evans, Frost and Withers, JJ., concurred.

Motions dismissed.  