Home Real Estate Loan & Insurance v. Shaffner

BaeNHill, J. The common law rule that streams are navigable only as far as tidewater extends developed from the fact that England does not have to any great extent nontidal waters which are navigable. This common law rule has been discarded in this country. Here, the term “navigable waters” has reference to commerce of a substantial and permanent character to be, or which may be, conducted thereon. Leovy v. United States, 177 U. S., 621, 44 L. Ed., 914. By “navigable waters” are meant such as are navigable in fact and which by themselves or their connection with other waters, form a continuous channel for commerce with foreign countries or among the states. United States v. The Montello, 11 Wall., 411, 20 L. Ed., 191; Miller v. New York, 109 U. S., 385, 27 L. Ed., 971. In S. v. Glenn, 52 N. C., 321, it is said: “We hold that any waters, whether sounds, bays, rivers or creeks, which are wide enough and deep enough for navigation of sea vessels are navigable waters.” Following these decisions it appears that the court below properly concluded that the locus in quo is not covered by navigable waters. It is likewise accepted law that each state has full jurisdiction over the lands within its waters, including the beds of streams and other waters. Kansas v. Colorado, 206 U. S., 46. And the title to tidelands is in the state. Mann v. Tacoma Land Co., 153 U. S., 273, 38 L. Ed., 714; U. S. v. Mission Rock Co., 189 U. S., 391; Knight v. United Land Assn., 142 U. S., 161, 35 L. Ed., 974. Before flats lying between highwater mark and the channel of navigable waters are reclaimed by the owner, the public and adjoining owners may exercise paramount right of navigation over them, but if the owner elects to reclaim them he has a right to do so, and if the result is less beneficial to the adjoining owners they cannot complain. Richardson v. Boston, 19 How., 263, 15 L. Ed., 639. The state may either sell or convey its title to lands below highwater mark to a riparian owner or his assigns, or, in case of their neglect to take from the state its grants on the terms offered them, to a stranger, who succeeding to its title has no relation to the adjacent riparian owner except that of common boundary. Hoboken v. Pennsylvania R. R. Co., 124 U. S., 656, 31 L. Ed., 543. As the locus was originally the property of the State, does it possess the power to part with the title thereto, and, if so, in what manner? *69 Tbe rights of tbe parties to tbis controversy are to be determined by tbe answers to these questions. Tbe authorities bearing upon tbis subject in other states are conflicting and it is difficult to thread our way through the divergent decisions. To some extent this conflict may be explained by noting the distinction between the titles to flats and marshes over which the tide ebbs and flows, but which are not in any correct sense of the term navigable waters, and those cases in which the land sought to be recovered is covered by navigable water. Land Co. v. Hotel, 132 N. C., 517, 44 S. E., 39. The apparent conflict in some of our decisions arises from the fact that under our law there are two methods by which the State may part with its title to public lands. In respect to navigable waters the State has no right to grant or convey the land under such waters for any purpose which will destroy or materially impede the use of such waters for navigation. C. S., 1543, makes provision for this situation and permits the grant of an easement for the purpose of erecting wharves on the side of the deep waters of any navigable sound, river, creek or arm of the sea next to the lands of the person erecting such wharves. Entries for this purpose are limited to those who own the adjacent land. The decisions in R. R. v. Way, 172 N. C., 774, 90 S. E., 937, and Land Co. v. Hotel, supra, are made to turn on the provisions of this statute, and they are not authoritative in this controversy. The right of an individual citizen to make entry on vacant land belonging to the State, and the right of the Secretary of State to issue grants therefor are limited by our statute. All vacant and unappropriated lands belonging to the State are subject to entry by any citizen thereof and to grant by the Secretary of State 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 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 2,000 acres, or where if of less quantity the same has been surveyed by the State, or by the State Hoard of Education with a view to draining and reclaiming the same.” C. S., 7540. An entry made to swamp land when the body contains more than 2,000 acres is void and a grant under such entry is void. Board of Education v. Lumber Co., 158 N. C., 314, 73 S. E., 994. The statute, C. S., 7542, provides that the words “marsh and swamp land” and “swamp lands” employed in the statute creating the Literary Fund and Literary Board of North Carolina, and the State Board of Education of North Carolina and 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, etc. *70 Tbe locus in quo is marsh, land and constitutes a part of one continuous tract comprising more than 2,000 acres of marsh land. Thus it appears that no part thereof is subject to entry or grant under the pertinent statutes. How, then, if at all, may the State part with title thereto? Under the terms of O. S., 7542, the State Board of Education is authorized to sell and convey marsh and swamp lands at public or private sale. However, neither our present Constitution nor our. statute law specifically vests title to marsh and swamp lands in the State Board of Education, which is a body corporate under the terms of C. S., 5394. Article IX, sec. 10, of the Constitution provides that the Board of Education is successor to all the powers and trusts of the president and directors of the Literary Fund of North Carolina. An examination of our former statutes discloses that the acts of the General Assembly, session 1825, chapter 1, created “the president and directors of the Literary Fund of North Carolina” a body corporate and vested title to all public lands, including marsh and swamp lands, in said corporation. The provisions of this statute were brought forward in chapter 66 of the revised statutes of 1836. As the corporation thus created held title to all public lands at the time the present Constitution was adopted, the provisions of Article IX, sec. 10, thereof vested title thereto in the present State Board of Education, and C. S., 7621, authorized the latter corporation to sell and convey the same. It follows that the deed from the State Board of Education to the plaintiffs conveyed a valid title to the lands therein described, which include the locus in quo. And the plaintiffs can convey a good title to the defendant unless such title is affected by the fact that the lands described in the deed to the plaintiffs has been reclaimed since the plaintiffs acquired title thereto. The deed to the plaintiffs conveys more than an easement. It conveys a fee simple title. The mere fact that the plaintiffs have improved the lands thus acquired by filling in and reclaiming the same could not be held to divest them of title. Their deed covered marsh land and conveyed a fee. In R. R. v. Way, supra, the plaintiff owned an easement for the purpose of maintaining a wharf in navigable waters. Herein lies the distinction. We are of the opinion that the State Board of Education was vested with title to the property conveyed to the plaintiffs; that its deed to the plaintiffs conveyed a valid title in fee; and that the deed tendered by the plaintiffs to the defendant conveys a fee simple title to the lands therein described. C. S., 7583, provides that: “Whenever in the construction of the inland waterway, or in the improvement of any other waterway within this State, lands theretofore submerged shall be raised above the water by deposit of excavated material, the land so formed shall become the *71 property of the United States for a distance of 1,000 feet on either side of the center of such canal or channel. It does not appear from the agreed statement of facts, and we cannot definitely determine from an inspection of the plat filed as a part of the record herein, whether any portion of the locus in quo is located within 1,000 feet of the center of the inland waterway canal. We, therefore, express no opinion as to the title of the plaintiffs to said lands as against the United States. We merely adjudge that the plaintiffs’ title is good as against the State of North Carolina. Affirmed.