State ex rel. Bruton v. Flying 'W' Enterprises, Inc., 199

• Decision Date: 10 April 1968
• Docket Number: No. 199,199
• Citation: 273 N.C. 399,160 S.E.2d 482
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina, ex rel. T. Wade BRUTON, Attorney General of the State of North Carolina v. FLYING 'W' ENTERPRISES, INC., a corporation; W. L. Wilde, Robert T. Squyres, Jerry Adams, and John Doe, Richard Roe, and All Other Persons Threatening toTrespass Upon the S.S. MODERN GREECE, Her Engines, tackle, apparel, furnitureor cargo, andall other vessels lying within a marine league off the coast of the State ofNorth Carolina.

Page 482

160 S.E.2d 482

273 N.C. 399

STATE of North Carolina, ex rel. T. Wade BRUTON, Attorney General of the State of North Carolina v. FLYING 'W' ENTERPRISES, INC., a corporation; W. L. Wilde Robert T. Squyres, Jerry Adams, and John Doe, Richard Roe and All Other Persons Threatening toTrespass Upon the S.S MODERN GREECE, Her Engines, tackle, apparel, furnitureor cargo, andall other vessels lying within a marine league off the coast of the State ofNorth Carolina.

No. 199.

Supreme Court of North Carolina.

April 10, 1968.

Poisson & Barnhill by L. J. Poisson, Jr., Wilmington, for defendant appellants.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Parks H. Icenhour, and Rountree & Clark by George Rountree, III, Wilmington, for plaintiff appellee.

PARKER, Chief Justice.

Defendants have not excepted to any findings of fact except the finding of fact that a continuation of the diving and salvage operation of the defendants will result in irreparable loss and damage to the State of North Carolina. A number of facts were stipulated by the parties. The parties stipulated in substance that all the hulks or wrecks of the vessels herein involved, together with all the property in and upon them, 'lie in the Atlantic Ocean, below the surface of the water at low tide, within a marine league seawardly from the Coast of North Carolina, offshore from the waters of Pender, New Hanover and Brunswick Counties, North Carolina.' Under this stipulation of fact, all the hulks or wrecks herein involved, together with all the property in and upon them, lie within the territorial boundaries of the State of North Carolina and have substantially so lain since they were sunk, except the Spanish sailing vessel Fortune which, with its cargo therein, was sunk in the early 1700's and has substantially lain in the same position since it was sunk.

G.S. § 141--6(a) and (b) read:

'(a) The Constitution of the State of North Carolina, adopted in 1868, having provided in article I, § 34, that the 'limits and boundaries of the State shall be and remain as they now are,' and the eastern limit and boundary of the State of North Carolina on the Atlantic seaboard having always been, since the Treaty of Peace with Great Britain in 1783 and the Declaration of Independence of July 4th, 1776, one marine league eastward from the Atlantic seashore, measured from the extreme low water mark, the eastern boundary of the State of North Carolina is hereby declared to be fixed as it has always been at one marine league eastward from the seashore of the Atlantic Ocean bordering the State of North Carolina, measured from the extreme low water mark of the Atlantic Ocean seashore aforesaid.

'(b) The State of North Carolina shall continue as it always has to exercise jurisdiction over the territory within the littoral waters and ownership of the lands under the same within the boundaries of the State, subject only to the jurisdiction of the federal government over navigation within such territorial waters.'

See North Carolina Constitution of 1776, Declaration of Rights § 25.

By statute the United States has in effect quitclaimed and confirmed the ownership of the State of North Carolina in the lands beneath the Atlantic Ocean within a marine league seaward from the eastern boundary of the State. 43 U.S.C.A. § 1312 reads:

'The seaward boundary of each original coastal State is approved and confirmed as a line three geographical miles distant from its coast line or, in the case of the Great Lakes, to the international boundary. Any State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line, or to the international boundaries of the United States in the Great Lakes or any other body of water traversed by such boundaries. Any claim heretofore or hereafter asserted either by constitutional provision, statute, or otherwise, indicating the intent of a State so to extend its boundaries is approved and confirmed, without prejudice to its claim, if any it has, that its boundaries extend beyond that line. Nothing in this section is to be construed as questioning or in any manner prejudicing the existence of any State's seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress. May 22, 1953, c. 65, Title II, § 4, 67 Stat. 31.'

A marine league is a distance which is the equivalent of three geographical miles. Ballentine's Law Dictionary (2nd Ed. 1948).

Defendants assign as error that Judge Mintz in answering the issue set forth above 'yes' held in effect that the plaintiff is the owner and entitled to the immediate possession of the sunken hulks and all property thereon or therein, including those hulks and artifacts specifically described in the complaint, lying in the Atlantic Ocean seaward within one marine league of the North Carolina coast, as alleged in the complaint. Defendants also assign as error the court's conclusion of law that the State of North Carolina has never abandoned the wrecks of the S/S Modern Greece, the S/S Phantom, the S/S Ranger and the Spanish privateer Fortune, and the articles contained therein, nor the wrecks of any other ships, lying in the Atlantic Ocean within the territorial waters of the State of North Carolina and within a marine league seaward from the Coast of North Carolina.

It is well-settled law that the owners of sunken or derelict vessels or their contents may abandon them so effectively as to divest title and ownership. Thompson v. United States, 62 Ct.Cl. 516; Eads v. Brazelton, 22 Ark. 499, 79 Am.Dec. 88; Howard v. Sharlin (Fla.), 61 So.2d 181; State by and through Ervin v. Massachusetts Company (Fla.), 95 So.2d 902, 63 A.L.R.2d 1360; Creevy v. Breedlove, 12 La.Ann. 745; Steinbraker v. Crouse, 169 Md. 453, 182 A. 448; Deklyn v. Davis, 1 Hopk.Ch. 135, 2 N.Y.Ch. 369; Williamson v. Mennella, 248 App.Div. 911, 290 N.Y.S. 645; Annot., 63 A.L.R.2d 1369, 1372.

'A vessel, cargo, or other property is derelict in the maritime sense of the word when it is abandoned without hope of recovery or without intention of returning.' 48 Am.Jur., Shipping § 647 at p. 451. It is manifest from the stipulations and the findings of fact made by the judge, which findings of fact relevant here are unchallenged, that the vessels herein involved were derelicts, and that the one-time owners of these submerged vessels and their contents have abandoned them so effectively that they, and each one of them, have divested themselves of any title and ownership.

Defendants contend the State of North Carolina has no property rights in these sunken vessels or their cargoes either under the early English common law or under the subsequent law of the State of North Carolina prior to the enactment of Chapter 533, Session Laws of 1967 (now codified as G.S. § 121--22 through G.S. § 121--28). Defendants in their brief contend in essence that these vessels and their cargoes were abandoned by their former owners, and that ownership has vested in defendants because they have lawfully appropriated them to their own use and reduced them to possession with the requisite intent to become the owners.

We will first consider the question of the right of the sovereign at common law to goods found wrecked or derelict at sea, regardless of whether they were 'cast upon the land or shore.'

The Supreme Court of Florida, En banc, dealt with this precise question in State by and through Ervin v. Massachusetts Company (Fla.), 95 So.2d 902, 63 A.L.R.2d 1360. In a very scholarly opinion, Justice Roberts said for the Court:

'The rule is stated in Carver's Carriage of Goods by Sea, 9th Ed., p. 580, as follows:

"So where a ship is derelict, or where goods have been thrown out of a vessel to lighten her (jetsam), or have been sunk but tied to some floating mark to show the place (lagan) or have been washed out of the ship and remain afloat (flotsam), in those cases, also, the property belongs to the Crown in its office of Admiralty, unless the owner establishes his claim to it.'

'This statement is supported by the English cases on the subject. '* * * the common law gave as well wreck, Jetsam, flotsam, and Lagan upon the sea, as estray * * *, treasure-trove, and the like to the King, because by the rule of the common law, when no man can claim property in any goods, the King shall have them by his prerogative.' Sir Henry Constable's Case, 5 Coke's Report 108b, 77 Eng.Repr. 218, 223. 'By the general law, all goods found afloat and derelict on the high seas belong, as droits, to the Crown, in its office of Admiralty.' The King v. Forty-Nine Casks of Brandy (1836) 3 Hagg.Adm. 292, 166 Eng.Repr. 414. A wrecked vessel and its cargo, lying at the bottom of the sea, is a 'derelict' which, if not claimed by the owner, at the end of a year, becomes a Droit of the Crown in its office of Admiralty. H.M.S. Thetis (1835) 3 Hagg. 228, 166 Eng.Repr. 390, 391. See also the Tubantia (1924) P. 78, 91; The King v. Two Casks of Tallow (1837) 3 Hagg.Adm. 292, 166 Eng.Repr. 414; and The Aquila (1798) 1 C.Rob. 37, 165 Eng.Repr. 87, 91.

'The difficulty which the Chancellor--and apparently the parties, also--has had with this question stems from a misunderstanding of the meaning and effect of the two English statutes cited above. The statute of 3 Edward I, Ch. 4, (enacted in 1275) provides that:

"Concerning Wrecks of the Sea, it is agreed, that where a Man, a Dog, or a Cat escape quick out of the Ship, that such Ship nor Barge, nor any Thing within them, shall be adjudged Wreck; (2) but the goods shall be saved and kept by View of the Sheriff, Coroner or the King's Bailiff, and delivered into the Hands of such as are of the Crown, where the Goods were found; (3) so that if any sue for those Goods, and after prove that they were his,...