Bond v. Wool

• Decision Date: 13 October 1890
• Citation: 107 N.C. 139,12 S.E. 281
• Court: North Carolina Supreme Court
• Parties: Bond. v. Wool.

107 N.C. 139

12 S.E. 281

Bond.

v.Wool.

Supreme Court of North Carolina.

Oct. 13, 1890.

Riparian Rights—Navigable Waters — Injunction.

1. Plaintiff and defendant owned adjoining lots fronting south on a navigable sound, defendant's lot adjoining plaintiff's on the west. Within his own lines, extended south over the water, the plaintiff built fish-houses and a wharf, to which access was had at the west side of his lot. By extending the lines still further, deep water could have been reached by the plaintiff at the end of his lot, instead of at the side. Held, that the defendant had a right to extend the lines of his lot south to deep water, and to improve between them, though by so doing he shut off access to plaintiff's wharf on the west.

2. A littoral or riparian owner has, at common law, a qualified interest in the water frontage belonging by nature to his land, and the right to construct thereon wharves, piers, or landings.

8. This right is not affected by Acts N. C. 1777, c. 144, § 10, which restricted to the watermark the right of entry on navigable waters, but did not by any prohibitory provision prevent theriparian grantee from acquiring, with the absolute property to the margin of the water, the qualified property which gave him access to the navigable water.

4. Code N. C. § 2751, excepted from entry lands covered by navigable streams, but " provided that persons owning lands on any navigable sound, river, creek, or arm of the sea, may, for the purpose of erecting wharves on the side of the deep water thereof, next to their own land, make entries of the land covered by water adjacent to their own, as far as the deep water, and obtain title as in other cases. " Held, that the section was not intended to wrest from the riparian owner any rights he already had, but only to allow him to acquire an absolute instead of a qualified property.

5. A mere threat to tear down a wharf, without any overt act evincing a purpose to execute it, is not sufficient to warrant an injunction, unless the insolvency of the defendant is shown.

This was a civil action heard before Whitaker, J., at the spring term, 1890, of the superior court of Chowan county. The contention of the parties will be better understood with the aid of the map referred to in the testimony:

The complaint is as follows: " The plaintiff, complaining of the defendant, says (1) that on the 3d of November, 1887, he was the owner, and in the quiet and rightful possession, of certain buildings and structures in Edenton at the foot of Water street, which were used by him in landing fish caught in the Albemarle sound, and packing the same for market, and which he had constructed at large expense; (2) that these houses and structures are reached by boats from the Albemarle sound and Edenton bay, and, if this means of approach be cut off, they will be rendered entirely valueless; (3) that on the day named, the defendant threatened wrongfully to tear down and destroy said buildings and structures, and, unless restrained by this court, will do so, wrongfully and unlawfully; (4) that the defendant also threatened at the same time, and has procured timber for the purpose of carrying out his said threat, to construct a wharf in Edenton bay, running out from certain lots owned by him in Edenton, in such a manner as to obstruct and cut off all approaches by water to the plaintiff's said property, and so as to obstruct and impair the navigation of said bay and Albemarle sound; (5) that Edenton bay and Albemarle sound are navigable waters;

(6) that Edenton is an incorporated town; (7) that the defendant is not a citizen of the United States, and has obtained and can obtain no grant for the land covered by the water in which he proposes to construct his said wharf; (8) that the said action of said Wool is wrongful and unlawful. Wherefore plaintiff demands judgment that the defendant be restrained and enjoined perpetually from destroying, interfering with, and injuring the plaintiff's said houses and structures, and from obstructing the approaches to the same, and from building the wharf aforesaid, and for other relief to which this complaint may entitle him."

The answer of defendant is as follows: "The answer of the defendant to the complaint of the plaintiff in this action: (1) The defendant denies the allegation in the first section of the complaint so far as admitting title in the buildings and houses named, or to the land on which they stand, in the plaintiff, and he denies the same. He admits that the plaintiff is in possession of and uses a house situated as described in the complaint, and for the purpose of receiving, shipping, and packing fish. (2) Defendant has not sufficient information in regard to the facts alleged in second clause of complaint to form a belief and he denies the same. (3) He denies that he ever threatened to destroy or tear down the buildings erected by the plaintiff, as charged in the third clause of the complaint. Defendant alleges that plaintiff is in possession of a lot in the town of Edenton, at the intersection of Blount and Granville streets, and which runs with Granville street, and is bounded by the same to the waters of Edenton bay. The defendant owns a lot adjoining, running from Blount street to the waters of Edenton bay; and he alleges that the dividing line between him and the plaintiff, continued into the water, will embrace and inclose all the buildings and structures erected by the plaintiff. The defendant was preparing to erect a wharf within his own lines upon the waters of the bay, as he had a right to do, and, to this end, he drove a line of piles within his own lines, near the line of the plaintiff, but not en-croaching upon the line continued in the water, or touching or interfering with the buildings of the plaintiff. The plaintiff tore down a portion of the defendant's piles; claims the right to all the defendant's water-front. The plaintiff has a clear, unobstructed water-front to the deep water of the bay by continuing his lines in a straight direction, parallel with Granville street. The defendant also has access to deep water by continuing his lines in the same direction. The plaintiff is not content with reaching deep water himself, but he claims also the right to run his lines across the lines of the defendant, and bar his access to the water. Such claim is inequitable and unlawful, and is the foundation of the present action. (4) The defendant denies that he ever threatened or attempted to interfere with plaintiff's buildings. He did procure timber to build a wharf upon his water-front, within his own lines extended to deep water, as he has a right to do, and he avers that he has the right lawfully to do this; but the wharf, as he intended to build it, would not interfere with any of plaintiff's buildings, and cannot interfere with or injure them. Nor has he made any preparation with any material or other means to do the acts he is charged with in this section or any other section of the complaint. He further denies that the erection of a wharf upon his water-front at deep water will at all interfere with or obstruct the access of the plaintiff to the deep water of the bay or sound. Plaintiff has an unobstructed way to such deep water, which would not be touched at all, nor in the least obstructed, by the erection of his wharf. He denies also, as charged, that the erection of his wharf at deep water will obstruct, or at all interfere with, the free navigation of the bay or sound; and he denies that he has yet erected any wharf. (5) He admits the fifth clause of the complaint, and also the sixth clause. (7) He denies the seventh allegation of the complaint. (8) He denies the eighth clause of complaint, and alleges that the plaintiff has no equity, and has alleged none in his complaint. And he prays to be hence discharged with his costs, and that the injunction be dissolved."

" The defendant, having obtained leave to file an amended answer in this cause, says (1) that allegations 1, 2, 3, 4, 7, and 8 of the complaint are untrue; (2) that allegations 5 and 6 thereof are true; (3) that the buildings mentioned in the complaint are in and upon the navigable and public waters mentioned in item 5 of the complaint, and a public nuisance; (4) that the said buildings are constructed of the most inferior kind of material, and are not worth more than 200 dollars; (5) that the defendant is entirely solvent, and answerable in any amount of damages which the plaintiff may recover of him. Wherefore he prays that he recover his cost of the plaintiff, and go without day."

A jury was duly impaneled, and the following evidence introduced: H. A. Bond, Jr., the plaintiff, testified: "I am engaged in the fishing business. My fish houses are at the intersection of Granville and Water streets; have been there ever since 1878. Fish-houses are located on an old sunken wharf. At the time I built, my father had possession of the water-lot fronting these fish-houses. Defendant threatened to tear down part of my wharf. We had him enjoined. He wanted to build a fish-house immediately upon front of landing-place. This, if done, would destroy my water-privileges. The draught of my boats, loaded, about two feet; unloaded, eight or ten inches. * * * The part of the bay where fish-houses are is known as 'Matchemacomac Creek.' In fact, this and Eden ton bay are one body of water. All this water, up to where these houses are, is navigable by small boats. Main channel is about 60 or 70 feet south, and 25 feet west. Boats approach fish-houses from the bay. I built fish-houses, and at that time water about same as it is now, —8 inches shallowest part, two feet at deepest. Boats of five tons could go to fish-house. The red line, the short black line, and the long black line running, from Blount street south to the water. The red line is the one I contend to be the proper line between me and the defendant. The short black line is where defend...