Resort Development Co. v. Parmele, 607

CourtUnited States State Supreme Court of North Carolina
Citation71 S.E.2d 474,235 N.C. 689
Decision Date11 June 1952
Docket NumberNo. 607,607

Carr & Swails, Wilmington, for plaintiff-appellee.

Kellum & Humphrey, Wilmington, for defendant-appellant.

WINBORNE, Justice.

The assignment of error, based upon exception to the signing of the judgment from which this appeal is taken, presents for decision one question: Do the facts shown in the agreed statement of facts on which this controversy without action is predicated, support the judgment rendered? Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15; Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555; Hall v. Hall, N.C., 71 S.E.2d 471, and cases cited therein.

While a similar factual situation does not seem to have been presented to this Court, we hold that, in the light of pertinent statutes, the common law, decisions of this Court of kindred character and general principles relating to navigable waters, the agreed facts do not support the judgment, and that error is made to appear. Decision on the first two of the three questions stated in the judgment are the determinative factors.

The answer to first question: 'Is the plaintiff the owner of the land described in paragraph 2 of the agreed statement of facts?' pivots on the answer to the fundamental question as to whether on 3 December, 1841, at the time Grant 1649 was issued to Stephen Sneeden, the land therein described, the locus in quo, covered by navigable waters, was the subject of entry by, and grant to a private citizen.

In this connection it is appropriate to note that the Revised Statutes of North Carolina (1836) then in effect provided in Chapter 22, Sec. 1, that 'All such parts of the common law, as were heretofore in force and use within this State, or so much of the said common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State, and the form of government therein established, and which has not been otherwise provided for in the whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.'

Previously the General Assembly of North Carolina, beginning in 1711, had enacted statutes declaring that 'the common law is, and shall be in force in this government.' See Laws of N.C.1711, Chap. 1, Sec. III (Published in Vol. 25 The State Records of North Carolina by Clark) Laws of N.C.1715, Chap. 31, Sec. VI, Laws of N.C.1715, Chap, 66, Sec. VIII, Laws of N.C.1749, Chap. 1, Sec. VI, Laws of 1777 (First Session) Chap. 25, Laws of 1777 (Second Session) Chap. XIV, Sec. II, Laws of N.C.1778 (First Session) Chap. V, Sec. II.

Too, it is pertinent to ascertain what are navigable waters both at common law, and under the laws of this State. While much has been written on the subject, it seems clear that by the rule of the common law, adopted in England, navigable waters are distinguishable from others by the ebbing and flowing of the tides, that is, the ebb and flow of the tide was the test of a navigable stream. Hatfield v. Grimstead, 29 N.C. 139; Hodges v. Williams, 95 N.C. 331; Bond v. Wool, 107 N.C. 139, 12 S.E. 281. And it is said that for a time our courts adhered to that definition of the common law. But 'the rule now most generally adopted, and that which seems best fitted to our own domestic conditions, is that all water courses are regarded as navigable in law that are navigable in fact', Douglas, J., in State v. Baum, 128 N.C. 600, 38 S.E. 900, 901. See also Wilson v. Forbes, 13 N.C. 30; Collins v. Benbury, 25 N.C. 277; s. c. on rehearing, 27 N.C. 118; Fagan v. Armistead, 33 N.C. 433; State v. Dibble, 49 N.C. 107, 108; State v. Glen, 52 N.C. 321; State v. Narrows Island Club, 100 N.C. 477, 5 S.E. 411; State v. Eason, 114 N.C. 787, 19 S.E. 88, 23 L.R.A. 520; Manufacturing Co. v. Albemarle R. R. Co., 117 N.C. 579, 23 S.E. 43; Shepards Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 44 S.E. 39, 61 L.R.A. 937; State v. Twiford, 136 N.C. 603, 48 S.E. 586.

In the cases of Collins v. Benbury, supra, the headnotes epitomizing the opinions of the Court are to the effect that what is a navigable stream in this State does not depend upon the common-law rule, but that waters, which are sufficient in fact to afford a common passage for people in sea vessels, are to be taken as navigable; that is, that all waters which are actually navigable for sea vessels are to be considered navigable waters under the laws of this State.

Tested by these rules the land in question is covered by waters which come within the common-law tidal rule, and the rule of navigability in fact applied in North Carolina.

Moreover, as stated in State v. Baum, supra, under the common law of England, streams, distinguishable as navigable waters, were said to be publici juris, that is, of public right,--owned by the public and not by any private person,--such common property that 'anyone can make use of it who likes.' Black's Law Dictionary. And, hence, land covered by navigable waters could not be granted. State v. Baum, supra.

And on the other hand, decisions of this Court hold that waters navigable in fact are navigable in law, and to that extent and for that purpose are publici juris-- of public right. State v. Narrows Island Club, supra.

In this connection, it appears that in the case of Tatum v. Sawyer, 9 N.C. 226, involving a grant from the State, bearing date 21 June, 1819, conveying certain land in Currituck County, near Currituck Inlet, this Court, in opinion by Henderson, J., declared that 'Lands covered by navigable waters are not subject to entry under the entry law of 1777, not by any express prohibition in that act, but, being necessary for public purposes as common highways for the convenience of all, they are fairly presumed not to have been within the intention of the Legislature.'

But in the Revised Statutes of North Carolina (1836), Chap. 42, entitled 'An act concerning entries and grants of land,' the Legislature provided, in Section 1, 'That all vacant and unappropriated lands belonging to this State shall be subject to entry in the manner herein provided except in the cases hereinafter mentioned * *' (not pertinent here), but omitted any reference to the provisions of the Act of 1777.

And thereafter the Legislature at its 1846-47 session passed an act, Laws of 1846-47, Chapter 36, in which it is declared ...

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8 cases
  • Swan Island Club v. Yarbrough
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 6, 1954 trust for the use of the public and grants for such lands have been forbidden throughout the state's history.* Resort Development Co. v. Parmele, 235 N.C. 689, 71 S.E.2d 474; Bell v. Smith, 171 N.C. 116, 87 S.E. 987; State v. Twiford, 136 N.C. 603, 48 S.E. 586; Shepard's Point Land Co. v......
  • Gwathmey v. State Through Dept. of Environment, Health, and Natural Resources Through Cobey, 74PA94
    • United States
    • United States State Supreme Court of North Carolina
    • December 8, 1995
    ...extent it indicates that the lunar tides test was ever a part of the common law as applied in North Carolina. In Resort Dev. Co. v. Parmele, 235 N.C. 689, 71 S.E.2d 474 (1952), the source of title for a portion of the disputed land originated in an entry law grant from the State in 1841. In......
  • Swan Island Club v. White, 274
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • August 11, 1953
    ...the defendant guilty. In sustaining the instruction the Court stated the rule set out above, which is approved in Resort Development Co. v. Parmele, 235 N.C. 689, 71 S.E.2d 474; State v. Twiford, 136 N.C. 603, 48 S.E. 586; and other North Carolina cases. As a matter of fact, as I understand......
  • State ex rel. Rohrer v. Credle, 480PA87
    • United States
    • United States State Supreme Court of North Carolina
    • June 30, 1988 a clear declaration of such purpose, would justify this conclusion. Id. at 534, 44 S.E. at 44. See also Development Co. v. Parmele, 235 N.C. 689, 695, 71 S.E.2d 474, 479 (1952) (navigable waters are of public right); Ward v. Willis, 51 N.C. (6 Jones) 183, 185-86 (1858) ("The same publi......
  • Request a trial to view additional results

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