Newcomb v. County of Carteret

• Decision Date: 02 November 2010
• Docket Number: No. COA09-1254.,COA09-1254.
• Citation: 701 S.E.2d 325
• Parties: Robert Timberlake NEWCOMB, III, Scott D. Nafe, Gary T. Davis, and wife, Karen J. Davis, and Pelham Jones, Plaintiffs v. COUNTY OF CARTERET, United States of America, George Brown, Julian M. Brown, Julian Brown, Jr., Earl Chadwick, Temple Chadwick, Gloria Davis, Randy Frye, Norman Fulcher, Joe O'Neal Garner, Robert Guthrie, Sammy Guthrie, Gray Harris, Maureen Harris, Myron Harris, Tammy Hill, David N. Jones, Larry Kellum, Larry Kellum, Jr., Robert Kittrell, Lee Lawrence, D.A. Lewis, Jeff Lewis, Mark Lewis, Thomas Lewis, and wife, Denise Lewis, Luke Midgett, Randy Steve Milam, Jr., Larry Moore, Charles Newkirk, Craig Newkirk, Becky Paul, the Annie Piner Family Limited Partnership, Rosalie Chadwick Piner, Timmy Potter, Nino Giovanni Pupatti, Luther Robinson, Kenny Rustick, Thomas Allen Smith, Thomas Allen Smith, Jr., Jeffrey Taylor, Samuel Thomas and wife Cynthia Thomas, Susanne White, Kevin Williamson, Sonny Williamson, Melvin Willis, Terry Willis, Robert Wayne Workman, Jr., Defendants.
• Court: North Carolina Court of Appeals

701 S.E.2d 325

Robert Timberlake NEWCOMB, III, Scott D. Nafe, Gary T. Davis, and wife, Karen J. Davis, and Pelham Jones, Plaintiffs

v.COUNTY OF CARTERET, United States of America, George Brown, Julian M. Brown, Julian Brown, Jr., Earl Chadwick, Temple Chadwick, Gloria Davis, Randy Frye, Norman Fulcher, Joe O'Neal Garner, Robert Guthrie, Sammy Guthrie, Gray Harris, Maureen Harris, Myron Harris, Tammy Hill, David N. Jones, Larry Kellum, Larry Kellum, Jr., Robert Kittrell, Lee Lawrence, D.A. Lewis, Jeff Lewis, Mark Lewis, Thomas Lewis, and wife, Denise Lewis, Luke Midgett, Randy Steve Milam, Jr., Larry Moore, Charles Newkirk, Craig Newkirk, Becky Paul, the Annie Piner Family Limited Partnership, Rosalie Chadwick Piner, Timmy Potter, Nino Giovanni Pupatti, Luther Robinson, Kenny Rustick, Thomas Allen Smith, Thomas Allen Smith, Jr., Jeffrey Taylor, Samuel Thomas and wife Cynthia Thomas, Susanne White, Kevin Williamson, Sonny Williamson, Melvin Willis, Terry Willis, Robert Wayne Workman, Jr., Defendants.

No. COA09-1254.

Court of Appeals of North Carolina.

Nov. 2, 2010.

Appeal by certain defendants and cross-appeal by plaintiffs from Order entered 9 March 2009 by Judge Russell J. Lanier, Jr., in Carteret County Superior Court. Heard in the Court of Appeals 23 February 2010.

Ward and Smith, P.A., by Ryal W. Tayloe, New Bern, for plaintiff-cross appellants/appellees Scott D. Nafe, Gary T. Davis, Karen J. Davis, and Pelham Jones.

Harvelland Collins, P.A., by Wesley A. Collins, Morehead, for plaintiff-cross appellants/appellees Robert Timberlake Newcomb, III, Gary T. Davis, Karen J. Davis, and Pelham Jones.

Chesnutt, Clemmons, Peacock & Long, P.A., by Gary H. Clemmons, New Bern, for defendants-appellants/appellees George Brown, Julian M. Brown, Julian Brown, Jr., Earl Chadwick, Temple Chadwick, Randy Frye, Norman Fulcher, Joe O'Neal Gardner, Robert Guthrie, Sammy Guthrie, Maureen Harris, Tammy Hill, Larry Kellum, Larry Kellum, Jr., Robert Kittrell, Lee Lawrence, D.A. Lewis, Jeff Lewis, Mark Lewis, Thomas Lewis, Denise Lewis, Luke Midgett, Randy Steve Milam, Jr., Larry Moore, Charles Newkirk, Craig Newkirk, Becky Paul, Nino Giovanni Pupatti, Luther Robinson, Kenny Rustick, Thomas Allen Smith, Thomas Allen Smith, Jr., Jeffrey Taylor, Kevin Williamson, Sonny Williamson, Melvin Willis, Terry Willis, and Robert Wayne Workman, Jr.Wheatly, Wheatly, Weeks & Lupton, P.A., by Claud R. Wheatly, III, Beaufort, for defendant-appellee Carteret County.

ERVIN, Judge.

Defendants George Brown, Julian M. Brown, Julian Brown, Jr., Earl Chadwick, Temple Chadwick, Randy Frye, Norman Fulcher, Joe O'Neal Gardner, Robert Guthrie, Sammy Guthrie, Maureen Harris, Tammy Hill, Larry Kellum, Larry Kellum, Jr., Robert Kittrell, Lee Lawrence, D.A. Lewis, Jeff Lewis, Mark Lewis, Thomas Lewis, Denise Lewis, Luke Midgett, Randy Steve Milam, Jr., Larry Moore, Charles Newkirk, Craig Newkirk, Becky Paul, Nino Giovanni Pupatti, Luther Robinson, Kenny Rustick, Thomas Allen Smith, Thomas Allen Smith, Jr., Jeffrey Taylor, Kevin Williamson, Sonny Williamson, Melvin Willis, Terry Willis, and Robert Wayne Workman, Jr. (Joint Individual Defendants) appeal and Plaintiffs Robert Timberlake Newcomb, III, Scott D. Nafe, Gary T. Davis, and wife, Karen J. Davis, and Pelham Jones cross-appeal from an order entered by the trial court granting partial summary judgment in favor of Plaintiffs with respect to the issue of whether Plaintiffs had riparian rights into Marshallberg Harbor; denying Plaintiffs' request for summary judgment with respect to the issue of whether Plaintiffs' properties were subject to certain prescriptive easements applicable to various roadways, parking areas and paths; and construing certain easements to afford Defendant Carteret County the responsibility for overseeing the installation and use of permanent structures in Marshallberg Harbor and to require Carteret County to serve as an arbiter with respect to any disputes over the installation and use of such structures. After careful consideration of the various challenges to the trial court's summary judgment order that have been advanced by the Joint Individual Defendants and Plaintiffs in light of the record and the applicable law, we conclude that Plaintiffs' appeal from the trial court's decision concerning the prescriptive easement issue should be dismissed and that the remainder of the trial court's order should be affirmed.

I. Factual Background

A. Substantive Facts

Marshallberg is an unincorporated community located at the eastern end of Carteret County on a peninsula that is "bounded on the east by Core Sound, on the south by The Straits, and on the west by Sleepy Creek." Marshallberg presently has a population of approximately 528 people. The mainstays of Marshallberg's economy and culture include commercial fishing and boat building.

On or about 28 June 1948, the Chief Engineer of the United States Army submitted a report, which was printed as part of House Document No. 68 in the 1st Session of the 81st Congress, concerning whether it was advisable to provide "harbor improvements at and in the vicinity of Marshallberg" in connection with an existing waterway project from Pamlico Sound to Beaufort Harbor, North Carolina, by way of Core Sound. On 17 May 1950, Congress passed the River and Harbor Act of 1950 ("Waterway From Pamlico Sound to Beaufort Harbor, N.C.-Harbor Improvement at Marshallberg"), which authorized construction of an approach channel and harbor in Marshallberg in accordance with the project outlined in House Document No. 68.

In House Document No. 68, the Board of Engineers recommended that the existing waterway project be modified "to provide for a harbor 6 feet deep, 100 feet wide, and about 600 feet long in the natural drain between the mouth of Sleepy Creek and the surfaced highway at Marshallberg, with an approach channel of the same depth, 60 feet wide, from the 6-foot contour in The Straits, near the public dock, to the entrance of Sleepy Creek and thence to the harbor...." One of the principal justifications for the project described in House Document No. 68 was the creation of a harbor to protect the boats in the area from "sustain [ing] considerable damage during storms in seeking refuge in the shallow waters of Sleepy Creek." However, House Document No. 68 also indicated that the construction of the proposed harbor was justified for the purpose of inducing more commercial fishermen to visit the area, reducing the time needed to travel to the fishing grounds, providing for the centralizedharboring of boats, and alleviating potential malarial conditions. According to House Document No. 68, the improvements were "necessary for the safety and convenience of established and prospective navigation." The Board of Engineers' recommendation that the Marshallberg Harbor project be approved was conditioned upon assurances from "responsible local interests" that they would "(a) [p]rovide without cost to the United States all lands, easements, rights-of-way, and spoil-disposal areas necessary for the construction of the project and subsequent maintenance, when and as required; (b) hold and save the United States free from all damages due to the construction and subsequent maintenance of the project; and (c) provide at their own expense suitable space for public landing open to all on equal terms." According to House Document No. 68, the construction of the proposed harbor was to be accompanied by various improvements to be provided by the local community in the form of "an access walkway, stalls for tying up boats, and a public landing[.]"

In order to satisfy these conditions, various property owners and Carteret County granted certain easements which facilitated the completion of the project. The three easements provided, in pertinent part, as follows:

1. On 19 October 1956, various land owners, who owned "certain lands in the community of Marshallberg ... upon which or through which the United States Government proposes to construct a small boat harbor for the boat owners of the people of Marshallberg, and any and all other boat owners desiring to use same," "in order to bring about the completion of such a project, with full realization as to the benefit to be received thereby, not only to the said land owners, but to the community and county as well, and [with] full knowledge and recognition that these benefits far exceed the granting and giving of an easement over their lands for said purpose," conveyed "unto the County of Carteret ... a perpetual right and easement, said easement to include the right to have all necessary dredged materials deposited upon the lands herein affected, all without further charge to the United States Government, to said county, later to be assigned, transferred or reconveyed to the United States Government, to dredge and construct a channel from the Straits channel, or Core Sound, into and up Sleepy Creek, and into and upon the lands belonging to the" grantors.

2. On 25 October 1956, Carteret County, in light of the fact that the tract of land covered by the easement "is needed in the construction of" "a channel in Sleepy Creek from Core Sound and a connecting harbor at Marshallberg," and "in consideration of the sum of One ($1.00) Dollar, the receipt of which is hereby acknowledged, and the benefits that will result and accrue to the County of Carteret," conveyed "the perpetual rights and easement to enter unto, dig, or cut away any or all of the hereinbefore described tract or land as may be required for the construction and maintenance of the [harbor project] or any enlargement thereof, and to maintain the portion cut away and removed, as part of the navigable waters of the United States."

3. On 1 June 1957, a number of individuals who owned property bordering "on the boat basin at Marshallberg" "subject to existing easements ... for a boat basin and other utilities," conveyed "the perpetual rights and easements to enter upon, use, manage, improve

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