Zimmerman Et Ux v. Robinson

• Decision Date: 20 February 1894
• Citation: 19 S.E. 102,114 N.C. 39
• Court: North Carolina Supreme Court
• Parties: ZIMMERMAN et ux. v. ROBINSON.

19 S.E. 102

114 N.C. 39

ZIMMERMAN et ux.

v.ROBINSON.

Supreme Court of North Carolina.

Feb. 20, 1894.

Estoppel by Deed.

As a wife may, with the consent of her husband, convey her land, (Const, art. 10, § 6,) such conveyance estops her from afterward acquiring, by grant from the state, riparian rights incident to the land conveyed, which could only be acquired by the owner.

Appeal from superior court, Pasquotank county; J. F. Graves, Judge.

Action in ejectment by N. R. Zimmerman and A. B. Zimmerman, his wife, against Charles H Robinson. There was judgment for defendant, and plaintiffs appeal. Affirmed.

Following is the plat of the premises in question used in the trial, and referred to in the opinion:

W. J. Griffin, for appellants.

Grandy & Aydlett, for appellee.

AVERY, J. The assignment of error Is in the refusal to give certain instructions embodied in the prayer of the plaintiff, and the substitution of a different charge in its stead. The court instructed the jury, at the request of the plaintiff, (1) that riparian rights are property incident to land abutting on navigable water, and cannot be conveyed without a conveyance of the land to which such rights are incident; (2) that lands covered by navigable water are subject to entry only by persons whose lands abut upon such waters, and can be entered only in straight lines extending from the front of the highland to the deep water. Subsequently, the jury were told, in effect, that it was their province to determine whether the defendant's land extended to the bank of the navigable stream, and, if it did, the grant to the feme plaintiff would be void.

The statement of the case on appeal is not so full or so clear as it could have been made. It was incumbent on the appellants to have submitted and insisted on a proper presentation of the facts upon which they relied to sustain their contention. It being left to the jury to determine whether the defendant's line extended to the bank of the navigable water, after they had been instructed, In effect, that the law would give to the riparian proprietor certain rights as an incident to his ownership of the shore, we infer that they found from the testimony (as they were warranted in finding) that the land of the feme plaintiff did not include the shore when the grant from the state was issued to her, on the 19th of July, 1890. The plaintiffs had, by deed with a covenant of warranty, conveyed, on the 1st day of September, 1880, a tract of land embracing the old dock, and extending south of it, "bounded on the east by Pasquotank river, south by said river and Tiber creek, north by old dock and Fearing street, west by the old Messenger lot, now occupied by N. R. Zimmerman and A. E. Zimmerman, 30 feet west from the old warehouse formerly occupied by William Shannon, " etc. If the jury determined that the line, A, B, was located 30 feet west of the warehouse, and extended on the south to the banks of Pasquotank river and Tiber creek, and on the east to Pasquotank river, then, wherever the shore of Pasquotank river may have been then located by accretions, the line of that deed would extend. Johnston v. Jones, 28 Myers, Fed. Dec. 725; Jones v. Johnston, 18 How. 150. If the line, A, B, extended to the margin of Tiber creek, and the boundary on the south and west was the...