1879. March Fred. Railway Co. This was an action of trespass on the case in the circuit court of the city of Alexandria, brought in September, 1871, by Jacob D. Faunce against the AlexanAlex. & dria 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 Faunce. 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 attached to said fishing landing &c. V. 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 be taken 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 con 1879. March Term. Fred. struction of the defendant's railway through the land But the court overruled the motion and ordered 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 Staples 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, 1870, 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 F. L. Smith, Jr., and S. F. Beach, for the appellants. STAPLES, 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 V. 1879. March Term. Fred. V. ebbs and flows, and the stream is navigable for the largest vessels. The value of this landing was greatly impaired by the Alex. & construction of the Alexandria and Fredericksburg railroad along the line of the river, and the plaintiff brought Railway Co. his action to recover damages for the injury. One of Faunce. 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 legislature 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, 19th 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 1879. March Alex. & Fred. Railway Co. V. 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 Faunce. 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 acquire 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 1879. March amount had been paid to the tenant of the freehold, as Term. just compensation for the land taken, and for damages to the residue of the tract, beyond the peculiar benefits Alex. & derived from the improvement. Fred. On the other hand, the plaintiff claimed that the com Railway Co. pany did not pursue the line as shown to the commisFaunce, sioners, but in fact constructed the road in an entirely V. 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 quintum 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 $1.25 per day; that the re |