CIRCUIT COURT OF THE UNITED STATES. Fall Circuit. RHODE ISLAND, november TERM, 1828, at providence. BEFORE Hon. JOSEPH STORY, Associate Judge of the Supreme Court. STEPHEN H. SMITH US. WILLIAM MILLER. A lease for 500 years of certain land covered with a pond of water conveys, as incident, the water and the fish therein. TRESPASS for entering the plaintiff's close, partly covered with water, and taking fish from his pond. At the trial, the principal question had any property in the fish. a lease for 500 years of a certain factory lot, and dam lot, in &c., "together with all the land, which may be flowed by raising said dam seven feet high from the bed or bottom of the river." Plea, the general issue. was, whether the plaintiff The title of the plaintiff was under The cause was shortly argued by Searle for the plaintiff, and by Bridgham for the defendant. THE COURT said :-The lease having conveyed all the land under the pond, it passed the pond of water and the fish therein to the plaintiff, as incidents to the principal grant. Verdict for the plaintiff. United States vs. Ruggles. UNITED STATES vs. SPENCER RUGGLES. Under the 10th section of the act of 1825, ch. 67, [276] the forcing a mariner on shore must be done, not only without justifiable cause, but also maliciously, to justify a conviction. If done under a mistaken sense of duty, it is not a case for conviction. "Maliciously" in the statute means, with a wilful disregard of right and duty, or doing the act against a man's own conviction of duty. A master of a ship has authority to confine his seamen in a conımon gaol, in a foreign port, for offences and misconduct, in extreme cases, and where the proper correction or punishment cannot be effectual on shipboard. INDICTMENT for maliciously forcing a mariner on shore in a foreign port, contrary to the tenth section of the act of 1825, ch. 67, [276]. Plea, not guilty. The cause turned principally on matters of fact at the trial; and it was argued by Pratt and Searle for the defendant, and by Greene (District Attorney) for the United States. Upon the summing up to the jury, the following opinion was delivered, as to the construction of the statute. STORY J. The words of the act of Congress are, that "if any master, &c. shall, during his being abroad, maliciously and without any justifiable cause, force any officer or mariner of such ship, &c. on shore, &c. he shall, on conviction thereof, be punished by fine, &c." To constitute the offence, both facts must concur. It is not sufficient, that there is no justifiable cause for the act; it must also be maliciously done. If therefore the jury should come to the conclusion, that there has been no justifiable cause, still they must be satisfied further, that the act has been maliciously done by the defendant. By "maliciously," in the intendment of the statute, is not merely meant a wicked, malignant, and revengeful act, such as in cases of murder constitutes malice, and which flows from a heart regardless of social duty, and fatally bent on mischief. But if the act be wantonly done, that is, with a wilful disregard of right or duty, it is, in the sense United States vs. Ruggles. of the statute, malicious. It must be a wilful act, done contrary to a man's own convictions of duty. If, therefore, the defendant did the act from good motives, and under a mistaken sense of duty, and not from a spirit of hatred, or with an intention to oppress, then he ought to be acquitted, notwithstanding the want of justifiable cause. But if he did the act contrary to his own sense of duty, as a mere exercise of power, without any sense of its being right, then it was "maliciously" done in the sense of the statute.1 There is another point, on which the Court is called to express an opinion. In the present case, the master not only forced the seamen on shore, but he caused them to be confined and imprisoned in the common gaol at St. Pierre's, under circumstances of such great exposure and severity, as cannot be justified. It is said, that the law does not clothe the master with any authority to imprison the seamen for disobedience or misconduct in a common gaol in a foreign port; and that the imprisonment, if necessary or proper, must be on board of the ship. I am aware, that it has been doubted by very able judges, whether the law does authorize such an imprisonment on shore in a foreign port. My opinion, however, upon the most mature deliberation, is, that it does authorize it; but I am also of opinion, that the authority arises, and can be exercised only in cases of flagrant offences, where there is a positive necessity of removal of the party offending from the ship to some place of safety on shore. The authority is of a very delicate and summary nature, and is justified only by the same necessities, which clothe private persons in other cases with extraordinary powers. Cases may easily be conceived, where the authority may be indispensable for the safe 1 See Harman vs. Tappenden, 1 East's Reports, 554, 563, and note, ibid. and 564, 565, as to the meaning of "maliciously."-See also 2 Starkie on Evid. Tilles, Libel and Malice, p. 862, p. 891, &c.-Robertson vs. Mc Dougall, 4 Bing. R 670, 680-Looker vs. Halcomb, 4 Bing. R. 183, 190, as to the meaning of "wilfully and maliciously" in Stat. I Geo. 4, ch. 56. United States vs. Ruggles. ty of the ship, cargo, and crew. Suppose a mutiny in port, with an intent to murder the officers, or to embezzle the cargo ; and the conspiracy be so extensive, that the mutineers cannot be suffered to remain on board, but at the imminent hazard of the lives of the officers, and the property on board. The master must have (as I think) a right, under such circumstances, to remove them from the ship; and to imprison them, as well for punishment as safety, if he does not choose (as he may) to dismiss them altogether from the employment. But in such a case, the imprisonment must be with the intent to take them again on board the ship for the voyage, or to bring them home; and not with the intent merely to punish them, and at the same time to dissolve their connexion with the ship. The master can punish only to promote good discipline, and compel obedience to lawful orders on board of the ship. He is not clothed with judicial authority to sentence seamen to punishment for their offences. The law has conceded that authority to the regular tribunals of the country, acting in the common forms of justice, and upon a trial of the facts by a jury. While, therefore, I admit, that a master may, in extreme cases, imprison a seaman in a common gaol in a foreign port, (for no such authority is pretended to exist in a domestic port,) I think the authority is confined to extreme cases; and cannot be justified, when a more moderate punishment on ship-board would be effectual and safe. The notion, so commonly entertained, that a master may, at his pleasure, for slight offences imprison his seamen in a foreign gaol, is utterly unfounded in law. It is well known, that there is in warm climates great danger to the healths and lives of seamen in these miserable and loathsome places; and a power to impristhem there is often a power of life or death. It is high time, that masters should understand, that they are criminally liable for such wanton abuses of authority. And if a seamen should lose his life by confinement and exposure in such a gaol through the instrumentality of the master, without justifiable cause, the United States vs. Ruggles. master is responsible, as in other cases of homicide. One of the strongest reasons against the exercise of the authority is, that the seamen are thus put utterly out of the control and supervision of the master. It is his duty to watch over them with parental attention, as long as they belong to the ship; and he has no right to delegate his authority or custody to gaolers and turnkeys in a foreign country. Verdict, guilty. THOMAS LYMAN US. JAMES ARNOLD AND OTHERS. A liberty granted in a deed “to dig a canal through the grantor's land," does not in. clude, as an incident, the proprietary interest in the soil, when dug up and removed. BILL in equity, for an injunction to prevent a removal and sale of certain stones dug out of a canal, and also for relief. The cause came on to be heard upon the bill answers and depositions, and was argued by J. L. Tillinghast for the plaintiff, and by Whipple and Searle for the defendants. STORY J. The present suit is a bill in equity brought for an injunction and relief, on account of an asserted claim by the defendants of a right to take, remove, and sell, certain stones and other materials dug out of a canal, which the plaintiff has constructed through the land of the defendants, under an agreement for that purpose. The plaintiff alleges, that these stones and materials are his own property, and that a sale has been made of a part of them by the defendants; and as to the residue, which are still on the land of the defendants, and on which they were rightfully placed, they have obstructed the plaintiff in the removal and use of them, &c. The title of the plaintiff is set forth in various |