
    *Alex. & Fred. Railway Co. v. Faunce.
    March Term, 1879,
    Richmond.
    F leased from *Mrs. O the land and a fishery in the Potomac river, where the tide ebbed and flowed, with all the privileges attached thereto, for five years, at a rent of $500 a year. He built the necessary buildings, and cleaned out the fish-berth, and was largely engaged in carrying on the fishery. Pending the lease the Alexandria and Fredericks-burg Railway Company, upon proceedings against O, had the land for their roadbed condemned, and paid into court the damages assessed. In building the road the company made embankments along the line of the river, pulling down some of F’s buildings, throwing obstructions into the fish-berth, and materially damaging the fishery. In an action by F against the company to recover damages for the injury done to him — Held:
    1. Riparian Owners — Fisheries on the Potomac. — The legislature has frequently recognized the rights of owners in their respective fisheries on the Potomac, and liy various statutes has protected them in their rights, and the company could not in making their road injure the fishery of F without making just compensation for the- injury.
    2. Same — Rights of Lessee. — The assessment and payment of the damages into court does not preclude F from the recovery of damages for the injury he has sustained as lessee of the fishery.
    3.Excessive Damages — Conflicting Evidence — Appeal.—The court below certified the evidence in relation to the lease and what had been done by F unaer his lease, but certified that as to whether the road was built upon the strip of land condemned the evidence was conflicting, and the whole of that evidence is not given. The appellate court cannot set aside the judgment and verdict, though the court may not be entirely satisfied that the damages are not excessive.
    *This was an action of trespass on the case in the circuit court of the • city oi Alexandria, brought in September, 1871, by Jacob D. Faunce against the Alexandria and Fredericksburg Railway Company to recover damages incurred by him as lessee of land and a fishery attached, in the Potomac river, in the county of Prince William, by the erection and construction of certain embankments and obstructions, whereby the said landing was entirely destroyed for the purposes of fishing the same, by the pulling down and destruction of buildings he had erected, and placing obstructions in the berth attache.d to said fishing landing, &c.
    The defendants pleaded not guilty, and also filed a special plea that under the authority of the acts of the general assembly they proceeded regularly to have the land for the bed of their road condemned; that notice was given' to Sarah Otterback, the lessor of the plaintiff, and tenant of the freehold; that the commissioners appointed by the county court had ascertained and reported that $3,353 was a just compensation to the tenant of the freehold of the lands in the declaration mentioned for the portion of lands proposed to betaken by the defendants for their purposes and for damage to the residue of the said lands, &c.; that the defendants had paid this sum of $3,353 into the said county court, and that afterwards they proceeded to construct the embankment and did the other acts complained of, &c.
    The cause came on to be tried in November, 1873, when there was a verdict and judgment in favor of the plaintiff for $3,400; and a motion to stay judgment, on the grounds that the fishing-shore being an appurtenant to the tract of land condemned for the purposes of the road, and that money paid, no separate action could be maintained on behalf of Faunce for damages to said fishing-shore resulting from the construction *of the defendant’s railway through the land of
    Sarah Otterback. And that for any portion of the said sum of $3,353 to which Faunce may show himself entitled, his remedy, if any, is under § 16 of ch. 56 of the Code of Virginia; and the damage to the Jishing-shore, if any, having been embraced in said sum of $3,353 allowed by the commissioners and paid into court, Faunce cannot maintain a separate action for any alleged damage to the fishing-shore.
    But the court overruled the motion and ordered judgment to be entered on the verdict; and the defendants excepted.
    The defendants then moved the court to set aside the verdict on the ground that the damages were excessive; but the court overruled the motion, and they again excepted. The parol evidence is sufficiently stated by Judge Stapees in his opinion.
    It appeared that by deed dated the 25th of September, 1869, Sarah Otterback leased to the plaintiff Faunce all that fishing land called the Opossum-Nose Fishing Landing on the Virginia side of the Potomac river, in Prince William county, together with all the rights and privileges belonging to said fishing landing, from the 1st day of January, J870, for five years, at the annual rent of $500; and in lieu of the rent for the first year of said term Faunce was to clear out the fishing-berth of said landing.
    The defendants applied to this court for a writ of error and supersedeas; which was awarded.
    
      P. L. Smith, Jr., and S. P. Beach, for the appellants.
    
      Claughton and Stuart, for the appellee.
    
      
      Riparian Owners — Right to Water Frontasre. — In Groner v. Foster, 94 Va. 651, the principal case is cited to sustain the following proposition: “Every riparian owner has the right to the water frontage belonging by nature to his land. This right includes, among others, the right to the navigable part of the water course, and also the right to the soil under the water between his land and the navigable line of the water course wherein he may erect wharves, piers, or bulkheads for his own use, or the use of the public, subject to such rules and regulations as the legislature may see proper to impose for the protection of the public;” citing also Norfolk City v. Cooke, 27 Gratt. 430; Dutton v. Strong, 1 Black U. S. 23; Yates v. Milwaukee, 10 Wall. 497; Gould on Waters, sec. 149. See Gilbert v. Railroad Co., 33 Gratt. 586 and note.
      
    
   Stapees, J.,

delivered the opinion of the court.

The plaintiff in the court below was the lessee of a fishery on the Potomac river, on a point where the tide *ebbs and flows, and the stream is navigable for the largest vessels.

The value of this landing was greatly impaired by the construction of the Alexandria and Fredericksburg railroad along the line of the river, and the plaintiff brought his action to recover damages for the injury. One of the questions raised in the case is whether the owners of property on navigable waters are entitled to compensation for injuries of this character. It is insisted by defendant’s counsel that the Potomac, being a navigable river at the point in question where the tide ebbs and flows, the state owns the bed of the stream to high-water mark; and that the privilege of fishing in its waters is a mere license which may be revoked at any time; and, further, that the legislature may lawfully authorize the construction of a railroad along the water front, and the owner can claim no compensation for any injury which he may sustain; it is damnum absque injuria.

It is a sufficient answer to this view to say that the legislatuie has frequently recognized the rights of owners in their respective fisheries on the Potomac, and by various statutes has protected them in the enjoyment of these rights.

The 18th, I9th and 20th sections of chapter 100, Code of 1873, contain very explicit provisions on the subject. When, under the faith of these enactments, the owner has expended money in improving his landing and fishing beds, in erecting buildings and the necessary fixtures for carrying on his operations, he has acquired valuable rights of property which cannot be disturbed for the benefit of any corporation or private person without making just compensation. It has been held in numerous cases that the owner of land bounded on a navigable stream has certain riparian rights, whether his title extends to the middle of the stream or not. Among these are free access to the navigable part of the stream, and *the right to make a landing, wharf or pier for his own use, or for the use of the public. These rights are valuable, and are property, and can be taken for the public good only upon due compensation made. They are to be enjoyed, subject to such general rules and laws as the legislature may pass for the protection of the public right in the river as a navigable stream. This is the doctrine of the supreme court of the United States in Dutton v. Strong, 1 Black’s U. S. R. 23; Railroad Company v. Morgan, 7 Wall. U. S. R. 256, 272; Yates v. Milwaukee, 10 Wall U. S. R. 497; and by this court in Norfolk County v. Cooke, 27 Gratt. 430.

It is difficult to see why the same principle does not apply to a fishery and landing improved by the labor and money of the owner. But if it be considered that the privilege of fishing, as ever used by riparian owners in navigable waters, is a mere license which the legislature may revoke in favor of a railroad company, it is not to be supposed it would exercise this power without requiring compensation to be made for private property, taken or destroyed, or other specific injury to the owner, resulting from the appropriation. Nothing short of an express legislative declaration to that effect, or implication equally strong, should be so construed.

In the present case the act of incorporation authorizes the company, as in other cases of public improvements, to require land for the purposes of the road along its line, upon making compensation to the owner. There is nothing in the act giving this company peculiar privileges, or distinguishing it from other corporations.

Another question arising in this case is, whether the defendants have made due compensation for all damages to the land in question, and the fishery, arising from the construction of the road. The defendants claimed in the court below that commissioners appointed for the purpose had assessed the damages at $3,353, and that this *amount had been paid to the tenant of the freehold, as just compensation for the land taken, and for damages to the residue of the tract, beyond the peculiar benefits derived from the improvement.

On the other hand, the plaintiff claimed that the company did not pursue the line as shown to the commissioners, but in fact constructed the road in an entirely different line.

Now, if this allegation is true; if the company departed from the route for which the damages were assessed, it is clear that this assessment cannot preclude the plaintiff from maintaining his action for any injury he has sustained. Upon this issue the parties went before the jury. To this point their evidence was directed, and upon it a verdict was rendered for the plaintiff. The circuit judge was satisfied with the finding, and refused to disturb it. He declined to certify the evidence upon the ground that it was conflicting. This would seem to settle the question, unless we are to set aside a verdict upon mere conjecture that the jury ought to have decided otherwise.

The next question is as to the quantum of damages given by the jury. Some of the judges are inclined to think the damages excessive, and none of us are entirely satisfied with the finding. But here again a difficulty occurs in the fact there is nothing in the record which would warrant, an appellate court in disturbing the verdict. The only witness examined on this point was the plaintiff, who was confronted with the jury, and whose testimony was uncontradicted. He proved that he had leased the fishery for five years, at an annual rent of $500; that he expended seven or eight thousand dollars in putting up the necessary buildings and in cleaning out the fishing-berth and carrying on the fishery; that he had employed during the season of 1871 fifty or sixty hands,,, whose average wages were $1.35 per day; that the removal *of his capstans involved an expense of a •hundred and fifty dollars; that one of the fish buildings was removed by the defendants, •and in the work of grading the road mud and -brush were thrown into the fish-berth, damaging his seine to the extent of two or three hundred dollars, and that this occurred on several occasions. The jury and the presiding judge believed these statements. Upon what ground is this court to discredit ■them? Certainly there is nothing in the rec•ord to warrant us in so doing. Had this action been brought after the termination of the lease, ’ and it had appeared the plaintiff had lost the benefit of the -fishery entirely by reason of the construction of the road, no one would think of questioning or disturbing 'the verdict.

But the action was in fact instituted before two years of the lease had expired, and the defendant’s counsel, laying hold of a single expression used by the plaintiff in giving his testi"mony, deduces the conclusion that the damages are excessive. The plaintiff said that the general result of the interruptions by the location and construction of the road was the loss of the fishing season of 1871, and the counsel insists that this loss was greatly less than the amount of the verdict according to the plaintiff’s own showing.

The expression referred to must be taken .in connection with all that was said by the witness. The plaintiff having described to the jury the manner in which his operations were interrupted, proceeded to say that the general result of these interruptions was the loss of the fishing season. He did not mean to state that this was his entire damage. -The declaration is framed with a view to a recovery of compensation, not only for the loss of the season of 1871, but for all other injuries arising from the construction of the road, and the testimony was directed to all the grounds mentioned. The plaintiff proved -that he was liable to his lessee for the four years’ rent, amounting to two thousand dollars. He proved a fair rental of the fishery was from one thousand to fifteen hundred dollars, besides the other damages sustained, and that he had never used the fishery after the company took possession of the ground. If these statements were not true, it was easy for the defendants to show the fact; or if the fishery was not permanently injured by the location of the road, the matter was susceptible of the clearest proof, for the case was not tried till the November of 1873.

The defendants did not prove, or attempt to. prove anything relating to the damages. Either the testimony of the plaintiff was true, or the defendants were guilty of the grossest negligence in failing to meet it with' counteracting evidence. In neither aspect of the case, can this court interpose to relieve them. While the right to set aside a verdict for excessive damages is now almost universally conceded, it is a right to be cautiously exercised by the trying court. The appellate court, of course, will not do so unless it can plainly see that injustice has been done. The cases on this subject are too familiar to require citation or comment.

Upon the whole, we are of opinion there is no error in the judgment, and the same must be affirmed.

Judgment aeeirmed.  