John Y. Day and Thos. Gorsuch, vs. William Y. Day, 4 Md. 262

Le Grand, C. J., delivered the opinion of this court. This action was instituted by the appellee, to recover damages for an assault and for false imprisonment.

From the evidence it appeared, that William and John Day were the owners of adjoining fishing shores on the Gunpowder river, near its confluence with Bird river, and that the shore of William “had been immemorially used as a fishery,” and that although John, “at one period,” was in the habit of fishing higher up the stream, and in front of his own shore, the latter fishery ceasing to be advantageous, he shifted the range of his seine within the last three years preceding the institution of this suit, so as to carry it out in front of the shore of William; but, notwithstanding this common range for their seines, both fisheries could be conveniently carried on, it being easy to carry out the seine from one shore while that laid out from the other was drawing in; and that, so, this alternate use of the best fishing waters could be had by each party without interruption or delay.

It also appeared, that while the seine of John was being laid out, William was anchored in his boat in the line which the seine of John would take, thus compelling an alteration of its intended direction. Evidence was also given that while the boat of William was so anchored, John, Gorsuch and others, in another boat, pushed out to him, when a scuffle ensued, resulting in the capture of William and the bringing of him ashore. There was testimony to show that William commenced the struggle, and also that violence was first used by John.

When William reached the shore he was committed by the defendant, Gorsuch, who had been present during the difficulty between William and John Day. That commitment was in these words: “State of Maryland and Baltimore county. To William K. Swain, constable: Take into your custody the body of William Y. Day, and him safely keep, to answer a charge of obstructing the navigation of the waters of Gunpowder river, until he shall be discharged by law. Witness my hand and seal this 19th day of May 1847.

Thomas Gorsuch, (Seal.)” Two hours elapsed from the time of the capture of William Day until the delivery of this commitment to the constable. There is evidence in the record to show that Gorsuch urged him to give bail, offering to become it himself, and that the latter refused, as he did also a similar offer made by a friend in Baltimore city, preferring to go to jail, saying that the damages would be increased thereby. He remained in jail six hours, when he was discharged on his entering into a recognizance to answer at court.

There was a great deal of other testimony given, both by the appellants and the appellee; but the above statement is sufficiently full to present the questions which we are called upon to determine. On behalf of the plaintiff, at the trial below, two instructions were asked of the court, which were given; and on behalf of the defendants thirteen, all of which were refused. The ninth prayer of the defendant has been abandoned.

Without recurring to the precise verbal structure of the prayers on behalf of the defendants, it may be said, that they are in direct conflict with the legal propositions contained in those submitted on the part of the plaintiff, and, as a consequence, if the latter were properly granted the others were rightfully refused. The first prayer of the plaintiff merely asks the court to •instruct the jury, that the commitment given in evidence authorised the commitment of William Day for no other offence than the obstruction of the navigation of the Gunpowder river.

This is clearly the meaning of the mittimus, the charge being specifically set out in it, and the Court of Appeals, in the case of Whiteford vs. Burckmyer and Adams. 1 Gill, 143, have recognized the right of a party to segregate any portion of the facts of a case from the whole body and ask the instruction of the court on them. It is for the other party, if he desires it, to ask the opinion of the court on the whole testimony. We do not see how any other construction could have been given to the commitment, and therefore discover no error in this particular.

The second prayer of the plaintiff asserts the broad proposition, that there was no evidence of a legal authority to arrest him. This prayer covers the whole case, and is in direct opposition to each and every of the prayers asked on behalf of the defendants. It is clear from all the testimony, that the plaintiff was arrested without warrant. The undisputed evidence is, that the plaintiff had anchored his boat in the stream, and that the defendants went out to the place and there, after a scuffle, arrested and brought him to the shore.

There is none whatever that he was, at the time of the arrest, notified Gorsuch was acting in the capacity of a justice of the peace; but even were it conceded a justice of the peace may himself make an arrest for a misdemeanor committed super visum, yet it ought to appear, for the future protection of the party arrested, that at the time of the arrest he acted, and professed to act, in his official capacity.

Any other rule might enable a person in the commission to excuse his tortious acts under the plea of a mistake of judgment in the discharge of the judicial duties of his office, in the case now under consideration there is not the slightest, evidence Gorsuch, at the time of the arrest, professed to act as a justice of the peace, nor is there any that he did so, nor that the plaintiff had any knowledge of his being a justice, until the arrival of the constable, which did not happen until two hours after the arrest had taken place.

It is unquestionable, that if the act of the plaintiff in anchoring his boat in the stream was illegal, it was so simply because it was an interruption to the public right of navigation or of fishery, and, as such, punishable by indictment. The right to abate a public nuisance belongs to every citizen, yet it cannot be lawfully exerted if its exercise involve a breach of the peace. When such is the case, the party erecting the nuisance must be proceeded against legally; that is, a charge must be made on oath and a warrant regularly issued.

In the case before us the attempt to remove the boat did, in fact, involve a breach of the peace. It brought about a scuffle in which violence was used on both sides.

When such a state of things appeared to be the inevitable result of the attempt to remove the boat of the plaintiff, the defendants ought to have desisted and to have made complaint before the proper authority; or, if it were conceded, as we have before remarked, that a justice of the peace has the right on view to order an arrest by parol, and if Goisuch assumed on this occasion to have'acted in his official capacity, he should have notified the plaintiff of such fact.

We regard the capture of the plaintiff and his boat as but the act of parties assuming to abate what they considered a public nuisance, which they were not authorised to do if it could not be effected without a violation of the peace. There is no evidence in the record as to the several right of fishery on the part of the plaintiff; and although it was discussed at the bar, we do not feel called upon to decide whether — in the absence of legislation to that effect — it is competent to a person by prescription to acquire a several right of piscary in any of the navigable waters of this State.

There is nothing in the proof from which it could be properly inferred that the plaintiff, or those under whom he claimed, had exercised an exclusive right of fishery for a time sufficiently long to justify the presumption. The evidence only goes to the extent of showing the right had been exercised immemorially, but not that it was adversary and exclusive, and, in any event, such adversary and exclusive use would be indispensable to a several right of fishery in a navigable water of this State. Delaware and Maryland R. R. Co., vs. Slump, 8 G. & J., 479.

The defence set up for the defendant, Gorsuch, under the first

section of the act of Parliament of 24 George 2, ch. 44, cannot avail him, it not being in force in this State. Chancellor Kelty, in his report of British statutes, applicable to our condition, states the first

section of this act not to be in force in this State; and this court, in the case of Dashiell, et al., vs. Attorney General, 5 H. & J., 403, have said that the report “was compiled, printed and distributed under the sanction of the State for the use of its officers, and is a safe guide in exploring an otherwise dubious path.” For these reasons we affirm the judgment of the county court. Judgment affirmed.