The lessors of the plaintiff, to show title to the premises described in the declaration, gave in evidence an act passed in 1729, entitled "An act to confirm Bath town common," contained in Martin's collection of the Private Laws, p. 5; and another act in the same collection, p. 9, passed in 1745, ch. 11, entitled "An act for fencing the town of Bath, (195) and resurveying the common belonging to the said town," etc.; and also an act passed in 1834, Pamphlet act, p. 80, entitled "An act for the better regulation of the town of Bath, in Beaufort County." The lessors of the plaintiff contended that the act of 1729 created a body corporate, and granted to that body the land described in the declaration; and that the rights of that body had been transmitted to them, the lessors of the plaintiff, by the aforesaid acts of 1745 and 1834, or by operation of law. The defendant insisted that no body corporate was created by the act of 1729; that the said act granted no land; that if anything was granted, it was a mere right of common, an incorporeal hereditament, for the disturbance of which this action could not be maintained; and that the lessors of the plaintiff had no right or title to the premises described in the declaration, and if they had any right, it would not support this action.
The jury returned a verdict for the plaintiff, subject to the opinion of the court as to whether the lessors of the plaintiff had shown any title, or could maintain this action; and his Honor being of opinion against the plaintiff, set aside the verdict, and gave a judgment of nonsuit, from which the lessors of the plaintiff appealed. By the act of 1729, entitled "An act to confirm Bath town common," it is recited "that a tract of land, the boundaries of which are particularly described `adjacent to Bath town,' was granted and surveyed for a common for the use of the said town, but the title thereof hath never been fully confirmed," and it is thereby enacted "that the said land shall be and hereby is appointed a common, to lie perpetually for the use and benefit of the inhabitants of Bath town, under such restrictions and regulations as are or shall be appointed for town commons; *Page 153 and that the inspection and immediate care of looking after the said common be in the commissioners of the said town for the time being." Upon this act an inquiry arises, Is a grant thereby made to the inhabitants of Bath town of the tract of land itself to be held for a town common, or only of a right of common in the tract — that is to say, a right to feed their beasts or cut their wood thereon, or to have some other like profit therefrom? We adopt the first construction as most consonant with the words of the act, and best fitted to effect the object of the lawmakers.
The recital is, that the tract of land had been granted and surveyed for a common for the use of the town of Bath, but that the title thereof hath not been fully confirmed. The subject-matter of legislation is, then, this tract of land so previously granted and surveyed. This mischief requiring legislative interference is, that notwithstanding these acts, the title, for what reason we know not, needs confirmation. The obvious remedy would be to confirm the title by giving to it all the efficacy of a legislative grant; and such accordingly seems to be the enactment, "that the said land shall be and hereby is appointed a common, to lie perpetually for the use and benefit of the inhabitants of Bath town, etc." There is not an expression in the act from which it can be fairly inferred that the Legislature had in view that incorporeal right existing in idea and abstracted contemplation, which is called "the right of (197) common," by virtue whereof one man or set of men is entitled to have a profit in the land of another. The term "a common," which is used in the act, is not appropriate to the expression of this incorporeal right, but is descriptive of the land itself, as devoted to public, instead of being appropriated to private, uses. By a town common, in common parlance, is understood an inclosed or uninclosed place belonging to the town, and in which no individual has a private property. If the purpose of the act had been to confer on the inhabitants of Bath this supposed incorporeal right, the nature and extent of the right would have been declared. Rights of common are of various sorts, as the right of feeding one's beasts on another's lands, of fishing in another man's water, of cutting necessary wood from off another's estate, or digging turf upon another's ground. Which of these is the right of common by this act intended to be fully confirmed? It would have been natural, too, had such been the purpose of the act, to let it be known whose was the land that was to be subjected to these servitudes — who had accepted the grant made for these uses. Yet is the act entirely silent in this respect; and if this be its construction, we shall be obliged to hold that the Lords Proprietors retained the dominion to themselves, subject to the exercise of this undefined right in the inhabitants of Bath. Now, if this be so, what *Page 154 is the meaning of that part of the act which makes it the duty of the commissioners of the town of Bath to take care of this common? The property of it is in the Lords Proprietors — and the sole interest therein of those whom they represent is one "existing in idea and abstracted contemplation." But if we follow the natural and obvious interpretation of the act, and hold it to be a legislative grant of the land itself to the inhabitants of Bath as a town common, there is a manifest congruity in commending the immediate care of this property to the commissioners of the said town. The case does not set forth any legislative act or charter previous to the act of 1729, by which the inhabitants of Bath town had been erected into a corporation, and made capable of receiving a conveyance of lands; therefore whatever personal information we (198) have on the subject, we cannot judicially know that such was the fact. But this is immaterial; for certainly, if the statute of 1729 contains a legislative grant to the inhabitants of Bath, it ipso facto creates them a body politic for the purposes of that grant. The statute confers a capacity to take (if it did not exist before) whatever it declares to be the will of the Legislature to confer.
We think that the conclusion to which we are brought by an examination of the language and of the object of the act of 1729 is corroborated by the legislative exposition of the act, in the subsequent statute of 1745. This is entitled "An act for fencing the town of Bath, and resurveying the common belonging to the said town, etc.; etc."; and, among other things, it enacts "that the common belonging to the said town shall be surveyed at the expense of the inhabitants of said town, and that proper landmarks shall be set on the bounds of the same, so that persons may know where the same are, and not commit trespass on the lands adjoining." Here is an explicit recognition by the Legislature — a recognition approaching, too, quite near in point of time to the legislative grant — that the tract of land called Bath Common was the property of the inhabitants of Bath town.
The act of 1834, "for the better regulation of the town of Bath, in Beaufort County," is an amended legislative charter, whereby the corporation of the inhabitants of Bath town has its corporate existence continued with sundry modifications, under the corporate name of "the Commissioners of the Town of Bath," by which name it was thereafter to sue and be sued and to have perpetual succession. We are led to this interpretation of the act, not so much by any specific enactment as by an examination of the whole of its numerous and detailed provisions, showing that these were intended as a complete substitute for the few and imperfect provisions of former acts — and we are confirmed in the conviction of its correctness by the absurdities which would result from *Page 155 intending two corporate bodies in relation to the same subject-matter, the town of Bath — one, "the inhabitants of Bath town"; the other, "the Commissioners of the Town of Bath."
The case does not state affirmatively that the amended charter (199) has been accepted or acted upon by the inhabitants of Bath. But in setting forth the objections made to the recovery of the plaintiff, it raises no question in relation to this fact. We must intend, therefore, that it was not disputed at the trial.
It is, therefore, the opinion of this Court that the tract of land in question was granted to the inhabitants of Bath town by the legislative authority of North Carolina, and by virtue of that grant became the property of the said inhabitants; and that the same is still the property of the said inhabitants, under their corporate name of the Commissioners of the Town of Bath.
The nonsuit must be set aside and a judgment rendered for the plaintiff pursuant to the verdict of the jury.
PER CURIAM. Reversed.
Cited: Commissioners v. Winslow, 71 N.C. 153.