CHAPTER 37.

GRANTS.

I. TO WHOM ISSUED.

1692. Citizens and bona fide residents. Any citizen of this state, and all persons who have or shall come into the state with the bona fide intent of becoming residents and citizens thereof, shall have the right and privilege of making entries of, and obtaining grants for, vacant and unappropriated lands.

Code, s. 2754; 1869-70, c. 19, s. 1. As to entry by a resident Cherokee Indian, see Colvord v. Monroe, 63-288-by nonresident who has not expressed intention of becoming resident, Wilson v. Land Co., 77-445-by nonresident, grant being issued to a person qualified to hold lands, Ibidby nonresident coming into state with intention of becoming citizen, Mackridge v. Howerton, 72-221-by two persons, one of whom is nonresident, Weaver v. Love, 146-.

Even if an alien is prohibited from entering lands, he can nevertheless hold as against all others except the state: Johnston v. Lumber Co., 144720, and cases cited.

Land subject to entry, and grant issued therefor, such grant can not be collaterally attacked for fraud, irregularity or other cause: Janney v. Blackwell, 138-437; Dosh v. Lumber Co., 128-84; Wyman v. Taylor, 124431; Gilchrist v. Middleton, 107-663; 108-705; Brown v. Brown, 103-213; Dugger v. McKesson, 100-1; Harshaw v. Taylor, 48-513; Barwick v. Wood, 48-312; Stammire v. Welch, 48-214; Stammire v. Taylor, 48-210; McCormick v. Monroe, 46-14; Munroe v. McCormick, 41-85; Lovinggood v. Burgess, 44-408; Stammire v. Powell, 35-312; Tate v. Greenlee, 9-231; Storther v. Cathey, 5-162; Reynolds v. Flinn, 2-106.

Land not subject to entry, grant void, and may be attacked collaterally: Janney v. Blackwell, 138-437; Holley v. Smith, 130-85; Dew v. Pyke, 145300; Dosh v. Lumber Co., 128-84; Gilchrist v. Middleton, 107-663: 108-705; Brown v. Brown, 103-213; Dugger v. McKesson. 100-1; Barnett v. Wood, 58-433; Harshaw v. Taylor, 48-513; Barwick v. Wood, 48-312; Stammire v. Taylor, 48-210; McCormick v. Monroe, 46-14; Lovinggood v. Burgess, 44408; Stammire v. Powell, 35-312; Strother v. Cathey, 5-162; University v. Sawyer, 1-159; 3-98; Avery v. Strother, 1558.

Interesting discussion of action to quiet title claimed by defendants by adverse possession under a grant obtained by entry of land under this section: Weaver v. Love, 146.

II. WHAT MAY BE GRANTED.

1693. Land subject to. All vacant and unappropriated lands, belonging to the state, shall be subject to entry by any citizen thereof, in the manner hereinafter provided, except-

1. Lands covered by navigable waters.

2. Lands covered by the waters of any lake, or which, though now covered, may hereafter be gained therefrom by the recession, draining, or diminution of such waters, or have been so gained heretofore, and not lawfully entered.

3. Marsh or swamp land, where the quantity of land in any one marsh or swamp exceeds two thousand acres, or where, if of less quantity, the same has been surveyed by the state, or by the state board of education, with a view to draining and reclaiming the

same.

Code, s. 2751; R. C., c. 42, s. 1; 1854-5, c. 21. For special act excepting from entry lands covered by Little River in Richmond and Montgomery counties, see 1907, chapter 433.

Land covered by navigable waters not subject of grant: State v. Young, 138-572; State v. Twiford, 136-603; Holley v. Smith, 130 86; State v. Spen cer, 114-777; Bond v. Wool, 107-139; Hodges v. Williams, 95-331; Skinner v. Hettrick, 73-53; State v. Glen, 52-325; Ward v. Willis, 51-183; Collins v. Benbury, 27-126; Tatum v. Sawyer, 9-226. "Navigable waters" defined: State v. Twiford, 136-607; State v. Baum, 128-600; Mnfg. Co. v. R. R., 117-579; State v. Eason, 114-787; State v. Narrows Island Club, 100-477; Hodges v. Williams 95-331; State v. Glen, 52-325; Collins v. Benbury, 25-277; Wilson v. Forbes, 13-30.

When lands are granted they are no longer subject to entry as "vacant and unappropriated lands:" Berry v. Lumber Co,. 141-386; Lumber Co. v. Coffey, 144-560; Stewart v. Keener, 131-487; Dew v. Pyke, 145-300; Rowe v. Lumber Co., 129-97; Janney v. Blackwell, 138-437; Newton v. Brown, 134442; Midgett v. Midgett, 129-21; State v. Bevers, 86-588; Hoover v. Thomas, 61-184; Harry v. Graham, 51-462; Lovinggood v. Burgess, 44408; Stammire v. Powell, 35-312; O'Kelly v. Clayton, 19-249; Featherston v. Mills, 15-596; Strothers v. Cathey, 5-164; University v. Sawyer, 1-159; 3-98.

By making entry, no title to land is acquired, but only right to call for grant upon compliance with statute, entry being a mere option to buy: Dew v. Pyke 145-300; Frasier v. Gibson, 140-272; Janney v. Blackwell, 138-437; Newton v. Brown, 134-442; Kimsey v. Munday, 112-816; Gilchrist v. Middleton, 107-678; Bryan v. Hodges, 107-497; Hall v. Hollofield, 76476; Plemmons v. Fore, 37-312.

Rocks in river above surface of water are vacant and unappropriated lands and subject to entry: Jones v. Jones, 2-488; McKenzie v. Hulet, 4-613.

Grant covering land, part of which not subject to entry, is good as to that part not covered by prior entry: Hough v. Dumas, 20-473.

As to burden of proof under section, see Walker v. Carpenter, 144-674; Bowser v. Wescott, 145-56.

1694. What swamp lands may be. Marsh or swamp lands, lying in a swamp where the quantity of land in that swamp or marsh does not in the whole swamp or marsh exceed two thousand acres, and which has not been surveyed by the state or state board of education,

and marsh or swamp lands, unsurveyed as aforesaid, not exceeding fifty acres in one body, though lying within a marsh or swamp of a greater number of acres than two thousand, may be entered, when the same shall be situated altogether between the lines of tracts heretofore granted.

Code, s. 2751; R. C.. c. 42, s. 1; 1854-5, c. 21.

1695. Swamp lands defined. The words "marsh and swamp land" wherever employed in this chapter, and the words "swamp lands" employed in the statutes creating the literary fund and literary board of North Carolina and the state board of education of North Carolina, or in any act in relation thereto, shall be construed to include all those lands which have been or may now be known and called "swamp" or "marsh" lands, "pocosin bay, "briary bay" and "savanna," and all lands which may be covered by the waters of any lake or pond.

1891, c. 302. Statute referred to in Board of Education v. Makely,

139-38.

1696. Land covered by water, for wharves. 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 the 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. When any such entry shall be made in front of the lands of any incorporated town, the town corporation shall regulate the line on deep water, to which wharves may be built. This shall not affect existing rights. For all lands thus entered there shall be paid into the treasury not less than one dollar per acre. When any person shall have erected a wharf on public lands of the description aforesaid, before the first day of January, one thousand nine hundred and three, such person shall have liberty to enter said land, including his wharf, under the restrictions and upon the terms above set forth: Provided, no land covered 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: Provided

1889, c. 555; 1893, c. 17; Entry of riparian owner straight lines including

further, no person shall be allowed to enter and obtain a grant for any land in the waters of Onslow county, in which the tide ebbs and flows, within thirty feet of the shore at low-water mark, unless the enterer shall be the owner of the adjacent shore. Code, s. 2751; R. C., c. 42, s. 1; 1854-5, c. 21; 1893, c. 4; 1893, c. 349; 1901, c. 364; 1891, c. 532. for purpose of erecting wharf is confined to front of his own land: Holley v. Smith, 132-36; Bond v. Wool, 107-139—— and such owner acquires absolute right in land up to deep water, Bond v. Wool, 107-139-and may erect wharf next to land up to deep water and by entry obtain title, Ibid; Gregory v. Forbes, 96-77. Only owner of abutting land can make entry: Zimmerman v. Robinson, 114-39. Right of riparian owner to construct wharves is subject to legislative control, and also regulations of adjoining incorporated town: Bond v. Wool, 107139. Right granted can only be transferred by conveyance of abutting land: Zimmermann v. Robinson, 114-39; Land Co. v. Hotel, 132-517.

Duty of incorporated town, upon application of reparian owner, to regulate line to which wharves may be built: Wool v. Edenton, 113-33; 117-1; Wool v. Saunders 108-730-and this performance of duty may be enforced by courts: Wool v. Edenton, 113-33.

State can only grant land under navigable water for wharves and county commissioners have no power to authorize building of wharf for purpose of public road: Gregory v. Forbes, 96-77.

Grant to riparian owner of land covered by navigable water for purpose of erecting wharves, etc., conveys only easement therein: Land Co. v. Hotel, 132-517.

Riparian owner has right to erect and maintain wharves subject to provisions of section declaring that navigation shall not be obstructed: Riddick v. Dunn, 145-34.

For right of fisheries on land entered, see section 2460 and annotations thereunder.

1697. Fisheries established. Whenever any person shall acquire title to lands covered by navigable water as required by law for wharves, the owner or person so acquiring title shall have the right to establish fisheries upon said lands; but this right shall not authorize any person to obstruct navigation.

Code, s. 2752; 1874-5, c. 183, ss. 1, 6. See section 2460.

1698. Prior right of fishery in whom. Whenever the owners of lands covered by navigable waters shall improve the same by clearing off and cutting therefrom logs, roots, stumps or other obstructions, so that the said land may be used for the purpose of drawing or hauling nets or seines thereon for the purpose of taking or catching fish, then and in that case the person who makes or causes to be made the said improvements, his heirs and assigns, shall have prior right to the use of the land so improved, in drawing, hauling, drift

ing or setting nets or seines thereon, and it shall be unlawful for any person, without the consent of such owner, to draw or haul nets or seines upon the land so improved by the owner thereof for the purpose of drawing or hauling nets or seines thereon. This section shall apply where the owner of such lands shall erect, or shall have erected, platforms or structures of any kind thereon to be used in fishing with nets and seines.

Code, s. 2753; 1874-5, c. 183, ss. 2, 3, 4. See section 2460.

1699. What void; not color of title. Every entry made, and every grant issued, for any lands not authorized by this chapter to be entered or granted, shall be void; and every grant of land made since the sixth day of March, one thousand eight hundred and ninety-three, in pursuance of the statutes regulating entries and grants shall, if such land or any portion thereof has been heretofore granted by this state, so far as relates to any such land heretofore granted, be absolutely void for all purposes whatever, shall confer no rights whatever upon the grantee or grantees therein or those claiming under such grantee or grantees, and shall in no case and under no circumstances constitute any color of title whatsoever to any person whomsoever.

Code, s. 2755; 1893, c. 490; R. C., c. 42, s. 2. See annotations under sections 382 and 1693. Entry made and grant issued in violation of provisions of chapter, void: Holley v. Smith, 130-85; Dosh v. Lumber Co., 128-86.

Provisions of section that junior grant shall be color of title so far as it covers land previously granted does not apply to grants issued before March 6, 1893: Weaver v. Love, 146-.

Though grant from state covers same land included in older grant yet, title being no longer in state, junior grant is nevertheless color of title which will ripen into complete title by adverse possession: Ibid.

Adverse possession of plaintiffs, under a junior grant (which was color of title) from Oct., 1888, to Dec., 1897, vested the title in them as against owners of legal title under a senior grant, it not appearing that any of latter were exempt from operation of statute of limitations, by reason of any disability, and a married woman who acquired no title by another junior grant issued to her, can not use her disability to defeat rights of plaintiffs: Berry v. Lumber Co., 141-386.

1700. How elected: term of office. The board of commissioners of the several counties shall elect one person to receive entries of claims for lands within each county; and such entry-taker shall hold his office for four years.

Code, s. 2756. Entry taker can not hereunder appoint deputy: Pearson v. Powell, 100-86; Maxwell v. Wallace, 38-593. Acts done by one in ca