Resort Development Co. v. Parmele

*694 WiNbobNe, J. Tbe assignment of error, based upon exception to tbe signing of tbe judgment from wbicb tbis appeal is taken, presents for decision one question: Do tbe facts shown in tbe agreed statement of facts on wbicb tbis controversy without action is predicated, support tbe judgment rendered? Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E. 2d 15; Duke v. Campbell, 233 N.C. 262, 63 S.E. 2d 255; In re Hall, post, 697; and cases cited therein. While a similar factual situation does not seem to have been presented to tbis Court, we bold that, in tbe light of pertinent statutes, tbe common law, decisions of tbis Court of kindred character, and general principles relating to navigable waters, tbe agreed facts do not support tbe judgment, and that error is made to appear. Decision on tbe first two of tbe three questions stated in the judgment are tbe determinative factors. Tbe answer to first question: “Is tbe plaintiff tbe owner of tbe land described in paragraph 2 of tbe agreed statement of facts?” pivots on tbe answer to tbe fundamental question as to whether on 3 December, 1841, at tbe time Grant 1649 was issued to Stephen Sneeden, tbe land therein described, tbe locus in quo, covered by navigable waters, was tbe subject of entry by, and grant to a private citizen. In tbis connection it is appropriate to note that tbe Revised Statutes of North Carolina (1836) then in effect provided in Chapter 22, Sec. 1, that “All such parts of tbe common law, as were heretofore in force and use within tbis State, or so much of tbe said common law as is not destructive of, or repugnant to, or inconsistent with, tbe freedom and independence of tbis State, and tbe form of government therein established, and wbicb has not been otherwise provided for in tbe whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.” Previously tbe General Assembly of North Carolina, beginning in 1711, bad enacted statutes declaring that “the common law is, and shall be in force in tbis government.” See Laws of N. C. 1711, Chap. 1, Sec. III (Published in Vol. 25 The State Records of North Carolina by Clark), Laws of N. C. 1715, Chap. 31, Sec. VI, Laws of N. C. 1715, Chap. 66, Sec. VIII, Laws of N. C. 1749, Chap. 1, Sec. VI, Laws of 1777 (First Session) Chap. 25, Laws of 1777 (Second Session) Chap. XIV, Sec. II, Laws of N. C. 1778 (First Session) Chap. V, Sec. II. Too, it is pertinent to ascertain what are navigable waters both at common law, and under tbe laws of tbis State. While much has been written on tbe subject, it seems clear that by tbe rule of tbe common law, adopted in England, navigable waters are distinguishable from others by tbe ebbing and flowing of tbe tides, that is, tbe ebb and flow of tbe tide was tbe test of a navigable stream. Hatfield v. Grimsted, 29 N.C. 139; Hodges v. Williams, 95 N.C. 331; Bond v. Wool, 107 N.C. 139, 12 S.E. *695 281. And it is said that for a time our courts adhered to that definition of the common law. But “the rule now most generally adopted, and that which seems best fitted to our domestic condition, is that all water courses are regarded as navigable in law that are navigable in fact,” Douglas, J., in S. v. Baum, 128 N.C. 600, 38 S.E. 900. See also Wilson v. Forbes, 13 N.C. 30; Collins v. Benbury, 25 N.C. 277; s.c., on rehearing, 27 N.C. 118; Fagan v. Armistead, 33 N.C. 433; S. v. Dibble, 49 N.C. 108; S. v. Glen, 52 N.C. 321; S. v. Narrows Island Club, 100 N.C. 477, 5 S.E. 411; S. v. Eason, 114 N.C. 787, 19 S.E. 88; Mfg. Co. v. R. R., 117 N.C. 579, 23 S.E. 43; Land Co. v. Hotel, 132 N.C. 517, 44 S.E. 39; S. v. Twiford, 136 N.C. 603, 48 S.E. 586. In the cases of Collins v. Benbury, supra, the headnotes epitomizing the opinions of the Court are to the effect that what is a navigable stream in this State does not depend upon the common law rule, but that waters, which are sufficient in fact to afford a common passage for people in sea vessels, are to be taken as navigable; that is, that all waters which are áetually navigable for sea vessels are to be considered navigable waters under the laws of this State. Tested by these rules the land in question is covered by waters which come within the common law tidal rule, and the rule of navigability in fact applied in North Carolina. a Moreover, as stated in S. v. Baum, supra, under the common law of England, streams, distinguishable as navigable waters, were said to be publici juris, that is, of public right, — owned by the public and not by any private person, — such common property that “anyone can make use of it who likes.” Black’s Law Dictionary. And, hence, land covered by navigable waters could not be granted. S. v. Baum, supra. And on the other hand, decisions of this Court hold that waters navigable in fact are navigable in law, and to that extent and for that purpose are publici juris — -of public right. S. v. Narrows Island Club, supra. In this connection, it appears that in the case of Tatum v. Sawyer, 9 N.C. 226, involving a grant from the State, bearing date 21 June, 1819, conveying certain land in Currituck County, near Currituck Inlet, this Court, in opinion by Henderson, J., declared that “Lands covered by navigable waters are 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.” But in the Revised Statutes of North Carolina (1836), Chap. 42, entitled “An act concerning entries and grants of land,” the Legislature provided, in Section 1, “That all vacant and unappropriated lands belonging to this State shall be subject to entry in the manner herein pro *696 vided except in tbe cases hereinafter mentioned . . .” (not pertinent here), bnt omitted any reference to the provisions of the Act of 1777. And thereafter the Legislature at its 1846-47 session passed an act, Laws of 1846-47, Chapter 36, in which it is declared “That it shall not be lawful to enter any land covered by any navigable sound, river or creek; and that entries of land lying on any navigable water, shall be surveyed in such manner, that the water form one side of the survey, and the land be laid off back from the water.” And the Legislature, at its 1854-55 session enacted a statute, Chapter 18, Section 1, that “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 water, and others not here pertinent. This last statute has been re-enacted in The Code as Section 2751; Revisal 1693, C.S. 7540, now G.S. 146-1. And in Hatfield v. Grimsted, supra, an appeal from Currituck County, at Spring Term, 1846, and involving two grants, dated in 1839, located so as to take in a small quantity of the marshes at the banks, and then run out with the channel about 1% miles into the Sound, the trial court held that the Sound was not the subject of entry. This Court, in opinion by Ruffin, C. J., wrote as follows: “His Honor probably founded his opinion that the grants to the plaintiff were void upon Laws 1715, Rev. Code 6, Sec. 3, and of 1777, Ch. 114, Sec. 10, which directed how land lying on a navigable water should be entered and surveyed, not adverting to the circumstance that those provisions were not in force in 1839, when the grants were issued. Whether the locus in quo would have been the subject of entry or not, under those acts, it is not material to inquire; for the Revised Statutes, Ch. 42, omits the acts under consideration, and so left the matter at common law. Now, at common law this land could clearly be granted by the sovereign, for this case does not state any regular flood and ebb of the tide in Currituck Sound since the closing of the inlet. The omission in the act of 1836 has been supplied by an act at the late session of the Assembly which re-enacts those parts of the acts of 1715 and 1777; but while they were dormant, and the common law alone in force, the grants to the plaintiff were valid.” And in Ward v. Willis, 51 N.C. 183, involving boundaries of the town of Beaufort as1 contained in its charter, Ruffin, J., adverting to the above statutes, and cases, had this to say: “The Acts of 1715 and 1777, in regulating entries and surveys on which to found a grant, provided that land lying on any navigable water should be surveyed so that the water should form one side of the survey, whether the water was the sea or a bay, creek or river. In Tatum v. Sawyer, supra, Judge Henderson intimated that those provisions could not be considered as prohibiting the entry of land covered by navigable waters, but said, nevertheless, that it *697 was not subject to entry, because, being necessary for public purposes as common highways, it was to be presumed not to have been within the intention. It happened, however, that in the revisal of 1836 those parts of the previous acts were omitted, and therefore the Court felt bound to hold in Hatfield v. Grimsted, 29 N.C. 139, that entries of land in Curri-tuck 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 were frequently not covered by water.” In the light of these decisions we are constrained to hold that the provisions of the Revised Statutes (1836), Chapter 42, Sec. 1, did not have the effect of abrogating, or repealing the common law rule that navigable waters were then publici juris, and hence not subject to entry and grant. The answer to the second question: “If the plaintiff is not the owner of all the land described in paragraph 2 of the agreed statement of facts, is it the owner of that portion of said land which is described in paragraph 11 of the agreed statement of facts ?” is found in the fact that that portion of the locus in quo, described in paragraph 11 is covered by navigable waters, and is not swamp lands within the meaning of G.S. 146-4. Hence, the North Carolina Board of Education was not vested with authority to convey it. The eases relied upon by appellees are distinguishable in factual situation. The judgment below is Reversed.