Swan Island Club v. Yarbrough

• Decision Date: 06 January 1954
• Docket Number: No. 6698.,6698.
• Citation: 209 F.2d 698
• Parties: SWAN ISLAND CLUB, Inc. v. YARBROUGH et al.
• Court: U.S. Court of Appeals — Fourth Circuit

209 F.2d 698 (1954)

SWAN ISLAND CLUB, Inc. v. YARBROUGH et al.

No. 6698.

United States Court of Appeals, Fourth Circuit.

Argued November 24, 1953.

Decided January 6, 1954.

W. B. Rodman, Plymouth, N. C., and John H. Hall, Elizabeth City, N. C. (A. B. Stapleton, Providence, R. I., on brief) for appellant.

John B. McMullan, Washington, N. C., and E. K. Powe, Durham, N. C., for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal by plaintiff, the Swan Island Club, Inc., from a decree for defendants in three cases brought to obtain injunctions against alleged trespasses on the property of plaintiff. The acts complained of consisted of the maintenance of duck blinds in the navigable waters of Currituck Sound within an area which plaintiff claimed to own under grants from the State of North Carolina. The District Judge found that the duck blinds were located within the navigable waters of Currituck Sound and that they were not shown to have been located within the boundaries of grants made at a time when it was contended that land under navigable waters could be validly granted. He held that a state court proceeding under the Torrens Land Law of North Carolina, upon which plaintiff relied, did not have the effect of vesting title in plaintiff to lands covered by navigable waters, and that, even if plaintiff had title to such land, it held same subject to the hunting and fishing rights of the public as well as the public right of navigation. The facts are fully found and the applicable law ably discussed in the opinion of the District Judge. See 114 F.Supp. 95.

Briefly stated, the facts are that the plaintiff owns 9,236 acres of land, some of it covered by water, lying in Currituck County, North Carolina between the Atlantic Ocean and Currituck Sound. Of this amount only a comparatively small portion was granted between 1838 and 1847, when it is contended that there was no legal impediment to the granting of lands under navigable waters. See Hatfield v. Grimstead, 29 N.C. 139. The remainder of the lands, a part of which was covered by navigable waters, was embraced in grants issued in other years, when there is no question but that land covered by navigable waters could not be validly granted. While there was some testimony to the effect that the alleged trespasses occurred within the boundaries of the grants made between 1838 and 1847, the trial judge held, and we think correctly, that those grants had not been properly located and that he could not find that the alleged trespasses occurred within their boundaries. We clearly would not be justified on the evidence before us in disturbing his findings in this regard.

The plaintiff places its chief reliance in a judgment entered in a Torrens Land Act proceeding conducted with respect to its lands in the year 1927. Under this proceeding plaintiff obtained a judgment in rem as to the validity of its title to all of the 9,236 acres of land claimed by it, 3,051 acres of which is shoal land in Currituck Sound in which are channels of considerable depth that are used for the purposes of navigation. It is admitted that the trespasses complained of occurred within the boundaries of the lands embraced within the judgment obtained in the Torrens proceeding.

We agree with the District Judge that the judgment in the Torrens proceeding could not have the effect of vesting in plaintiff title to lands covered by navigable waters. It is the law of North Carolina, as it is of a majority of the states where the question has been raised, that the title to lands under navigable waters is held by the state in 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. Atlantic Hotel, 132 N.C. 517, 44 S.E. 39, 61 L.R.A. 937; State v. Baum, 128 N.C. 600, 38 S.E. 900; State v. Narrows Island Club, 100 N.C. 477, 481, 5 S.E. 411-412, 6 Am.St. Rep. 618; notes 23 A.L.R. pp. 765-773, 791-794, 112 A.L.R. pp. 1111-1112, 1117-1118. This rule, based on the theory that such lands are held by the state in trust for the public at large, was well stated by Mr. Justice Field in Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 in a passage quoted with approval by the Supreme Court of North Carolina, speaking through the late Judge Henry G. Connor, in Shepard's Point Land Co. v. Atlantic Hotel, supra 132 N.C. 517, 44 S.E. 42, as follows:

"`The interest of the people in the navigation of the waters and in commerce over them may be improved in various instances by the erection of wharves, docks, and piers therein, for which purpose the state may grant parcels of the submerged land, and, so long as their disposition is made for such purpose, no valid objection can be made to the grants. It is grants of parcels of land under navigable waters that may afford foundation for wharves, piers, docks, and other structures in the aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power, consistently with the trust to the public, upon which such lands are held by the state. But that is a very different doctrine from the one which would sanction the abdication of the general control of the state over lands under the navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public. The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled. General language sometimes found in the opinions of the courts, expressive of absolute ownership and control by the state of lands under navigable waters, irrespective of any trust as to their use and disposition, must be read and construed with reference to the special facts of the particular case. A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of navigation and the use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, then it can abdicate its police powers in the administration of government and the preservation of the peace. So with trusts connected with public property or property of a special character, like lands under navigable waters, they cannot be placed entirely beyond the direction and control of the state. * * * We cannot, it is true, cite any authority where a grant of this kind has been held invalid, for we believe that no instance exists where the harbor of a great city and its commerce have been allowed to pass into the control of a private corporation. But the decisions are numerous which declare that such property is held by the

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