Hodges v. Williams

• Decision Date: 31 October 1886
• Court: North Carolina Supreme Court
• Parties: WILLIAM HODGES v. SAMUEL WILLIAMS et als.

95 N.C. 331

59 Am.Rep. 242

WILLIAM HODGES

v.SAMUEL WILLIAMS et als.

Supreme Court of North Carolina.

October Term, 1886.

EJECTMENT, tried at February Term, 1886, of HYDE Superior Court, before Gudger, Judge.

A jury trial was waived, and the Court found the facts as follows:

That the land in dispute was granted by the State, a portion thereof to John Hall in 1795, and the remaining portion in 1819 to Green Hill.

That the plaintiff is the owner and in possession of the land set out and described in the plat hereto annexed, beginning at the figure 7 thereon, running thence to 8, 9, 10, 11, 13, 38, 12, 31, 29, 1, 25, 7; that the beginning thereof is at a gum stump on the margin of Mattamuskeet Lake at 7, thence running by 8, 9, 10, &c., to a pine at 38 on the margin of said lake, thence along the margin of said lake by 12, 31, 29, 1, 25, to the gum stump at 7, the beginning.

The plaintiff does not connect himself with either of the grants heretofore mentioned, but shows color of title and possession thereunder, since 1824, of the land contained in the boundaries above set out, beginning at the figure 7. It is admitted that he is the owner and in possession of the said land within the boundaries above named.

The land in dispute was covered by the waters of Mattamuskeet Lake in 1824, and has since that time “grown up” or been made, (to use the words of the witnesses), by the gradual and imperceptible recession of the waters of said lake, and left bare by reason of the drainage by the canals and by evaporation. The recession of the waters of the lake was first indicated and made apparent by the gradual appearance of two islands in the lake near the shore, and the land in controversy, (of which the said islands are a part), has been gradually and imperceptibly left bare by the recession of the water. The land has been making, since the waters were taken down by the canals, and not much before, if any. The land admitted to be the land of the plaintiff, is immediately adjoining the land in dispute, which first mentioned land runs down to the water's edge of said lake as it was in 1824.

That Mattamuskeet Lake is fifteen miles long and eight miles broad, and until the cutting of the canals hereinafter mentioned, had no known or visible outlet to, or connection with other waters. That fifty or more years ago, the water in the deepest part of the lake was from eight to eleven feet deep; that forty years ago it was six feet deep, and that it is now about three and one-half feet deep. That about the year 1835, and soon thereafter, three canals were cut, connecting said lake with Pamlico Sound, and that in consequence thereof, some of the water of said lake was rained off and into the said sound.

That from the earliest recollection of the witnesses, fifty or sixty years ago, the said lake has been navigated by canoes. That at one time, a flat-bottomed vessel, with a mast and sail, carried corn, staves and other produce from one side of the lake to the other, and that about 1862 or 1863, an open boat passed through and out of said lake, through one of the said canals, into Pamlico Sound, and thence to New Bern, N. C., loaded with and carrying produce and other articles to the said market.

The defendants introduced no evidence. The plaintiff has never had the possession of the land in dispute, and the defendants have been in possesssion thereof for four or five years prior to the commencement of this action, and are still in possession thereof.

Upon the facts found above, the Court was of the opinion that the plaintiff was entitled to recover the land mentioned in the complaint.

From the judgment the defendants appealed to the Supreme Court.

Mr. E. F. Aydlett, for the plaintiff .

Mr. Geo. H. Brown, Jr. ( Mr. J. W. Albertson was with him on the brief), for the defendants .

ASHE, J. (after stating the facts).

In considering the questions involved in this appeal, that which presents itself in limine is, whether Mattamuskeet Lake is a navigable water. If navigable, then the land covered by its waters is not the subject of entry and grant, and the doctrine of accretion applies, but if not navigable, then the soil underlying its waters is the subject of entry and grant, and when granted, is the private property of the grantee.

By the common law, the criterion for determining whether a water was navigable or not, is the ebb and flow of the tide, extending so far up the rivers entering into the sea as there is a flux and reflux of the tide. Gould on Water Courses, §42.

But the tidal test has no application to the rivers and other waters in this State, as it has not in any of the other States. It has been decided in most of the States as inapplicable to the geographical condition of this country.

The decisions of the Courts in the different States of the Union are so diverse on this question, that it is needless to go beyond our own decisions to determine what are navigable waters.

The criterion adopted by this Court in several adjudications upon the subject, is that all waters which are actually navigable for sea vessels, are to be considered navigable waters under the laws of this State.

In Collins v. Benbury, 3 Ired., 277, it is held, that a navigable stream in this State, does not depend upon the common law rule, but waters which are sufficient in depth to afford a common passage for people in sea vessels, are to be taken as navigable. And in State v. Glenn, 7 Jones, 321, Judge BATTLE in his opinion used this language: “We hold that any waters, whether sounds, bays, rivers, or creeks, which are wide enough and deep enough for the navigation of sea vessels, are navigable waters, the soil under which is not the subject of entry and grant under our entry laws.” And in Wilson v. Forbes, 2 Dev., 30, the Court made it no question as to what general rule was to be adopted to determine the character of a water-course, but held that a stream eight feet deep, sixty yards wide, and with an unobstructed navigation for sea vessels from its mouth to the ocean, is a navigable stream, and its edge at low water-mark is the boundary of the adjacent land, and it was in that case held, that any water-course not navigable for sea vessels, but capable of being navigated by boats, floats and rafts, technically styled navigable streams, are the subject of special grant by the State under the entry law.

This lake is not a navigable water under the laws of the United States, for it has been held in 11 Wallace, 411, that a water-way wholly within a State, and not connected with other waters, rivers, and streams leading to the sea, is not navigable. But this lake had no such connection. Being then not a navigable water under the laws of the United States, the question remains, is it navigable under the laws of this State? According to the definition of navigable waters as given in these cases, they must be navigable for sea-going vessels. But this rule has been somewhat modified by the recent decision of this Court in the case of Broadnax v. Baker, 94 N. C., 675.

But that decision is not really inconsistent with the authorities cited. It only qualifies them by holding that in this State, the...