Shepard's Point Land Co. v. Atlantic Hotel

• Decision Date: 05 May 1903
• Citation: 44 S.E. 39,132 N.C. 517
• Parties: SHEPARD'S POINT LAND CO. v. ATLANTIC HOTEL.
• Court: North Carolina Supreme Court

44 S.E. 39

132 N.C. 517

SHEPARD'S POINT LAND CO. v. ATLANTIC HOTEL.

Supreme Court of North Carolina

May 5, 1903

Appeal from Superior Court, Carteret County; Geo. H. Brown, Judge.

Action by the Shepard's Point Land Company against Atlantic Hotel. From a judgment for plaintiff, defendant appeals. Reversed.

C. L Abernethy, Simmons & Ward, and Armistead, Jones & Son, for appellant.

W. W Clark and Lindsay Patterson, for appellee.

CONNOR J.

The plaintiff brings this action for recovery of possession of a tract of land described in the complaint as "lying and being situate in the county of Carteret, in Morehead City adjoining the square on which the hotel building of the defendant is located, and known and described as 'Square No. 83' in the plan of Morehead City." It alleges that the defendant is in possession of the above-described lot, "upon which there has been erected certain walks wharves, bathhouses, pavilion, etc., and that such possession is unlawful and wrongful."

The defendant denies that the plaintiff is the owner of the property described in the complaint, and denies that it is in possession thereof, except that it has a wharf, walkway, and two bathhouses leading from the rear of said hotel over and into the waters of Bogue Sound. It avers "that Bogue Sound is an arm of the sea, navigable for sea vessels and other ships, and the said hotel is about a mile from the Atlantic Ocean; the tide from said ocean ebbs and flows daily in said sound and upon the shore whereon the said hotel is located, and the space between the said hotel and bathhouses and where the walkway and wharf are situated is covered by the waters of said sound, and the defendant is advised that the plaintiff has no title thereto."

The plaintiff claims the land, which is covered by water, described in the complaint, and known in the plan and on the map of Morehead City as "Square No. 83," under the following chain of title, to wit: Grant from the state to John M. Morehead and W. L. Arendell, bearing date May 2, 1856. The grant is made to said grantees, "owners and riparian proprietors of the lands known as the 'Shepard's Point Lands' on Beaufort Harbor." It includes the tract or parcel of land lying around Shepard's Point lands, and between high-water mark and the deep water of Bogue Sound, Newport river, and Calico creek. The description in the grant covers 502 acres of land, and surrounds the lands known as the "Shepard's Point Lands," which by the charter of Morehead City embraces the entire water front of the said city, and runs out from high-water mark on the shores of said lands to the deep water of said sound, river, and creek. The Shepard's Point Land Company was chartered by chapter 136, p. 164, Laws 1856-57. The charter was extended by chapter 50, p. 100, Acts 1887. The town of Morehead City was incorporated by chapter 172, p. 203, Laws 1860-61. Section 6 provided "that the corporate limits of said city shall embrace the entire plan of the city of Morehead as published by the Shepard's Point Land Company, and from the terminus of the Atlantic & North Carolina Railroad Company to Fifteenth street."

The plaintiff introduced deeds tending to show that at the time of issuing the grant, May 24, 1856, the grantees were the owners of square No. 1, and that said square was abutting square No. 83, the latter being the water front covered by water and extending out into Bogue Sound. The plaintiff offered deeds tending to show that the defendant company had acquired title by direct chain from John M. Morehead and W. H. Arendell through the plaintiff, who owned squares No. 1 and 83 at the time of the conveyance of square No. 1, upon which the Atlantic Hotel is located. The plaintiff introduced a deed from the Shepard's Point Land Company to John M. Morehead, dated August 19, 1859, conveying square No. 1, "bounded on the north by Arendell street, on the east by Third street, on the south by Evans street, and on the west by Fourth street." The plaintiff introduced chain of title to square No. 1 from John M. Morehead to the defendant, and also introduced a map of Morehead City. It will appear by reference to that map that Evans street for a considerable distance, and especially between squares No. 1 and No. 83, "is covered by the tide water at high tide, and has never been opened between squares Nos. 1 and 83, and is not used as a public street."

W. L. Arendell, a witness for the plaintiff, testified: "The hotel is on square No. 1, and is known as the 'Atlantic Hotel.' The water front is square No. 83, and is covered by water. At low tide a small portion of it is not covered by water. The wharves and bathhouses on square 83 were built in the latter part of 1880 by the Morehead City Hotel Company, under whom the defendant claims. There are two wharves or piers. They are about 8 feet wide, and one is about 200 feet long, and is connected with the hotel, and extends out into Bogue Sound; about 50 feet from the end of it is the gentlemen's bathhouse. The other pier extends out into the sound about 80 feet, and is connected with the other wing of the hotel, and at the end of it is the ladies' bathhouse. These wharves and bathhouses are in the waters of Bogue Sound, and on square 83. The depth of water at the end of the long pier is from 6 to 8 feet, sometimes more, sometimes less, according to the tide. The depth of the water at the end of the ladies' pier is about 5 feet, varying according to the tide. The tide water at high tide washes up to square No. 1, and within a few inches of the brick foundation of two of the wings of the hotel. Square No. 83 is south of square No. 1, and is generally covered by water. There was a street leading off, upon the plan of said town, between square 83 and square 1. This street is called 'Evans Street,' and is 60 feet wide, but it has not been opened between squares 1 and 83, and is not used as a public street of Morehead City. At high tide it would be very nearly covered by water. The grant to John M. Morehead and W. H. Arendell covers square 83. Evans street was laid off on the plan of the town after the issuing of said grant. Square 83 is always covered by the tide at any ordinary high tide, and the greater part of it is covered at low tide. The ocean tide comes in at the inlet, which is about two miles off, and ebbs and flows over square 83; this square is a part of Bogue Sound. Boats sail from the ocean and on the ocean and back to the hotel, and sail over and about square 83, and tie up and anchor all along the long pier from its end up to 75 or 100 feet towards the hotel, according to the state of the tide. Square 83 covers the deepest part of that part of Bogue Sound, and that part is connected with the balance of the sound by navigable waters for small vessels, both to the eastward and to the westward. The Shepard's Point Land Company and Morehead never did build any wharves or piers on square 83."

His honor submitted to the jury the following issues: "(1) Is the plaintiff the owner and entitled to the possession of the land described in the complaint as square 83? (2) Is the defendant in possession of any part thereof?" The court instructed the jury that if they believed the evidence they should answer the first issue "yes," and the second issue "yes," and the defendant excepted. It is agreed that the court answer the issues accordingly. Judgment was rendered thereupon, and the defendant appealed.

The plaintiff's title and right to recover are dependent upon the construction of section 2751 of the Code, being chapter 21, p. 45, Acts 1854-55, in the following language: "All vacant and unappropriated land belonging to the state shall be subject to entry except lands covered by navigable streams, provided that persons owning lands on any navigable sound, river, creek or arm of the sea, for the purpose of erecting wharves on the side of the deep waters thereof next to their lands, may make entries of the lands covered by water adjacent to their own as far as deep water of such sound, river, creek or arm of the sea, and obtain title as in other cases. But persons making such entries shall be confined to straight lines including only the fronts of their own tracts, and shall in no respect obstruct or impair navigation. And when any such entry shall be made in front of the lands of any incorporated town, the town corporation shall regulate the line of deep water to which entry shall be made."

The question presented for decision is of great importance, and by no means free from difficulty. It will be well, before entering into an examination of the principles and authorities by which we shall be guided in reaching a conclusion, to note the history of the legislation in North Carolina in regard to the control and disposition of our navigable waters. It was held in Tatum v. Sawyer, 9 N. C. 226, that lands covered by navigable waters were 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."

Ruffin J., in Ward v. Willis, 51 N.C. 183, 72 Am. Dec. 570, said: "It happened, however, that in the revisal of 1836 those parts of the previous act were omitted, and therefore the court felt bound to hold, in Hatfield v. Grimstead, 29 N.C. 139, that entries of land in Currituck Sound were good after it ceased to have a tide or be navigable by reason of the closing of the inlet, or rather of such parts of the sound as frequently were not covered by water. When the omissions of the revisal were discovered in 1846, the Legislature, by an act of that year, chapter 36, revived the provision omitted by enacting that...