90 S.E. 937 | N.C. | 1916
The case was before this Court at Spring Term, 1915, and is reported in 169 N.C. at p. 1. We then granted a new trial. At the last trial the jury returned the following verdict:
1. Are Way Bros. the owners, in the actual occupation, and entitled to the possession of Lot No. 8 in said Block No. 7 in the plan of Morehead City? Answer: "Yes; by color of title more than seven years."
2. Was Lot No. 8 in said Block No. 7 filled up above high-water mark and thus reclaimed by Way Bros. and those under whom they claim prior to the filling in of the other lots, including 6 and 7, by the Government dredge? Answer: "Yes."
3. What amount and at what date did Way Bros. pay the city of Morehead on account of the construction of the bulkhead on the south side of Evans Street? Answer: "$1,000, on the 1st day of 1911."
4. What amount and at what date did the Atlantic and North Carolina Railroad Company pay the city of Morehead on account of the construction of the bulkhead on the south side of Evans Street? Answer: "$3,700, on 2 October, 1911."
5. For what length of time did Way Bros., and those under whom they claim, maintain and use a pier about 6 feet wide across Lots 6 and 7 to deep water in Bogue Sound? Answer: "Twenty years of more."
6. Is the land described in the entry which includes Lots 6 and 7 vacant and subject to entry and grant by the State? Answer: "Yes."
Judgment was entered for the defendant upon the verdict, and the plaintiff appealed.
The questions raised in this case are of great importance, but we think they have been decided by this Court in Land Co. v.Hotel Co.,
The ownership of the shore and the right acquired by entry and grant under the statute (Revisal, sec. 1696) are inseparable, so that a conveyance of any part of the shore would carry with it the privilege or easement of using the navigable waters in front of it and the submerged soil for the specific purpose of building wharves along the line of deep water. This was the very ground and reason of the decision in Land Co. v.Hotel Co., supra. It was there contended by the plaintiff that under the Morehead and Arendell grant and mesne conveyances it had acquired a separate and independent title to the bed of the sound, and the tidal waters covering it, which lay immediately in front of the shore owned and occupied by the hotel company, and upon which bed of the sound the latter company had built a gangway or wharf and bathhouses and was then occupying and using the same. With respect to this contention in that case, the Court held: "We are of the opinion that the grant to Morehead and Arendell of Square 83 operated to give them an exclusive right or easement therein, as riparian owners and proprietors, to erect wharves, etc.; that when they ceased to be the owners of the land, by conveyance to the Shepherd's Point Land Company, such easement passed as appurtenant thereto, and that it has passed by the several conveyances of the land as appurtenant to Square No. 1; that such easement passed to the defendant company, and the plaintiff has no such title to the soil under the navigable water as entitled it to maintain this action."
The Court was then considering the question as to what rights passed to the grantee under the entry which had been laid and the grant which had issued thereon, under the authority given by the Acts of 1854, ch. 21 (Revisal, sec. 1696), and concluded, after a full and learned review of the authorities by Justice Connor, that there was no absolute and independent ownership of the bed of the sound conferred by the statute, but only an easement to use the same solely for the purpose indicated therein. The primary and even the exclusive intention of the statute was to grant submerged lands, and not dry lands, for the sole purpose of building wharves. Of course, the grantee had the implied power to do all such things and make such use of this land as would effectuate this purpose, but he was not to own the land unrestrictedly as in the case of other lands granted by the State which are not so submerged. If the right given by the statute, which is to be perfected by an entry and grant, is only, in legal effect, and easement, we are unable to see why — when this (778) easement could no longer be enjoyed, as the submerged land had become dry land — it was not altogether extinguished. The statute manifestly contemplated that, in order to the continuance of the easement, the land should remain submerged except so far as it was necessary that *832
its condition should be changed for the enjoyment of the easement. InGregory v. Forbes,
In our former opinion it was said: "If the case should return to this Court, it may become necessary to decide more precisely what is the nature of the estate or interest which passed by the grant from the State; *833 but this will depend largely upon the facts then before us, as it may prove to be immaterial upon those facts whether it is an easement merely or an estate upon condition subsequent — a determinable or base fee. What we have said concerning that interest is sufficient to dispose of this appeal, without any more definite expression of opinion in regard to it. It is sufficient, for the present, to say that the judge was in error when he took the other view of it."
We are constrained by the precedents in this Court to hold that plaintiff acquired only an easement in the bed of the sound in front of its shore lots. The identical construction was plainly given to the statute (Revisal, sec. 1696), in Land Co. v. Hotel Co., supra, and as it is a rule of property, if for no other reason, we must follow it. The point was directly raised in that case and decided, and the ruling governs this case. The same meaning was adopted in other cases decided by this Court and cited in the opinion in Land Co. v. Hotel Co., supra, and especially Gregory v.Forbes, supra, and Holley v. Smith,
In the view taken by us of this case, it is unnecessary to consider the matters discussed in the brief or the other exceptions of the appellant, as our conclusion is that the State has granted only an easement in the bed of the sound, and as this has been changed to dry land by reclamation in the manner already described, the easement was destroyed, and the land, in its new form, belonged to the State, discharged of the easement, and, being vacant, was subject to entry. It results that there is no error in the judgment of the court.
No error.
ALLEN, J., dissents.
Cited: Ins. Co. v. Parmele,
(780)