Bond v. Wool

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

12 S.E. 281

107 N.C. 139

BOND v. WOOL.

Supreme Court of North Carolina

October 13, 1890

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:

(Image Omitted)

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 encroaching 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 and 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 Edenton 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 defendant has his fence. The long black line is the one defendant claims as the line between me and him. Defendant started to run his pilings 60 or 70 feet from shore, about on red line, and towards my fish-houses. If pilings had been run that way along red line, when they got in front of fish-houses there would be about one foot between pilings and wharf. I heard defendant say if I didn't remove my wharf he would. He had personally ordered me to do it. No lot between fish-houses and street. At time I built fish-house, from 8 inches to 2 feet on old wharf, I never knew anybody to be in possession of it. The fish-house runs west from Granville street into water." Redirect examination: "What appears in map as the west line of Granville street is not the true line; the true line is west of that. My fish-house is of Matchemacomac creek. India wharf and John's island constitute the two points of the mouth of that creek. The creek flows into the bay. The navigable water is in front of defendant's lot, and on the western side. The difference between depths of water on western side of defendant's lot extended and the water immediately in front of my wharf is that on western side it is deep enough for any boat navigating these waters, while immediately in front of my wharf it is not more than two feet. Deep water continues from defendant's lot, extended half way across towards my fish-house. Smallest boats could get to my fish-house ordinary boats could not. The red line is the true line between my father's lot and the defendant's lot. My fish-houses don't obstruct this line. In building on defendant's lot, deep water would be reached in less than half the distance on the western side than on the eastern side. Not possible for boats to run on northern. It is not possible for...