Den on Demise of Murry v. Sermon

• Decision Date: 30 June 1820
• Citation: 8 N.C. 56
• Court: North Carolina Supreme Court
• Parties: DEN ON DEMISE OF MURRY v. SERMON.

8 N.C. 56

DEN ON DEMISE OF MURRY

v.SERMON.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1820.

If a navigable lake recede gradually and insensibly, the derelict land belongs to the riparious proprietor, but if the recission be sudden and sensible, such land belongs to the State, and it seems is the subject of entry under the act of 1777, c. 1.

THE defendant claimed title to the land in dispute, under a patent, bearing date in 1761, in which the boundaries were described as follows: "Beginning at a poplar on the south side of Mattamuskeet Lake; thence running west with the lake 86 poles to a corner; thence different courses and distances to a corner on the lake again; and thence with the lake to the beginning." The lessor of the plaintiff had obtained a grant, of late date, covering lands, as he alleged, between the defendant's lines and the lake, which had become dry by the recession of the lake since the patent to the defendant was issued, as stated by the plaintiff. Both sides gave evidence of what had been actually

run for the lines of the defendant's land, and it was proved that the lake was a navigable water.

The cause was tried at November Term, 1818, before Hall, J., while he was on the circuit bench, and he directed the jury that, whether the lake had in fact receded or not, it must still be considered a line of the defendant's grant. A verdict was accordingly found for the defendant, and, upon a rule for a new trial, he ordered the case to be transmitted to the late Supreme Court for an opinion whether he had misdirected the jury or not. From HYDE.

HALL, J., delivered his own opinion and that of the Court:

I think that I was incorrect in my charge to the jury below in this, that I directed them to find for the defendant, whether the lake had receded or not, for in either case it remained his boundary. Now, if the recession of the lake was sudden and sensible, the land which it had covered, and which by its dereliction became dry, would not, and ought not, to be included in the defendant's grant; but if the waters receded graduallyand insensibly, the charge would be right, and the lake ought to be considered one of the defendant's boundaries. 2 Bl. Com., 261; Harg. Law Tr., 5; Dyer, 376; Vattell L. N., 193. It is therefore necessary that the fact be found whether the waters of the lake receded imperceptibly or not from the land in dispute, because on that question the rights of the parties depend; and to do that, the rule for a new trial must be...