Gwathmey v. STATE THROUGH DEPT. OF ENVIR.

The parties stipulated at trial that the lands claimed by each of the plaintiffs that comprise the subject of this litigation are marshlands located between the high and low water marks in'the Middle Sound area of New Hanover County. Title to the lands in question was conveyed by the State Board of Education (SBE) to the original purchasers of the marshlands between 1926 and 1945. Each of the deeds from the SBE to the original purchasers purports to convey a tract of “marshland” in the “Middle Sound” area to the purchasers, their “heirs and assigns in fee simple forever.” 1 The parties stipulated that each of *291 the plaintiffs could establish a chain of title linking their deeds to the source deeds from the SBE, with one exception. 2

In 1965, the General Assembly enacted N.C.G.S. § 113-205, which required individuals who claimed any part of the bed lying beneath navigable waters of any coastal county to register their claims with the Secretary of the Department of Natural Resources by 1 January 1970, or their claims would be null and void. The plaintiffs in this case, or their predecessors in interest, registered their claims in compliance with this statute. The parties stipulated that the plaintiffs’ submerged lands claims, as originally filed, included both marshlands lying between the mean high and mean low water marks of Middle Sound and lands beyond the mean low water mark that lie beneath the open waters of Middle Sound or Howe Creek. In 1987, the Submerged Lands Program, which was established to assess the validity of the claims of title previously registered pursuant to N.C.G.S. § 113-205, came under the administration of the Division of Marine Fisheries. In assessing the plaintiffs’ claims, the Division of Marine Fisheries issued resolution letters concluding that the plaintiffs had valid titles to the marshlands between the mean high and mean low water marks. However, pursuant to N.C.G.S. § 146-20.1(b), the resolution letters purporting to validate the plaintiffs’ titles to the marshlands were accompanied in each case by a purported reservation of public trust rights in those same marshlands. The plaintiffs responded by filing separate complaints against the State between 26 February 1991 and 31 May 1991, in Superior Court, New Hanover County, seeking a determination of the quality of their titles to the marshlands and other relief. The plaintiffs’ actions were consolidated by consent of all the parties following filing of the State’s answer.

The State made a motion in the Superior Court for summary judgment on the ground that waters covering the lands in question are subject to the ebb and flow of the tides and are, thus, navigable as a matter of law. The State argued that, as the waters are navigable in law, title to the land beneath those waters is governed by the public trust doctrine, and such land is not subject to fee simple ownership by the plaintiffs. Judge G.K. Butterfield, Jr., denied the motion in an order concluding that the test for determining navigability in law in North Carolina is “navigability in fact.”

*292 This case then came on for trial without a jury in the Superior Court, New Hanover County, before Judge James D. Llewellyn. The trial court entered judgment for the plaintiffs on 12 August 1993.

The trial court found from substantial evidence before it that at low tide no boat of any size could navigate in the marshlands claimed by the plaintiffs, except in dredged channels. The trial court also found that “as to the marshlands claimed by Plaintiffs, at high tide the area covered by marsh grass is not navigable.” Based upon its findings, the trial court concluded as a matter of law that no part of the marshlands on Middle Sound within the boundaries of the plaintiffs’ deeds is covered by waters navigable in fact; therefore, those lands are not covered by waters that are navigable in law. The trial court further found that the open waters of Howe Creek are navigable in fact based upon actual current and historical use and, therefore, concluded that those open waters are navigable as a matter of law. The trial court also concluded that no public trust rights existed in the marshlands claimed by the plaintiffs and that the SBE had conveyed fee simple title to those lands to the plaintiffs’ predecessors in title without reservation of any public trust rights. However, the trial court concluded that as to the land lying beneath the open waters of Howe Creek, the SBE had conveyed title subject to public trust rights. The trial court further concluded that “the ‘Declaration of Final Resolution’ recorded by the Defendant is a cloud upon each Plaintiff’s title and is ineffective as a recognition of any right, title or interest of the public in the marshlands.” The trial court then concluded that as the plaintiffs’ marshlands were not beneath waters navigable in law, N.C.G.S. § 146-20.1(b) is “invalid as it purports to impress upon the marshlands owned by Plaintiffs public trust rights which did not exist in said lands at the time they were conveyed to Plaintiffs’ predecessors in title.”

Based upon its findings and conclusions, the trial court ordered, adjudged, and decreed that the plaintiffs were owners in fee simple absolute without any reservation of public trust rights of the “certain tract of marshlands described” in each of their deeds. With regard to the claims of the plaintiffs Richard and Gwendolyn Gwathmey, however, the trial court adjudged and decreed that “those areas of deeded bottom lying beneath the open waters of Howe Creek and within the boundaries of Plaintiffs’ [Gwathmey] deed are owned in fee simple subject to the public trust.”

*293 The defendant State of North Carolina gave notice of appeal. On 7 April 1994, this Court allowed the defendant’s petition for discretionary review prior to a determination by the Court of Appeals.

Before addressing the specific issues raised on this appeal, we will briefly discuss the public trust doctrine and the operation of the entry laws in North Carolina. A brief introductory review of thése two areas of the law at this point will facilitate an understanding of the issues raised on this appeal.

This Court has long recognized that after the Revolutionary War, the State became the owner of lands beneath navigable waters but that the General Assembly has the power to dispose of such lands if it does so expressly by special grant. E.g., Shepard’s Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 524, 44 S.E. 39, 41 (1903). However, “[l]ooming over any discussion of the ownership of estuarine marshes is the ‘public trust’ doctrine — a tool for judicial review of state action affecting State-owned submerged land underlying navigable waters, including estuarine marshland, and a concept embracing asserted inherent public rights in these lands and waters.” Monica Kivel Kalo & Joseph J. Kalo, The Battle to Preserve North Carolina’s Estuarine Marshes: The 1985 Legislation, Private Claims to Estuarine Marshes, Denial of Permits to Fill, and the Public Trust, 64 N.C.L. Rev. 565, 572 (1986) [hereinafter Battle to Preserve N.C.’s Estuarine Marshes].

In Tatum v. Sawyer, 9 N.C. 226 (1822), this Court recognized the importance of navigable waters as common highways and held: “Lands covered by navigable waters are not subject to entry under the entry law of 1777, not by any express prohibition in that act, but, being necessary for public purposes as common highways for the convenience of all, they are fairly presumed not to have been within the intention of the Legislature.” Id. at 229. Thus, this Court has recognized the public interests inherent in navigable waters and qualified the State’s ability to part with title to lands submerged by navigable waters with a presumption that legislative enactments do not indicate a legislative intent to authorize the conveyance of lands beneath navigable waters. Atlantic & N.C. R.R. Co. v. Way, 172 N.C. 774, 776-78, 90 S.E. 937, 938-40 (1916). The practical significance of this presumption under the public trust doctrine is that it can operate to invalidate claims to lands submerged by navigable waters. The issue of navigability is controlling because the public trust doctrine is not an issue in cases where the land involved is above water or where *294 the body of water regularly covering the land involved is not navigable in law. The public trust doctrine is discussed in more detail at other points in this opinion where we deal directly with the assignments of error.

This Court’s discussions of navigability have arisen most often in cases where the parties claimed title to contested lands under grants obtained pursuant to the general entry laws. In 1777, the General Assembly enacted the entry laws, 3 also known as the “general entry laws.” These laws established a system whereby the people of North Carolina could acquire the State’s unappropriated vacant lands. The entry laws provided for the election of “entry-takers” and surveyors in every county. An individual who wished to acquire State land was first required to pay the statutory amount set for the quantity of land purchased in addition to the fees authorized by the laws. Subsequently, the surveyor was required to enter the lands claimed and survey them. The entry laws also provided that if part of the survey was made on any navigable water, the water was to form one boundary of the land surveyed. The law prescribed the manner in which the individual received a grant from the State for the land surveyed and in which that grant would be registered in the county in which the land was located.

By an assignment of error, defendant, the State of North Carolina, contends that the trial court erred in concluding that no public trust rights exist in the lands claimed by the plaintiffs. The State says this is so because those lands were not covered by waters “navigable in fact.” More specifically, the State contends that the proper test for determining navigability in law where tidal waters are concerned is the “lunar tides” test, also known as the “ebb and flow” test. Under this test, “navigable waters are distinguished from others, by the ebbing and flowing of the tides.” Wilson v. Forbes, 13 N.C. 30, 34 (1828) (Henderson, J.). We do not agree.

The evidence adduced at trial tended to show that the marshlands claimed by the plaintiffs are located in the Middle Sound area. The waters of Middle Sound are subject to the ebb and flow of the lunar tide. The marshlands in question are covered by the waters of the sound at certain stages of the tides. The depth of the water over any specific portion of the marshlands claimed by the plaintiffs varies *295 according to the level of the tide in the sound. The State argues that because the marshlands are covered at regular intervals by waters subject to the ebb and flow of the tides, they are covered by navigable waters under the lunar tides test and are not subject to private appropriation. Based on an extensive review of the law of this State regarding the test for “navigability in law” as that term applies to the public trust doctrine, we conclude that the State’s argument must fail because it is premised on the applicability of the lunar tides test.

Under the common law as applied in England, the navigability of waters was determined by whether they were subject to the ebb and flow of the tides. This common law rule “developed from the fact that England does not have to any great extent nontidal waters which are navigable.” Home Real Estate Loan & Ins. Co. v. Parmele, 214 N.C. 63, 68, 197 S.E. 714, 717 (1938).

In one of this Court’s earliest decisions dealing with the test to be applied for determining navigability in law, however, we expressly stated:

It is clear that by the [lunar tides] rule adopted in England, navigable waters are distinguished from others, by the ebbing and flowing of the tides. But this rule is entirely inapplicable to our situation, arising both from the great length of our rivers, extending far into the interior, and the sand-bars and other obstructions at their mouths. By that rule Albemarle and Pamlico sounds, which are inland seas, would not be deemed navigable waters, and would be the subject of private property.

Wilson v. Forbes, 13 N.C. at 34-35. Justice Hall concurred in a separate opinion, stating:

I think that part [the lunar tides test] of the English law is not applicable to the waters and streams of this State. But few of them could be marked by such a distinction. There can be no essential difference for the purposes of navigation, whether the water be salt or fresh, or whether the tides regularly flow and ebb or not. And of this opinion the legislature seems to have been, when they passed the [general entry laws of 1715 and 1777].

Id. at 38 (Hall, J.) (emphasis added).

N.C.G.S. § 4-1 provides:

All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not *296 destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.

N.C.G.S. § 4-1 (1986). The “common law” referred to in N.C.G.S. § 4-1 has been held to be the common law of England as of the date of the signing of the American Declaration of Independence. State v. Vance, 328 N.C. 613, 403 S.E.2d 495 (1991); Steelman v. City of New Bern, 279 N.C. 589, 184 S.E.2d 239 (1971). In State ex rel. Bruton v. Flying “W” Enters., 273 N.C. 399, 412, 160 S.E.2d 482, 491 (1968), we stated that the term “common law” as used in the statute “refers to the common law of England and not of any particular state.” Although technically not erroneous, that statement is incomplete and may be misleading. At least after 1715, the common law of England was applicable in North Carolina only to the extent it was deemed “compatible with our way of living.” State v. Willis, 255 N.C. 473, 474, 121 S.E.2d 854, 854 (1961); see also State v. Lackey, 271 N.C. 171, 155 S.E.2d 465 (1967). Further, the express wording of N.C.G.S. § 4-1 makes it clear that only those parts of the English common law which had been “in force and use” in North Carolina and which were not contrary to the freedom and independence of North Carolina are to be applied. Thus, the statement from Bruton quoted above is correct only if it is understood to mean that the “common law” to be applied in North Carolina is the common law of England to the extent it was in force and use within this State at the time of the Declaration of Independence; is not otherwise contrary to the independence of this State or the form of government established therefor; and is not abrogated, repealed, or obsolete. N.C.G.S. § 4-1. Further, much of the common law that is in force by virtue of N.C.G.S. § 4-1 may be modified or repealed by the General Assembly, except that any parts of the common law which are incorporated in our Constitution may be modified only by proper constitutional amendment. State v. Mitchell, 202 N.C. 439, 163 S.E. 581 (1932).

In Wilson, this Court made it clear that the lunar tides test had never been part of the English common law applied in this State before or after the Revolution. Wilson, 13 N.C. 30. Therefore, it is not a part of the common law to be applied in North Carolina. Additionally, we indicated in Wilson that the lunar tides test was “obsolete,” as it was inapplicable to the conditions of the waters within this State. Id. For both of these reasons, the lunar tides test is *297 not a part of the common law as it applies in North Carolina. See N.C.G.S. § 4-1.

In Collins v. Benbury, 25 N.C. 277 (1842), this Court emphasized that “whether there was any tide or not in the [Albemarle] Sound, when this patent issued, we do not think material; for we concur in the opinion of his Honor that this is ‘a navigable water,’ in the sense of our [entry] statutes.” Id. at 282. Thus, this Court reaffirmed its earlier conclusion in Wilson that the lunar tides test does not control when determining the navigability of waters in this State for purposes of applying the public trust doctrine.

There are two cases in which this Court erroneously applied the lunar tides test to determine the navigability in law of waters of this State. In the first, Hatfield v. Grimstead, 29 N.C. 139 (1846), the plaintiff’s grant from the State included land covered by the waters of Currituck Sound near Currituck Inlet. Currituck Inlet had closed prior to the plaintiff’s obtaining title from the State in 1839. A revisal of the general entry laws in 1836 left out the language in earlier versions of those statutes which had required that the water form one of the boundaries of property conveyed under the entry laws and lying along navigable water. 4 From this omission, this Court decided in Hatfield that the navigability of the water involved in that case must be determined by the English common law lunar tides test. The Court concluded that the plaintiff held valid title to the submerged lands in that case because, under the English common law, only waters affected by the ebb and flow of the tides were navigable. Since the plaintiff’s land was not affected by the ebb and flow of the tides because of the closing of the inlet, this Court concluded that the entry laws in effect at the time of the grant did not proscribe the plaintiff’s grant.

Assuming arguendo that the omission of the language in question from the revised entry laws concerning boundaries of lands on navigable bodies of water required that this Court look to the common law for its decision in Hatfield, it nevertheless was improper to apply the lunar tides test in that case. As discussed previously, this Court already had unequivocally indicated that the lunar tides test had never been a part of the common law to be applied for determining navigability in North Carolina. Wilson, 13 N.C. 30. Therefore, the *298 application of that test in Hatfield was error. In light of the foregoing, we expressly disavow the language in this Court’s opinion in Hatfield to the extent it indicates that the lunar tides test was ever a part of the common law as applied in North Carolina.

In Resort Dev. Co. v. Parmele, 235 N.C. 689, 71 S.E.2d 474 (1952), the source of title for a portion of the disputed land originated in an entry law grant from the State in 1841. In that case, we held that the lunar tides test of the English common law must be applied to determine whether the waters covering that portion of the disputed land represented by the 1841 grant were navigable. This part of our decision was based on our prior erroneous interpretation of the law in Hatfield and also is hereby expressly disavowed.

Next, although the State has acknowledged this Court’s clear rejection of the English lunar tides test in Wilson and in Collins, the State nevertheless argues that our summary of North Carolina law in State v. Glen, 52 N.C. 321 (1859), established a dual test for determining navigability in law in North Carolina. Its argument is based on the following language from Glen:

1. All the bays and inlets on our coast, where the tide from the sea ebbs and flows, and all other waters, whether sounds, rivers, or creeks, which can be navigated by sea vessels, are called navigable, in a technical sense, are altogether publici juris, and the soil under them cannot be entered and a grant taken for it under the entry law. In them, too, the right of fishing is free. Collins v. Benbury, 25 N.C.[]277, and the other cases to which we have referred on this point.

Glen, 52 N.C. at 333 (emphasis added). The State essentially argues that by using the words “where the sea ebbs and flows” to describe “[a]ll the bays and inlets on our coast,” this Court indicated in Glen that the lunar tides test was a proper test for determining navigability, but not the sole and exclusive test. The State reads the remainder of the italicized language in the above quotation to mean that only the issue of the navigability of waters which are unaffected by the lunar tides is to be determined by whether they are navigable in fact. Accordingly, the State would have us hold that waters which meet either the test of navigability in fact or the lunar tides test are navigable in law. However, we are convinced that the language in Glen that refers to the ebb and flow of the tides is merely a phrase descriptive of all of the bays and inlets of the open ocean along our coast and has no independent legal significance.

*299 The portion of the Glen opinion from which the above quotation was taken is but a summarization of cases previously reviewed in that opinion. Earlier in Glen, this Court stated that in England, navigability in law was ascertained by the ebb and flow of the tide. Id. at 325. We then said that the lunar tides or ebb and flow test

has been held by our courts not to be applicable to the watercourses of North Carolina, and has been long since repudiated. We hold that any waters, whether sounds, bays, rivers, or creeks, which are wide enough and deep enough for the navigation of sea vessels, are navigable waters, the soil under which is not the subject of entry and grant under our entry law, and the rights of fishing in which are, under our common and statute law, open and common to all the citizens of the State.

Id. (emphasis added). Glen is not to be read to mean that there is a dual test for navigability which includes the lunar tides test when, in that opinion, this Court so clearly rejected the lunar tides test and expressly held that the test of navigability in fact controls in North Carolina. Additionally, in cases subsequent to this Court’s decision in Glen, the lunar tides test was clearly rejected as an anachronistic tool, inapplicable to North Carolina’s waters. See, e.g., Home Real Estate Loan & Ins. Co. v. Parmele, 214 N.C. 63, 197 S.E. 714; Staton v. Wimberly, 122 N.C. 107, 29 S.E. 63 (1898); State v. Eason, 114 N.C. 787, 19 S.E. 88 (1894).

This Court was required to further explain the navigability in fact test in three cases near the beginning of the twentieth century. State v. Twiford, 136 N.C. 603, 48 S.E. 586 (1904); State v. Baum, 128 N.C. 600, 38 S.E. 900 (1901); State v. Narrows Island Club, 100 N.C. 477, 5 S.E. 411 (1888). Each of those cases involved criminal prosecutions on indictments charging the defendants with obstructing public navigation. In each case, the evidence showed that the waters of the sound in question were frequently navigated by boats of varying sizes. The defendants argued that a right existed to obstruct travel over the waters involved because the land covered by those waters was privately owned in fee pursuant to general entry law grants from the State.

In Narrows Island Club, this Court essentially assumed arguendo that the defendant’s title to the land submerged by the water in question was valid. Narrows Island Club, 100 N.C. at 480, 5 S.E. at 412. In determining whether the public trust doctrine applied, the Court focused on the capacity of the waters for navigation by any “useful vessels” and concluded:

*300 Navigable waters are natural highways, so recognized by government and the people, and hence it seems to be accepted as a part of the common law of this country arising out of public necessity, convenience and common consent, that the public have the right to use rivers, lakes, sounds and parts of them, though not strictly public waters, if they be navigable, in fact, for the purposes of a highway and navigation, employed in travel, trade and commerce. Such waters are treated as publici juris, in so far as they may be properly used for such purposes, in their natural state. The public right arises only in case of their navigability. Whether they are navigable or not depends upon their capacity for substantial use as indicated.

Id. at 481, 5 S.E. at 412.

In State v. Baum, 128 N.C. 600, 38 S.E. 900, this Court again reviewed the development of the common law of navigability and noted that much of it was inconsistent and inapplicable to conditions in the United States. The Court went on to say:

The rule now most generally adopted, and that which seems best fitted to our own domestic conditions, is that all watercourses 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 watercourses, whether tidal or inland, that are in their natural condition capable of such use.

Id. at 604, 38 S.E. at 901. Thus, this Court reiterated its holding in Narrows Island Club that navigability in fact by useful vessels, including small craft used for pleasure, constitutes navigability in law.

In State v. Twiford, 136 N.C. 603, 48 S.E. 586, this Court reemphasized that “[i]f a stream is ‘navigable in fact... it is navigable in law.’ The capability of being used for purposes of trade and travel in the usual and ordinary modes is the test, and not the extent and manner of such use.” Id. at 606, 48 S.E. at 587 (citations omitted). By applying the foregoing test, we determined that the waters covering the land in question were navigable. Id. at 608, 48 S.E. at 588. As in Narrows Island Club and Baum, the basis for the defendants’ claim in Twiford that they had a right to obstruct the waters was an assertion of fee simple ownership of the underlying land free of public trust rights. In Narrows Island Club, we had explicitly found it unnecessary to decide whether the title to the underlying land was *301 affected by our determination that the waters were navigable. Significantly, we addressed this issue in Twiford. Our decision that the defendants had illegally obstructed the water in question in Twiford was based in part, if not entirely, on our conclusion that the land was not subject to entry and grant to a private party by the State under the general entry laws because it was covered by navigable waters. Id. at 607, 48 S.E. at 587.

The controlling law of navigability as it relates to the public trust doctrine in North Carolina is as follows: “ ‘If water is navigable for pleasure boating it must be regarded as navigable water, though no craft has ever been put upon it for the purpose of trade or agriculture. The purpose of navigation is not the subject of inquiry, but the fact of the capacity of the water for use in navigation.’ ” Id. at 608-09, 48 S.E. at 588 (quoting Attorney General v. Woods, 108 Mass. 436, 440 (1871)). In other words, if a body of water in its natural condition can be navigated by watercraft, it is navigable in fact and, therefore, navigable in law, even if it has not been used for such purpose. Lands lying beneath such waters that are navigable in law are the subject of the public trust doctrine. For the foregoing reasons, the State’s assignment of error is without merit.

By another assignment of error, the State contends that the SBE was never vested with title to the marshlands free of public trust rights and, as a result, could not convey such title to the plaintiffs’ predecessors in interest.

The State’s first argument in support of this assignment of error is based on the assumption that the lands at issue are submerged by navigable waters governed by the public trust doctrine and that, as a result; the legislature could do nothing which would impair public trust interests in them. It is true that lands submerged by waters which are determined to be navigable in law are subject to the public trust doctrine. However, the assumption that such lands may not be conveyed by the General Assembly without reservation of public trust rights is incorrect.

The State’s argument that the public trust doctrine prevents the State from conveying lands beneath navigable waters without reserving public trust rights is based principally on two cases. The first is Shepard’s Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 44 S.E. 39, which involved competing claims to waterfront property in Morehead City based on general entry law grants. The defendant’s property consisted of dry land on the shore of Bogue Sound. The land claimed by *302 the plaintiff was submerged by the navigable waters of Bogue Sound and was located directly in front of the defendant’s waterfront property. Before reaching its ultimate conclusion, this Court quoted the following language from a United States Supreme Court case: “ ‘The control of the State for the purposes of the [public] trust can never be lost except as to such parcels as [1] are used in promoting the interests of the public therein or [2] can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.’ ” Id. at 527, 44 S.E. at 42 (quoting Illinois Cent. R. Co. v. Illinois, 146 U.S. 387, 453, 36 L. Ed. 1018, 1042 (1892), aff’d sub nom. United States v. Illinois Cent. R. Co., 154 U.S. 225, 38 L. Ed. 971 (1894)). 5

The State contends that the validity of any conveyance of land encumbered with the public trust must be judged with reference to the principles enunciated in Shepard’s Point Land Co. That case is not controlling. The quoted statement was obiter dictum in Shepard’s Point Land Co. because in that case the plaintiff’s claim of title was based on the general entry laws. This Court based its decision to reject the plaintiff’s claim on the well-established principle that lands submerged by navigable waters are not subject to entry under the general entry laws. We reject the above statement in Shepard’s Point Land Co. to the extent that it implies that the public trust doctrine completely prohibits the General Assemb