Pine Knoll Association, Inc. v. Cardon

• Decision Date: 06 May 1997
• Docket Number: No. COA96-347,COA96-347
• Citation: Pine Knoll Association, Inc. v. Cardon, 484 S.E.2d 446, 126 N.C.App. 155 (N.C. App. 1997)
• Court: North Carolina Court of Appeals
• Parties: PINE KNOLL ASSOCIATION, INC. Plaintiff, v. Marvin G. CARDON, Defendant.

Page 446

484 S.E.2d 446

126 N.C.App. 155

PINE KNOLL ASSOCIATION, INC. Plaintiff, v. Marvin G. CARDON, Defendant.

No. COA96-347.

Court of Appeals of North Carolina.

May 6, 1997.

Kirkman & Whitford, P.A. by Neil B. Whitford, Morehead City, for plaintiff-appellant.

Wheatly, Wheatly, Nobles & Weeks, P.A. by C.R. Wheatly, Jr., Beaufort, for defendant-appellee.

JOHN C. MARTIN, Judge.

Plaintiff Pine Knoll Shores Association, an owners association for various Pine Knoll Shores subdivision properties located on the Bogue Banks barrier island, brought this action seeking damages and injunctive relief against defendant Marvin G. Cardon. Plaintiff alleged that defendant had violated its riparian rights, violated restrictive covenants, and trespassed upon its property. Defendant answered denying plaintiff's claim and asserting a counterclaim alleging that plaintiff was in violation of restrictive covenants.

The dispute arises upon the following factual background: Plaintiff and defendant own adjoining canal front properties on the "dead end" canal of Davis Landing Canal, which is navigable by pleasure boats. Plaintiff's tract of land, referred to as "Davis Landing Park," has water frontage along the canal's end. Davis Landing Park and Davis Canal are common property of plaintiff and its members. Defendant's lot is immediately to the west of Davis Landing Park with a small protrusion of its boundary located on the western bank of Davis Landing Canal near the southwest corner of the park. A seawall runs approximately east-west along the park's canal frontage and approximately north-south along defendant's canal frontage.

The properties within Pine Knoll Shores are subject to a Declaration of Covenants and Restrictions, recorded in January 1971 in Book 324, Page 418, Carteret County Registry. On 13 June 1981, members of plaintiff purported to adopt and record an amendment to the restrictive covenants in Book 460, Page 198, Carteret County Registry, which provides, in pertinent part:

ARTICLE 5

4.... [N]o fence, barricade or obstruction may be erected or placed in extensions of the property lines abutting the canals and Bogue Sound which would prevent ingress or egress along the waterfront side of said lots to pedestrians or others lawfully thereon.

Plaintiff maintains a pier which is thirty-five feet in length and three and one-half feet wide, extending southwardly from the center of Davis Landing Park's canal frontage, and an adjacent ramp to the east of the dock for launching small boats. Defendant maintains a dock along his 26.1 feet of canal frontage. Defendant moors his two boats, of approximately thirty feet in length, perpendicular to his dock and parallel to plaintiff's sea wall.

Plaintiff moved for partial summary judgment on the issue of defendant's interference with its riparian rights; and defendant moved for summary judgment dismissing plaintiff's action. At the commencement of the summary judgment hearing, plaintiff sought to voluntarily dismiss its claim for alleged violation of restrictive covenants. The trial court denied plaintiff's motion for summary judgment, granted defendant's motion for summary judgment and dismissed plaintiff's action. Plaintiff appeals.

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The issue on appeal is whether the trial court erred in granting defendant's motion for summary judgment. We affirm in part, reverse in part, and remand.

In addressing a motion for summary judgment, the trial court is required to view the pleadings, affidavits and discovery materials available in the light most favorable to the non-moving party to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. N.C. Gen.Stat. § 1A-1, Rule 56 (1990); Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992). Summary judgment is proper where the moving party can establish that an essential element of the opposing party's claim does not exist, or that the opposing party cannot produce evidence to support an essential element. Id. Summary judgment is an appropriate procedure in a declaratory judgment action. Montgomery v. Hinton, 45 N.C.App. 271, 262 S.E.2d 697 (1980).

I.

We first consider plaintiff's claim for trespass. In order to establish a claim for trespass to real property, plaintiff was required to forecast evidence of the following elements: (1) possession of the property by the plaintiff when the alleged trespass was committed; (2) an unauthorized entry by the defendant; and (3) damage to the plaintiff from the trespass. Lee v. Greene, 114 N.C.App. 580, 442 S.E.2d 547 (1994). The pleadings, affidavits, and answers to interrogatories before the trial court show that owners of property within Pine Knoll Shores are members of plaintiff Association and that members have the right to use "common properties" such as Davis Landing Canal and Davis Landing Park. Likewise, the evidence before the trial court clearly establishes that defendant is a property owner within Pine Knoll Shores, and therefore is a member of plaintiff Association. Plaintiff did not forecast evidence that defendant, as one of its members, is not authorized to use the seawall. Thus, the second element of plaintiff's claim, i.e., unauthorized entry onto plaintiff's seawall, is nonexistent and summary judgment for defendant was proper. Accordingly, the trial court's order granting summary judgment in favor of defendant with respect to the trespass claim is affirmed.

II.

We next consider plaintiff's claim for interference with its riparian rights. Plaintiff contends the trial court erred in granting defendant's motion for summary judgment because there exists a genuine issue of material fact as to whether defendant, by mooring his boats parallel to plaintiff's seawall, interfered with plaintiff's riparian rights. Defendant argues that plaintiff did not retain riparian rights to the Davis Landing Park. Therefore, we must first determine whether each party owns riparian land, and if so, what is the extent of each party's riparian rights.

Riparian rights are vested property rights that arise out of ownership of land bounded or traversed by navigable water. In re Protest of Mason, 78 N.C.App. 16, 337 S.E.2d 99 (1985), disc. review denied, 315 N.C. 588, 341 S.E.2d 27 (1986). A riparian owner has "a qualified property in the water frontage belonging, by nature, to their land, the chief advantage growing out of the appurtenant estate in the submerged land being the right of access over an extension of their waterfronts to navigable water, and the right to construct wharfs, piers, or landings...." Bond v. Wool, 107 N.C. 139, 148, 12 S.E. 281, 284 (1890).

Both plaintiff and defendant admit that lot one and Davis Landing Park are bounded by a navigable waterway, Davis Landing Canal. The record indicates that the Roosevelts owned property known as "Pine Knoll Shores Extension," and were the common source of title to defendant's lot one and plaintiff's Davis Landing Park. Plaintiff offered a deed, granted by the Roosevelts, dated 23 March 1977 recorded in Book 396, Page 43, Carteret County Registry conveying "all of the right, title and interest" to various common facilities including "Davis Landing and the land area underlying, and the Park adjacent thereto." Defendant offered many deeds showing that he acquired title by direct chain from the Roosevelts. Defendant was granted a deed in July of 1989 recorded in Book 614, Page 196, Carteret County Registry, conveying lot 1 with "all privileges and appurtenances thereto belonging to the Grantee in fee simple." Therefore, any such title that the Roosevelts had, including riparian rights, passed to and vested in plaintiff and defendant. Accordingly, the record indicates that both plaintiff and defendant are owners of land with riparian rights.

The next issue is whether the trial court correctly determined the extent of the parties' riparian rights. In Bond v. Wool, 107 N.C. 139, 12 S.E. 281 (1890), our Supreme court defined riparian rights where the boundary lines of property were reasonably perpendicular to the shoreline and the...