State ex rel. Rhodes v. Simpson

• Decision Date: 09 November 1989
• Docket Number: No. 525PA88,525PA88
• Citation: 325 N.C. 514,385 S.E.2d 329
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina ex rel S. Thomas RHODES, Secretary, Department of Natural Resources and Community Development v. Vivian Anne SIMPSON.

Page 329

385 S.E.2d 329

325 N.C. 514

STATE of North Carolina ex rel S. Thomas RHODES, Secretary Department of Natural Resources and Community Development v. Vivian Anne SIMPSON.

No. 525PA88.

Supreme Court of North Carolina.

Nov. 9, 1989.

On appeal by plaintiff of a constitutional issue pursuant to N.C.G.S. § 7A-30(1) and on discretionary review pursuant to N.C.G.S. § 7A-31 of the decision of the Court of Appeals, affirming an order granting defendant a jury trial, entered by Tillery, J., on 25 June 1987 in Superior Court, Carteret County. State ex rel. Rhodes v. Simpson, 91 N.C.App. 517, 372 S.E.2d 312 (1988). Heard in the Supreme Court 11 September 1989.

Lacy H. Thornburg, Atty. Gen. by J. Allen Jernigan, Asst. Atty. Gen., Raleigh, for State-appellant.

Bennett, McConkey, Thompson, Marquardt & Wallace, P.A. by Thomas S. Bennett, Morehead City, for defendant-appellee.

Conservation Council of North Carolina by John D. Runkle, General Counsel, Chapel Hill, amicus curiae.

MEYER, Justice.

At issue is the right of a defendant to a jury trial in an action brought by the State to enforce wetland protection provisions of the Coastal Area Management Act of 1974 (CAMA), N.C.G.S. §§ 113A-100 to 113A-128 (1983 & Cum.Supp.1985), and the Dredge and Fill Act of 1969, N.C.G.S. § 113-229 (1983). The trial court granted defendant's demand for a jury trial over the State's objection. The Court of Appeals affirmed, construing only article I, section 25 of our state Constitution. The Court of Appeals held that this action constituted a controversy at law such as existed at the time of the adoption of the 1868 Constitution and that the action affects property, thus entitling defendant to a jury trial. On appeal, defendant argued solely that article I, section 25 entitled him to a jury trial, basing his reasoning on that of the Court of Appeals. We hold that CAMA and the Dredge and Fill Act are recent creations of the legislature such that the provisions of article I, section 25 of the state Constitution do not apply. Accordingly, we reverse.

The General Assembly adopted the Dredge and Fill Act in 1969 and CAMA in 1974 to protect valuable coastal resources that had gone unregulated previously. See N.C.G.S. § 113A-102 (1983). The Coastal Resources Commission in 15 NCAC 7H .0200 has designated coastal wetlands (marshland) as an area of environmental concern pursuant to N.C.G.S. § 113A-113(a) and (b)(1). Coastal wetlands receive the "highest priority" of protection, 15 NCAC 7H .0205(c) (1985), because "[w]ithout the marsh, the high productivity levels and complex food chains typically found in the estuaries could not be maintained," 15 NCAC 7H .0205(b) (1985). See Adams v. Dept. of N.E.R., 295 N.C. 683, 692-93, 249 S.E.2d 402, 407-08 (1978).

During a routine flight on 17 September 1985, Natural Resources and Community Development (NRCD) personnel observed a placement of fill materials on about five thousand square feet of property owned by defendant. Defendant's property is located in Carteret County near Stella, adjacent to Cales Creek, which is a tributary of the White Oak River. Saw grass (Cladium jamaicense ), bulrush (Scirpus spp.), salt grass (Distichlis spicata ) and cord grass (Spartina alterniflora ) vegetate the site. The presence of this vegetation in part defines "coastal wetlands" protected under the statute. N.C.G.S. § 113A-113(b)(1) (1983).

On 30 January 1986, NRCD served defendant with a notice of violation requiring her to cease and desist her fill activity and to restore the coastal wetlands destroyed by filling activity. Defendant refused to comply. In a follow-up notice, NRCD served a notice of continuing violation. This notice included notice of a civil assessment to the effect that "[e]ach day that the area goes unrestored will be considered a separate violation with separate assessments of up to $2500 to be levied on a per day basis." See N.C.G.S. § 113A-126(d)(1) and (2) (1983). Following defendant's continued refusal to restore the area, NRCD referred the matter to the Attorney General, who instituted this action.

The State alleged in a verified complaint that the defendant placed fill material on lands subject to regulation under the provisions of CAMA and the Dredge and Fill Act without first obtaining a permit. The State sought mandatory injunctive relief for the removal of the fill material. The State did not seek enforcement of the civil penalties.

Subsequent to the filing of her answer, defendant demanded trial by jury. By order filed 10 August 1987, Judge Tillery denied the State's motion to deny defendant's demand for a jury trial, which, in effect, granted a jury trial to defendant. The State appealed to the Court of Appeals, which consolidated this matter for hearing with State ex rel. Rhodes v. Gaskill, 91 N.C.App. 639, 372 S.E.2d 746 (1988), appeal dismissed per curiam as moot, 325 N.C. 424, 383 S.E.2d 923 (1989). The Court of Appeals affirmed the trial court's ruling in favor of defendant's demand for trial by jury. The State appealed as of right pursuant to N.C.G.S. § 7A-30(1) on the ground that the case involved a substantial question arising under the state Constitution. Because this case raised a substantial question under the North Carolina Constitution and because the case involves legal principles of major significance to the jurisprudence of this State, we also granted the State's petition for discretionary review.

We note as an initial matter that although this appeal is of an interlocutory order, it is properly before the Court. An interlocutory order that denies a motion to deny a demand for jury trial affects a substantial right and is immediately appealable. Faircloth v. Beard, 320 N.C. 505, 507, 358 S.E.2d 512, 514 (1987).

Article I, section 25 of the Constitution of 1970 (formerly article I, section 19 of the Constitution of 1868), provides:

In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.

This Court has construed the predecessor to section 25 to apply only to actions respecting property in which the right to jury trial existed either at common law or by statute at the time of the adoption of the 1868 Constitution. Railroad v. Parker, 105 N.C. 246, 11 S.E. 328 (1890). For causes of action created since 1868, the right to a jury trial depends upon statutory authority. Groves v. Ware, 182 N.C. 553, 558, 109 S.E. 568, 571 (1921). In the absence of statutory authority, there is no right to the trial of a case before a jury where the legislature created the cause of action after adoption of the 1868 Constitution. North Carolina State Bar v. Dumont, 304 N.C. 627, 641, 286 S.E.2d 89, 97 (1982).

The statutory scheme of CAMA envisions a permit process for projects such as defendant's, subject to review by a court sitting without a jury. Adams v. Dept. of N.E.R., 295 N.C. 683, 704, 249 S.E.2d 402, 414. CAMA provides for a trial by jury only where a party owning land affected by a final decision of the Coastal Resources Commission petitions the superior court alleging a taking. N.C.G.S. § 113A-123(b) (1983). There is no other statutory authority in CAMA nor in the Dredge and Fill Act granting a right to trial by jury.

Thus, the question before us is whether an action brought by the State to enjoin dredge and fill development of marshland by a private property owner existed at common law or by statute at the time of the adoption of the 1868 Constitution. Only if such an action existed at that time need we determine whether the remedy sought is one at law respecting property. See Kaperonis v. Highway Commission, 260 N.C. 587, 133 S.E.2d 464 (1963) (condemnation proceeding not a cause of action at common law); Belk's Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897 (1943) (dispute as to real estate tax valuation did not support right to jury trial at common law).

Our review of the cases suggests that prior to the legislative enactment of CAMA and the Dredge and Fill Act, a landowner had the unrestricted right at common law to dredge, fill and "reclaim" marshland on his property, even if the result was less beneficial to adjoining owners. Richardson v. Boston, 60 U.S. (19 How.) 263, 269, 15 L.Ed. 639, 642 (1857). See also Parmele v. Eaton, 240 N.C. 539, 83 S.E.2d 93 (1954); Kelly v. King, 225 N.C. 709, 36 S.E.2d 220 (1945); Perry v. Morgan, 219 N.C. 377, 14 S.E.2d 46 (1941); Insurance Co. v. Parmele, 214 N.C. 63, 197 S.E. 714 (1938). Absent the statutory authority conferred by CAMA and the Dredge and Fill Act, the State would not have had authority to seek an injunction of defendant's activity. Indeed, there would have been no cause of action and the State's suit would have been subject to dismissal at common law. We think it relevant to this point that until the adoption of CAMA and the Dredge and Fill Act, this State (like so many others) historically considered marshland a wasteland and generally encouraged its fill or drainage. See Earnhardt, Defining Navigable Waters and the Application of the Public Trust Doctrine in North Carolina: A History and Analysis, 49 N.C.L.Rev. 888, 888-92 (1971).

In holding that this action is one that "has always been accompanied by a right to trial by a jury," the Court of Appeals analogized this action to "an action for damage done to real estate" and to "the ancient action to abate a nuisance." Simpson, 91 N.C.App. at 519, 372 S.E.2d at 314. While intuitively appealing, closer reflection shows these analogies miss the mark.

Under the complaint as filed, the State would have had no action for trespass to land. The State did not allege title to or a possessory interest in the marshland. Without such an allegation, there is no right to sue in trespass. Matthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952). Assuming, without deciding, that the State had an action at...