Page images


Square 83 covers the deepest part of that part of Bogue Sound, and that part is connected with the balance of the sound by navigable waters for small vessels, both to the eastward and to the westward. The Shepard's Point Land Company and Morehead never did build any wharves or piers on Square 83."

His Honor submitted to the jury the following issues:

1. Is the plaintiff the owner and entitled to the possession of the land described in the complaint as Square 83?

2. Is the defendant in possession of any part thereof?

The court instructed the jury that if they believed the evidence they should answer the first issue "Yes" and the second issue "Yes," and the defendant excepted. It is agreed that the court answer the issues accordingly. Judgment was rendered thereupon and the defendant appealed.

The plaintiff's title and right to recover are dependent upon the construction of Section 2751 of The Code, being Chapter 21, Acts 1854-'55, in the following language: "All vacant and unappropriated land belonging to the State shall be subject to entry except lands covered by navigable streams, provided that persons owning lands on any navigable sound, river, creek or arm of the sea, for the purpose of erecting wharves on the side of the deep waters thereof next to their lands, may make entries of the lands covered by water adjacent to their own as far as deep water of such sound, river, creek or arm of the sea, and obtain title as in other cases. But persons making such entries shall be confined to straight lines, including only the fronts of their own tracts, and shall in no respect obstruct or impair navigation. And when any such entry shall be made in front of the lands of any incorporated town, the town corporation shall regulate the line of deep water to which entry shall be made."

The question presented for decision is of great importance and by no means free from difficulty. It will be well, before



entering into an examination of the principles and authorities by which we shall be guided in reaching a conclusion, to note the history of the legislation in North Carolina in regard to the control and disposition of our navigable waters. It was held in Tatum v. Sawyer, 9 N. C., 226, that lands covered by navigable waters were not subject to entry under the entry law of 1777, "not by any express prohibition in that Act, but being necessary for public purposes as common highways for the convenience of all, they are fairly presumed not to have been within the intention of the Legislature."

Ruffin, J., in Ward v. Willis, 51 N. C., 183; 72 Am. Dec., 570, said: "It happened, however, that in the revisal of 1836 those parts of the previous Act were omitted, and therefore the court felt bound to hold in Hatfield v. Grimstead, 29 N. C., 139, that entries of land in Currituck Sound were good after it ceased to have a tide or be navigable by reason of the closing of the inlet, or rather of such parts of the sound as frequently were not covered by water. When the omissions of the revisal were discovered in 1846, the Legislature by an Act of that year, Chapter 36, revived the provision omitted by enacting that entries of land lying on any navigable water should be surveyed in such manner that the water should form one side of the survey and the land laid off back from the water, and proceeded further to enact that it should not be lawful to enter land covered by any navigable sound, river or creek." The court in that case held "that land lying between the high and low water lines of the tide of the ocean or a navigable stream is not subject to private appropriation under the Acts authorizing the entry and grant of lands by the State."

This continued to be the law until 1854, when the Act, Section 2751 of The Code, was enacted. In 1889, Chapter 555, this Act was amended by adding after the word "navigation" the following: "Provided further that no land cov


ered by water shall be subject to entry within thirty feet of any wharf, pier or stand used as a wharf already in existence, or which may hereafter be erected by any person on his own land or land under his control or on an extended line thereof; but land covered by water as aforesaid for the space of thirty feet from the landing place or line of any wharf, pier or stand used as a wharf as aforesaid, shall remain open for the free ingress and egress of said owner and other persons to and from said wharf, pier or stand." By the laws of 1891, Chapter 532, the section is so amended as to read: "Lands covered by navigable waters, provided that persons owning lands on any navigable water for the purpose of erecting wharves or fish houses or for fishing in said waters in front of their lands, may make entries of the land covered by said water and obtain title as in other cases, but persons making such entries shall be confined to straight lines, including only the fronts of their own lands, and shall in no case extend a greater distance from the shore than one-fifth of the width of the stream, and shall in no respect obstruct or impair navigation provided nothing in this Act shall apply to Currituck County."

By the Act of 1893, Chapter 17, Section 2751, of The Code, is amended by striking out the words "to which entries may be made," and inserting instead thereof the words. "to which wharves may be built.”

It is noted in the plaintiff's brief, and known in connection with the history of the State, that at or about the time that the Act of 1854 was passed, the Atlantic & North Carolina Railroad, having its terminus at what was to be Morehead City, although projected, had not been completed to that point.

The plaintiff's title is dependent upon maintaining three propositions: 1. That the title to navigable waters, sounds, arms of the sea, etc., is vested in the State and may be granted



by the State to private individuals. 2. That by the grant issued to Morehead and Arendell, pursuant to the Act of 1854, they became the absolute owners of the soil covered by the navigable waters of Bogue Sound, Newport River and Calico Creek, described in the said grant and containing 502 acres; and (3) That such title as they acquired passed to and vested in the plaintiff corporation separate and distinct from its ownership of the soil theretofore granted by the State, upon which is located the town of Morehead City, including the defendant's lot No. 1, upon which is built the Atlantic Hotel and that its ownership is in no respect dependent upon the use to which the land in controversy is to be put, or its riparian ownership of the shore.

It is abundantly settled by the courts of this State and the United States that after the Revolutionary War the States became the owners of and retained the title to the lands covered by navigable waters, and that they have the power to grant those lands to private individuals. This has been the well settled doctrine in this country since the case of Martin v. Waddell, 41 U. S., 367. "The principle has long been settled in this court that each State owns the beds of all tide waters within its jurisdiction unless they have been granted away. In like manner, the States own the tide waters themselves and the fish in them so far as they are capable of ownership while running." McCready v. Virginia, 94 U. S., 391.

Ruffin, J., in Ward v. Willis, 51 N. C., 183, says: "It seems thus to be clear that whatever soil is at any time covered by any navigable water in its natural state is deemed to be in the same State as if it were in the bed of the water; in other words, that it is all one, whether it be under the channel or the margin between the high and low water lines. The same public purposes require that here, as in England, the State should reserve lands in that situation from private appro


priation, and although it may please the Legislature to dispose of that by special grant for the promotion of trade and the growth of a commercial town accessible to vessels, it rationally accounts for the restriction upon the common mode of granting other public lands, and enables us to discover the extent of the restriction imposed, and understand the terms in which it is imposed."

Mr. Justice Field, in Illinois Central Railroad v. Illinois, 146 U. S., 387, thus defines the status of lands covered by tide waters: "It is a settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several States, belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof when that could be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the States. This doctrine has been often announced by this court, and is not questioned by counsel of any of the parties"-citing Pollard's Lessee v. Hagan, 3 How., 212; Weber v. Harbor Commrs., 18 Wall., 57.

For the purpose of this discussion, we treat the first proposition as settled. There has been, however, some discussion and conflict of opinion in respect to the extent of the right of the State to grant the soil under its navigable waters, held in trust for the use of all of the citizens, to private persons.

Mr. Justice Field in a very able opinion in the Illinois Central Railroad case, supra, in discussing the character of the title which the State holds in her navigable waters, uses the following language: "The question, therefore, to be considered is whether the Legislature was competent to thus

« PreviousContinue »