#### James Boatwright v. Jacob Bookman, Daniel Bookman, Thomas Ashford, Thomas Watt and George Turnipseep.

The plaintiff had constructed a fishery consisting of several fish traps, on a line between the adjacent islands in the *Congaree*river, at a distance of eighty or ninety yards with the customary dam; having obtained the permission of the proprietor to use the shores of the islands for that purpose. The defendants, professing to be performing their duty as commissioners of fish sluices on Broad River, cut away and destroyed one of the traps and thereby opened a sluice which rendered the taps of no value. Held, that an action of trespass vi et armis, would'lie for the injury — and plaintiff having obtáined a verdict, a new trial was refused.

The right of fishery in the public *navigable*rivers of this State, considered at length and recognised.

*448*Before EARLE,*/., *at Richland, Spring Term,*1839.

The following is the report of his honor, the presiding judge:

“ The p'laintiffhad constructed a fishery consisting of seven traps, on a line between the adjacent islands in the Congaree, a distance of eighty or ninety yards, with the customary dam; having obtained the permission of Mr. Guignard, the proprietor, to use the shores of the islands for that purpose. The traps were put up in the autumn of 1837. In March, 1838, the defendants with their servants and others, cut away and destroyed one of the traps, and thereby opened a sluice which rendered the other traps of no value. The defendants professed to be performing their duty as commissioners of fish sluices on Broad River, and to be acting under a resolution of the legislature appointing them, passed December, 1837. It appeared on examination, that two Boards were appointed at that session, consisting of six commissioners each; one for Broad River, beginning at Granby, and the other for Broad River in Fair-field district. Two of the defendants were members of'both Boards, and two others were also members of the latter board. — • Previous to the time of the alleged trespass, it was proved that no boat sluice had ever been opened,'and no fish sluice had ever been designated or opened, between the two islands where the plaintiff’s traps were; and three witnesses for the plaintiff proved, that in their opinion, the place was unfit either for a boat sluice or a fish sluice. Yet the true commissioners 'on that part of the river after-wards designated a fish sluice there. .

The actual cost of building each trap was ten dollars. Fourteen laborers, two of them white men, were employed six days in making the dam and placing the traps in the river; from which it would seem that the actual cost of the whole fishery was one hundred and sixty or seventy dollars, and of each trap, about twenty-three dollars.

On a motion for nonsuit, the court held that the Congaree there, is a public navigable river — that the whole stream, however, was not to be considered a highway for the purposes of navigation; *449and that an individual might acquire a right of private property in a fish trap, erected by himself in'a part of the river not used for navigation, if the place were not designated and reserved by public authority as a sluice for the passage of fish. It was considered that the defendants, although a majority of the board of commissioners of fish sluices on Broad River in Fairfield, yet had no authority below on the Congaree, where the plaintiff’s traps were, and that they were guilty of a trespass on the plaintiff’s property.

The amount of damages was submitted fairly to the discretion of the jury, with the single remark, that they ought, by their verdict, to compensate the plaintiff for his actual injury. The jury found for the plaintiff seventy-five dollars.”

The defendants now renewed the motion for a nonsuit, in the Court of Appeals, upon the grounds taken on the eircuit.

1. That the Congaree is a public navigable river.

2. That the dam and fish traps erected by the plaintiff, and obstructing the navigation of the river, as well as the passage of fish, for the space of ninety yards, from one island to another, is a nuisance.

3. That an action, and especially trespass vi et armis, will not lie for opening a passage through this obstruction, by removing one of the traps, and so forth.

In the event that the nonsuit should not be granted, the defendants moved the Court of Appeals for a new trial, upon the grounds:

1. That the fish traps were proved to be worth only ten dollars.

2. That the plaintiff sustained no other loss by the removal thereof; and,

3. That all the circumstances attending the transaction were clearly in extenuation of the conduct of the defendants, whilst there was not a single aggravating circumstance, and therefore, the verdict of the jury was against the evidence in this particular.

*450Curia, per Earle, J.

The question raised in argument, whether the plaintiff’s trap was a fixture or not, does not seem to be material to the case. If he had a right to put it in the river, in the exercise of his privilege of taking fish, which he enjoyed in common with the rest of the community, it was his property, and he had a right to remove it. — Cro. Car. 228. In that case, the public acquired no right to it; and if not a public nuisance, or other public injury, to be redressed by law, or abated by public force, the public could no more claim it or destroy it than an individual. Still it was not in legal parlance, the close of the plaintiff

Several other questions have been made in argument, on which the court does not conceive it necessary to express an opinion.— We need not decide whether the rule of the English law prevails here or not, nor whether there be, in effect, any difference between the rule there and in Pennsylvania. We need not decide whether the Congaree was originally navigable, or made so; nor whether, in one case, or in the other, the owners of the soil, on either side, would possess any exclusive right of fishery, and to what extent. The court is satisfied that the Congaree is now to be deemed and taken as a navigable stream. Whether the public is the actual owner of the soil, covered by water, in rivers of this description, or has merely a servitude for the public interest, as a highway by water, may deserve consideration; and would depend perhaps, on the grants, which we have not before us, or on the acts regulating the issuing of grants for lands, which have not been brought to our view.

Whether the land covered with water belongs to the owners of the adjoining lands, or to the public,it is a public river, *{juris publici)*and nuisances and impediments *therein are*liable to be punished by indictment. We have no doubt that the right of taking fish there, was common in equal degree to the whole community.— Whether an exclusive right could be prescribed for, is not necessary to be considered. The river being a public highway, *all*obstructions and impediments to the free passage and navigation thereof, would be public nuisances, and punishable by indictment, or liable to be abated.

*451The question then is, was the trap, or line of traps, claimed by the plaintiff, such an obstruction and impediment, as to come within the description and meaning of a public nuisance. An obstruction to the passage of fish, may be a private nuisance where it affects a private right. An obstruction to the navigation would certainly be a public nuisance; and I incline to think, contrary to my first impression, that an obstruction to the free passage of fish in a public navigable river, is also a public nuisance, The question in this case, then, depends on this, could the plaintiff have been indicted for a public nuisance *1*And this depends more, perhaps, • on the provisions of the different acts of the legislature, than on other proof. The privilege of taking fish in our public rivers, by means of traps, has been immemorially exercised. I think it is now too late to hold, that a fish trap of itself is an obstruction and nuisance. This right is ¿recognized by very many acts of the legislature, beginning at an early period. On this river and some others, the legislature has adopted regulations concerning both navigation and the passage of fish. The act of 1827 is passed expressly to prevent obstructions to the passage of fish up several rivers, including the Congaree; appointing boards of commissioners of fish sluices, to have regular succession, every three years, to open and keep open sufficient sluices, for the free passage of fish.- This act recognizes and regulates the exercise of the right to erect traps, by making it a public nuisance to erect them within eighty yards of any dam, built by order of the State, to aid navigation. If indictable as a nuisance and punishable by a fine of twelve dollars, to put a trap within eighty yards of such dam, it would seem to follow that it is not of itself a nuisance, to put a trap more than eighty yards. And if a fish sluice be designated and opened, to obstruct which is indictable as a nuisance, it would seem to follow as an unavoidable conclusion, that the legislature did not consider a trap elsewhere as a nuisance.

The act of 1828, after fish sluices had been designated and opened In this part of the river, again recognized the. right to put traps, except within certain boundaries prescribed, near the dams at the head of the canal. But the act of 1829, making it indictable as a *452larceny to steal fish out of a trap, with intent to defraud the owner thereof, more explicitly recognizes the right to put traps in the river, and regards both them and the fish taken in them, as private property. By the same act it is made a misdemeanor to put a trap in or near a boat sluice, so as to obstruct or injure the navigation. The plaintiff’s traps were not in or near any boat sluice ; nor were they an obstruction of any fish sluice. They therefore could *not*constitute a public nuisance, so as to be indictable; or liable to be abated by private force. The institution of boards of fish sluices on all the principal streams, every three years, who are required to designate periodically, and to open adequate sluices for the passage of fish, which are protected from all obstructions by indictment, with adequate penalty, supersedes any other proceeding, by the public, on account of impediments, by traps, to the free passage of fish.

*Gregg*& *Black,*for the motion.

*Tradewell*& *Desaussure,*contra.

The defendants were guilty of a trespass by destroying the plaintiff’s traps, and the verdict must stand. Their motion is refused.

O’Neam,, Richakeson, Butler and Evans, Justices, concurred.