Swan Island Club v. White

• Decision Date: 11 August 1953
• Docket Number: 273 and 272.,No. 274,274
• Citation: 114 F. Supp. 95
• Parties: SWAN ISLAND CLUB, Inc. v. WHITE. SWAN ISLAND CLUB, Inc. v. BARNES. SWAN ISLAND CLUB, Inc. v. YARBROUGH.
• Court: U.S. District Court — Eastern District of North Carolina

114 F. Supp. 95

SWAN ISLAND CLUB, Inc. v. WHITE.

SWAN ISLAND CLUB, Inc. v. BARNES.

SWAN ISLAND CLUB, Inc. v. YARBROUGH.

Nos. 274, 273 and 272.

United States District Court E. D. North Carolina, Elizabeth City Division.

August 11, 1953.

COPYRIGHT MATERIAL OMITTED

John H. Hall, Elizabeth City, N. C., William B. Rodman, Jr., Washington, N. C., for plaintiff.

E. K. Powe, Durham, N. C., John B. McMullan, Elizabeth City, N. C., for defendants.

GILLIAM, District Judge.

Prior to a hearing upon the merits of these cases, consolidated for trial, a hearing was had upon return of temporary restraining orders theretofore issued whereby defendants had been enjoined from trespassing upon property in North Carolina adjoining Currituck Sound, claimed by plaintiff. Following such hearing the temporary restraining orders were dissolved pending a final decision of rights of parties as would appear from the evidence. At the time of such dissolution, the Court filed a memorandum which contains the following findings and conclusions, which are adopted as a part hereof:

"The particular trespass alleged—the facts with respect to it are admitted— consists of the placing of `stuck blinds' by defendants Yarbrough and Barnes, and a `float blind' by the defendant White, in the waters over the lands claimed by plaintiff for use by defendants in hunting and taking wild fowl and game. The `stuck blind' is actually attached to the land under water by stakes, while the `float blind' is maintained in place by weights resting on the bottom. In both cases the decoys are weighted to the bottom.

"There is no controversy as to the plaintiff's ownership of the high land within the area, and the defendants concede that they may not trespass thereon; the controversy involves only the question of defendants' right, along with the general public, to make use of the water over the shoal lands claimed by plaintiff for hunting purposes, even though there results a technical trespass upon the land below.

"The waters with which we are concerned are actually a part of Currituck Sound which is a navigable body of water. These waters over the adjoining shoal lands, even though of shallow depth, though not useable for navigation by sea vessels or any crafts other than those with flat bottoms, and even though at low tide some of the land thereunder may not be entirely covered by water, according to my view are navigable waters under the prevailing modern view. The defendants depend upon two alternative positions, (1) that plaintiff has failed to prove title to the land below these navigable waters, and (2) that even if title to the submerged land be conceded they, as well as the public generally, have the right to hunt in the waters over it and, if necessary, commit a trifling trespass upon it.

"It will be conceded that plaintiff's title to these submerged lands must appear in order to justify the continuance of the restraining orders. To meet this prerequisite the plaintiff introduced a proceeding under the North Carolina Torrens Act, including a certificate of title thereunder. The process in that proceeding was duly and properly served upon the State as the Act requires. The defendants admit that the waters and submerged lands with which we are dealing lie within the bounds of the area described in the Torrens proceeding and the certificate of title.

"Upon this certificate of title and admissions of the defendants, the plaintiff asserts that its title to the locus in quo is conclusively established against all the world, and that the judgment in the proceeding may not be collaterally attacked. Defendants, while agreeing that, generally speaking, a judgment in a Torrens proceeding establishes title in the registered owner, free from any and all adverse claims, contend that it should not be interpreted as giving to such owner lands lying under navigable waters which, as they contend, are not and have not been, except during a period between 1836 and 1846, subject of private ownership within this State. The plaintiff has not connected its title to grants issued during this period, but depends entirely upon the conclusiveness of the judgment in the Torrens proceeding to establish its title. The defendants also contend that if the judgment in the Torrens proceeding is to be interpreted as establishing plaintiff's title to these submerged lands it is void and may be treated as a nullity in this respect, because in such respect the Court had no jurisdiction of the subject matter involved."

In addition to these findings, this memorandum will contain other findings which are based upon the evidence presented at the hearing upon the merits.

The question of whether the waters in the areas with which we are dealing are navigable waters under North Carolina law will be first considered, inasmuch as defendants concede that, if not, the plaintiff is entitled to the decision and the permanent injunction which it seeks. It is a question of fact.

The evidence, aided by matters of which the Court takes judicial notice, establishes, with respect to the character and nature of the land and waters with which we are dealing, these facts: The plaintiff claims ownership of 9,236 acres of land, some of it covered by water, lying between the Atlantic Ocean and Currituck Sound, 4,141 acres of beach land, 2,044 acres of marsh land, and 3,051 acres of shoal land; Currituck Sound, waters from which from time to time and at varying depths submerge the marsh and shoal lands, is a link of the inland waterway, which connects the several states along the Atlantic Coast and has its northern and southern termini in the Atlantic Ocean; the sound at the point in controversy at times, on account of northeast winds, is shallowed so that even flat bottomed boats cannot navigate without striking bottom, but at others the water is of sufficient depth to permit its use generally by such boats both for pleasure and commercial purposes; for many years these waters have been so used, as, for example, by the boat "Jubilee", which for several years used these waters on commercial trips to and from Norfolk, Virginia, carrying lumber, live stock, and other cargo; the only way to get from the mainland to plaintiff's club house is by boat and for years plaintiff's employees have navigated these waters in travelling to and from work; the depth of the water at the blinds set up by defendants is between two and three feet under normal conditions; water usually covers the shoal land which is intersected at irregular distances by small sloughs and channels.

Upon these findings, I adhere to the earlier finding that the waters at the points where the defendants located their blinds are navigable and so find as a fact. There would seem to be no serious dispute under present North Carolina law as to the navigability of Currituck Sound proper and the problem of determining the point at which navigability ceases would be a real one, just as it would be to determine the exact point at which the ocean itself becomes non-navigable, though definitely there must be such a point. The case is different with a river, which may be easily designated navigable to a point above its mouth and non-navigable beyond. While I do not rest my finding on such conclusion, it might be reasonably held as a practical solution that a navigable body of water such as Currituck Sound is navigable to the farthest reaches of water under normal conditions.

The present North Carolina law on this question is stated in State v. Baum, 128 N.C. 600, 604, 38 S.E. 900, 901, as follows: "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. That is, that the public have the right to the unobstructed navigation as a public highway, for all purposes of pleasure or profit, of all water courses, whether tidal or inland, that are in their natural condition capable of such use." In that case it appeared that a cove began on the eastern side of Currituck Sound and ran through the marsh from one-half to one mile and into the Sound again; that the water at middle tide measured two feet; that "it was used by all the people;" that boats from 18 to 20 feet long passed through it frequently. The defendant was charged with obstructing a navigable stream. Upon such facts, the trial Judge peremptorily instructed the jury that if they believed the evidence and found therefrom that the cove was navigable to find 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 plaintiff's position, there is no real dispute as to the navigability of these waters. In the brief filed, plaintiff's counsel make this statement: "Plaintiff does not dispute the right of defendants to use the water covering its land for navigation purposes."

We come then to two remaining questions: (1) Does the evidence by its preponderance establish title to the lands beneath the waters, and (2) if so, is the right to hunt over the waters incident to the right of navigation, or a right inherent in the public generally. The plaintiff agrees that if its title to the submerged lands is not established, it cannot succeed in the actions.

For title, plaintiff relies upon certain grants from the State and a judgment and certificate of title following a Torrens proceeding begun in 1927.

It is insisted by plaintiff that the judgment in the Torrens proceeding is conclusive upon defendants and cannot be attacked collaterally, and if this be true, title to the lands under the waters in question is definitely established since it is admitted by defendants that such lands lie within the boundaries of the lands described in such Torrens Proceeding....