
    Hamilton Fripp, v. W. M. Hasell, et al.
    
    Such bafriers, whether natural or artificial, as clearly separate one's close from the adjoining lands, and are a sufficient protection against the inroads of horses, cattle and hogs, are sufficient also to render those liable as trespassers, who enter for the purpose of hunting.
    A deep navigable stream is equivalent to a fence; 6 Stat. at Large, 331; and land surrounded by such a stream is sufficiently enclosed, whether the land be cultivated or not.
    Tried before Mr. Justice Evans, at Gillisonville, Spring Term, 1846.
    This was an action of trespass, quare clausum fregit. The alleged trespass consisted in this. The plaintiff is the owner of an island about eight miles long, and three quarters wide; surrounded by the sea, and deep, navigable waters. There is a house, with a small but dilapidated fence surrounding it, where the plaintiff has sometimes resided, but at the time of the trespass it was untenanted. The plaintiff, some years ago, had given a general license, but how, was not explained, to all persons to hunt on the island, on paying him $1 75 cents per day. But this license had been revoked by an advertisement in the Mercury, published for some months before, and at the time of the trespass. The defendants went upon the island, and hunted two days. They killed one deer, but never offered to pay the plaintiff any thing for the privilege.
    The pleas were, the general issue. 2. That the land was unenclosed, and they entered to hunt. 3. A license.
    On the question of license, his Honor, the presiding Judge, told the jury, that if they believed the defendants had gone upon the land under the license to hunt, ignorant of the revocation, then they were not trespassers; but he thought this could hardly be, or they would have offered to pay, which had not been done. The license was general, and he did not see any reason why it might not be revoked, in the same general way, by public notice; especially as the defendants’ conduct, in not offering to pay, shewed they had not entered under the conditional license given to all persons. The real question, and that was much discussed, and he thought it very doubtful, was, whether defendants had a right to hunt on the island, as unenclosed land, under the authority of the case of M’Connico v. Singleton, and Broughton v. Singleton, reported in” Nott & M’Cord. The general proposition affirmed in those cases, is, the common right to hunt on lands unenclosed. This involved the question, what is enclosed land? The only definition is to be found in our fence act, which declares a deep, navigable stream, equal to a fence. If the island had been rich, arable land, and reduced in whole, or part, to cultivation, he thought it clear, the plaintiff would have been under no obligation to enclose it with any other fence. The deep water surrounding it would have been a sufficient enclosure to protect it against the inroads of horses, cattle, and hogs, under the fence law. From the best consideration he could give the subject, but, perhaps, with opinions leading him to maintain very strongly the proprietary rights of the landlord against the inroads of the hunter, he came to a conclusion, and so instructed the jury, that the plaintiff was entitled to recover. He thought this the better conclusion, and the jury found accordingly.
    The grounds of appeal are,
    1. Because his Honor erred in charging the jury, that a deep, navigable water-course, surrounding the plaintiff’s land, was a sufficient enclosure to make the defendants’ entrance thereupon, for purposes of hunting, a breach of his close, such as entitled the plaintiff to damages for a trespass; whereas, it is respectfully submitted, that said island being at the time vacant and uncultivated land, and otherwise unenclosed, a deep, navigable watercourse could not, of itself, make it an enclosure sufficient to affect the defendants with a trespass.
    2. Because his Honor erred in charging the jury, that the defendants were trespassers ab initio, for not paying to the plaintiff the amount per diem, required of all persons hunting on Fripp’s island; whereas, it is respectfully submitted, that the entrance being in the first instance lawful, could not be made wrongful by any thing subsequent, much less by the neglect to pay a debt, for which the plaintiff had a clear and adequate remedy otherwise.
    3. Because his Honor erred in charging the jury, that an advertisement in the Mercury newspaper, of the withdrawal of the plaintiff’s permission to hunt on Fripp’s island, was sufficient notice to the defendants to affect them with a trespass; whereas, it is respectfully submitted, that it was necessary to prove either personal notice, or at least that the defendants were subscribers to said newspaper.
    4. Because the charge of his Honor, and the verdict of the jury, were otherwise contrary to law and the evidence.
    E. Rhett, for the motion.
    Cited the cases of M’Connico v. Singleton, 2 Mill. Con. Rep., 244; and Broughton v. Singleton, 2 N. & M’C., 335. He urged that the act requiring a fence or deep water course, referred to cultivated lands; 6 Stat. at Lar,, 335; and said the advertisement in the newspaper was not sufficient notice, unless it was proved to have been taken by defendants, otherwise they should have been specially notified.
    Johnson, contra.
    
    Contended that the cases cited were not parallel cases; and that the notice of the withdrawal of the plaintiff’s permission to hunt on his island, had been as general as that of the permission had been. Said the defendants had remained two days on the island, and had subjected themselves to an action of trespass to try title. And that it was plain that they were trespassers ab initio, as they had never offered to pay the price of the license.
   Evans J.

delivered the opinion of the Court.

The verdict of the jury must be considered as having settled the question of license, so that the only question to be decided is, whether the defendants had a right to hunt on the plaintiff’s land, under the authority of the cases of M’Connico v. Singleton, 2 Con. R., 244; and Broughton v. Singleton, 2 N. & M’C., 335. In these cases, it is conceded that no such right exists by the common law of England; but it is said to have become a right, by the immemorial usage of the State, commencing with its earliest settlement, common to all the people to hunt on any uninclosed grounds. The exact meaning of these words, or what kind of enclosure shall exclude the right of the hunter, it is perhaps very difficult to define. The word enclose, in common parlance, means to surround or to include, and the term close, means that which is surrounded. But does this mean surrounded by something, which the labor and skill of man has placed around it, such as fences, or deep ditches, or walls of wood or stone or brick; or does it not also mean such barriers as clearly separate it from adjoining lands, whether they are the works of nature or the industry of man. We have no express legislation on this subject, but may we not safely resort for a guide to the analogous case, of what shall be a sufficient enclosure to protect the planter against the inroads of horses, cattle and hogs, whose right to go at large in the range, is derived from the same common origin, the common law of South Carolina. By the fence law of 1827, 6 Stat., 331, a deep, navigable stream, is declared to be equivalent to a fence, or in other words, where a field is surrounded, in whole or in part, by a deep, navigable stream, it is a sufficient enclosure to authorize the owner to empound stock depredating on his fields, or to subject him to the payment of the damages committed by them; such a stream is sufficient for a cultivated field, and as was well said in the argument, it would be strange if such a cultivated field should be sufficiently enclosed by the natural boundary of a deep, navigable stream, whilst one not cultivated should require in addition, a fence constructed by human labor. In any view which I have been able to take of this case, I am satisfied with the instructions given to the jury, on the trial below, and the motion is therefore dismissed.  