Zimmerman v. . Robinson

Avery, J.: The assignment of error is in the refusal to *47 give certain instructions embodied in the prayer of the plaintiffs and the substitution of a different charge in its stead. The Court instructed the jury at the request of the plaintiffs, (1) that riparian rights are property incident to land abutting on navigable water, and cannot be conveyed without a conveyance of the land to which such rights are incident; (2) that lands covered by navigable water are subject to entry only by persons whose lands abut upon such waters, and can be entered only in straight lines extending from the front of the high land to the deep w’ater. Subsequently the jury were told in effect that it was their province to determine whether the defendant’s land extended to the bank of the navigable stream, and if it did the grant to the feme plaintiff would be void. The statement of the case on appeal is not so full or so clear as it could have been made. It was incumbent on the appellant to have submitted and insisted on a proper presentation of the facts upon which he relied to sustain his contention. It being left to the jury to determine whether the defendant’s line extended to the bank of the navigable water, after they had been instructed in effect that the law would give to the riparian proprietor certain rights as an incident to his ownership of the shore,.we infer that they found from the testimony, as they were warranted in finding, that the land of the feme plaintiff did not include the shore when the grant from the State wras issued to her on the 19th of July, 1890. The plaintiffs had by deed, with a covenant of warranty, conveyed on the first day of September, 1880, a tract of land embracing the old dock and extending south of it, “bounded on the east by Pasquotank river, south by said river and Tiber creek, north by old dock and Fearing creek, west by the old Messenger lot, now occupied by N. R. Zimmerman and C. E. Zimmerman, thirty feet west from the old warehouse formerly occupied *48 by William Shannon,” etc. If the jury determined that the line A B was located thirty feet west of the warehouse, and extended on the south to the banks of Pasquotank river and Tiber creek, and on the east to Pasquotank river, then wherever the shore of Pasquotank river may have been then located by accretions, the line of that deed would extend. Johnston v. Jones, 28 Meyers’ Fed. Dec., 725 ; Jones v. Johnston, 18 How., 150. If the line A B extended to the margin of Tiber creek, and the boundary on the south and west was the creek and river, as set forth in plaintiffs’ deed to defendant, then, no matter where the intersection of the creek and river may have been, the feme plaintiff was estopped by her covenant of warranty from asserting ownership of the territory east or north of that line. Bell v. Adams, 81 N. C., 118. The witness Shell, who was one of the committee appointed by the Town Commissioners to mark the line of deep water-, testified that the plaintiff N. R. Zimmerman told him that the defendant’s line was that indicated by T A B on the map. There was testimony, therefore, that would warrant the jury in fixing that as the location. Even if the feme plaintiff subsequently entered under another title lapping upon their own deed to the defendant, but occupied only the portion south of the line A B, there was no disseizin of any part of the interference, such as to ripen her new title by an actual conflicting possession under a claim of right, and thereby destroy, after an occupation of seven years, the effect of the estoppel. Any deed made to her subsequently would feed the estop-pel, and she could only have availed herself of it as color of title by actual occupation of the land previously conveyed. Eddleman v. Cook, 7 Jones, 616. If we concede that the feme plaintiff was not answerable in damages for a breach of the covenant of warranty, she was nevertheless bound by the estoppel until she had not only entered under *49 the new conveyance, but acquired title by possession for seven years. 14 Am. & Eng. Enc., 625; 2 Hermon, sec. 1108; Malone on Real Prop. Trials, p. 403 ; Eddleman v. Cook, supra. The law limits the power of a married woman, so that she can only enter into certain executory agreements, enforceable as contracts in reference to her separate real and personal estate. The Code, §1826. But the Constitution, Art. N, sec. (5, confers upon a wife the right to devise, or, with the written assent of her husband, convey her land by deed “ as if she were single.” The right, with the concurrence of her husband, to execute conveyances as if she were a feme sole, has been held to empower her to create a lien upon her separate real estate (Alexander v. Davis, 102 N. C., 17; Newhart v. Peters, 80 N. C., 166), and if the Courts are to allow her deed to operate to any extent as if she were not under coverture, it must be conceded that the power to convey carries with it, by implication as an incident, the liability to estoppel by the covenants usually contained in conveyances. We conclude, therefore, that it was not error to leave the jury to determine whether as a fact the defendant’s deed from the plaintiffs included the water front, and to instruct them if such Vas the case that the issue must be found for the defendant. As the counsel for defendant conceded that the appeal was properly constituted, we will only suggest that it may be well in the future to see that exceptions and assignments of error relied upon by appellants are made to appear more explicitly. There is no error of which the plaintiffs can complain, and the judgment must be Affirmed.