Real Property – Riparian Rights – Man-Made Harbor – Easements – County – Public Access

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Newcomb v. County of Carteret. (Lawyers Weekly No. 10-07-1055, 45 pp.) (Sam Ervin IV, J.) Appealed from Carteret County Superior Court. (Russell J. Lanier Jr., J.) N.C. App. Click here to read the full text of the opinion.

Holding: Despite the fact that Marshallberg Harbor is man-made, since the harbor is navigable, the owners of the land along the harbor have riparian rights. However, those lands are subject to an easement granted to the defendant-county when the harbor was created.

We affirm the trial court’s summary judgment rulings as to riparian rights and the county’s easement. We dismiss the plaintiffs’ appeal of the trial court’s decision as to the prescriptive easement issue.

On May 17, 1950, Congress passed the River and Harbor Act of 1950, which authorized construction of an approach channel and harbor in Marshallberg in accordance with the project outlined in a report by the Army’s Chief Engineer, and printed in House Document No. 68.

One of the principal justifications for the project was the creation of a harbor to protect the boats in the area from “sustain[ing] considerable damage during storms in seeking refuge in the shallow waters of Sleepy Creek.” However, House Document No. 68 also indicated that the construction of the proposed harbor was justified for the purpose of inducing more commercial fishermen to visit the area, reducing the time needed to travel to the fishing grounds, providing for the centralized harboring of boats, and alleviating potential malarial conditions.

Various property owners and the defendant-county granted certain easements which facilitated the completion of the project. After obtaining the necessary easements, the Corps of Engineers constructed Marshallberg Harbor in the late 1950’s.

Individual defendants and other Marshallberg residents have built and maintained docks in the harbor and walkways around its perimeter which have been used by a variety of persons. In the early years after the construction of the harbor, some individuals sought and obtained approval from the surrounding landowners before building docks and similar facilities in the harbor. Subsequently, however, individuals constructed facilities in the harbor without obtaining permission from the surrounding landowners to do so.

On cross-motions for summary judgment, the trial court determined, “Plaintiffs are entitled to judgment as a matter of law declaring that they have riparian rights into Marshallberg Harbor as an incident of their ownership of properties abutting the Harbor, subject to the easements of the County as hereinafter set forth; …

“There are genuine issues of material fact as to the claim of the [individual] Defendants for a public prescriptive easement over the roadways, parking areas, and pathways on or across the lands of the Plaintiffs and other landowners who abut the harbor, and neither Plaintiffs nor Defendants are entitled to judgment as a matter of law on that issue.

“The County of Carteret, by virtue of the aforesaid easements recorded in Book 173,

Page 352 and Book 179, Page 109, Carteret County Registry, has the right to control the demolition, removal, repair, erection, installation, and use made of any docks, mooring stakes, anchorages, berths, or any permanent structure in the harbor, giving due regard to the riparian rights of the Plaintiffs and the other property owners whose property abuts the harbor, and such reasonable uses as the Plaintiffs and the other property owners whose property abuts the harbor may seek to make of their riparian rights; and the right of the public and all boat owners and boaters to use the waters of the harbor consistent with the purpose and intent of the harbor as expressed in its enabling statute, the River and Harbor Act of 1950…. The County of Carteret shall be the arbiter of any dispute concerning the demolition, removal, repair, erection, installation, and use made of any docks, mooring stakes, anchorages, berths, or any permanent structure in the harbor between the owners of property abutting the harbor, now and in the future, and the boaters, the general public, and others as disputes may arise.”

Since the trial court denied in part the motion for summary judgment, the trial court’s order is interlocutory. However, the trial court certified for immediate appeal its ruling on plaintiffs’ riparian rights. We review the merits of defendants’ appeal.

The individual defendants contend that riparian rights only attach to natural, as compared to artificial, bodies of water and that, since Marshallberg Harbor was constructed in the 1950s, it is not a natural waterway in which adjoining property owners are entitled to have riparian rights. We disagree.

Riparian rights are available to the owners of property that are adjacent to or encompass bodies of water that are navigable in fact. Riparian owners have a qualified property in the water frontage belonging by nature to their land, the chief advantage growing out of the appurtenant estate in the submerged land being the right of access over an extension of their water fronts to navigable water, and the right to construct wharves, piers, or landings. Bond v. Wool, 107 N.C. 126, 12 S.E. 281 (1890).

“The fact that a waterway is artificial, not natural,” does not determine the extent to which a body of water is navigable. Fish House, Inc. v. Clarke, 693 S.E.2d 208, disc. review denied, 2010 N.C. Lexis 596 (2010). “The controlling law of navigability concerning the body of water ‘in its natural condition’ reflects only upon the manner in which the water flows without diminution or obstruction,” so that “any waterway, whether manmade or artificial, which is capable of navigation by watercraft constitutes ‘navigable water’ under the public trust doctrine of this state.”

Given that the concept of “navigability” as used in the “public trust” and the riparian rights contexts is identical, and the fact that this court has rejected the distinction upon which the individual defendants rely in the “public trust” context, we hold that the trial court correctly concluded that the extent to which plaintiffs have riparian rights in Marshallberg Harbor does not hinge upon whether the harbor was natural or manmade. In addition, given that Marshallberg Harbor is clearly “capable of navigation by watercraft,” the owners of property bordering the harbor clearly have riparian rights in its waters. As a result, we conclude that the trial court did not err by granting summary judgment in favor of plaintiffs with respect to the riparian rights issue.

In its original motion, the trial court did not certify for immediate appeal its ruling on the county’s easement. In an amended order, the trial court attempted to add an appellate certification for this issue pursuant to its N.C.R. Civ. P. 60(a) authority to correct clerical errors. Since the trial court’s amendment worked a substantive modification to the original order, the amendment was outside the court’s authority to correct clerical errors. Although we dismiss plaintiffs’ appeal of this issue, we nevertheless grant certiorari and consider the merits of the issue.

An Oct. 19, 1956 grants “a perpetual right and easement, said easement to include the right to have all necessary dredged materials deposited upon the lands herein affected, all without further charge to the United States Government, to [Carteret County], later to be assigned, transferred or reconveyed to the United States Government, to dredge and construct a channel from the Straits channel, or Core Sound, into and up Sleepy Creek, and into and upon the lands belonging to the undersigned, and to dredge and construct a basin or boat harbor” as shown on Map No. PSB-90. The deed states that the U.S. “proposes to construct a small boat harbor for the boat owners of the people of Marshallberg and any and all other boat owners desiring to use same” and that it was “necessary to obtain from [the] owners [of the land upon which the harbor was to be built] an easement or right-of-way for the purpose of said construction, as well as later maintenance.” In granting this easement, the landowners stated a desire to cooperate with “the completion of such a project, with full realization as to the benefit to be received thereby, not only to the said land owners, but to the community and county as well….”

The upshot of plaintiffs’ position concerning the proper construction of the Oct. 19, 1956 easement is that the easement “is limited to the right to dredge the land and construct the channel and Harbor” and “contains no language giving the County any other rights….” We do not find this logic persuasive.

Plaintiffs’ reading of the Oct. 19, 1956 easement ignores language clearly establishing that the construction of Marshallberg Harbor was intended to serve public, rather than private, interests. The proposed harbor could only serve the public, as compared to a private, interest in the event that some entity had the right to ensure that the harbor functioned as a public, rather than a private, asset. For that reason, plaintiffs’ argument is inconsistent with the clear language of the Oct. 19, 1956 easement describing the overarching purpose of the Marshallberg Harbor project.

In addition, the literal language of the Oct. 19, 1956 easement indicates that the rights granted to the county “include[d] the right to have all necessary dredged materials deposited upon the lands herein affected” “later to be assigned, transferred or reconveyed to the United States Government,” for the purpose of constructing the necessary harbor facilities. The presence of the word “include” indicates that the right to “have all necessary dredged materials deposited upon the lands herein” was only part of the rights granted pursuant to the Oct. 19, 1956 easement. On the contrary, the clearly expressed purpose sought to be achieved by the granting of the Oct. 19, 1956 easement was the construction and operation of a harbor “for the boat owners of the people of Marshallberg and any and all other boat owners desiring to use same,” an end which could not be achieved solely through the construction and maintenance of a physical facility.

The language of the Oct. 19, 1956 easement does not in any way limit the rights granted to the county in order to permit the achievement of that purpose. The Oct. 19, 1956 easement does not purport to require the transfer of the entire collection of rights created by the original easement from the county to the U.S.; rather, it contemplates the transfer of the right to “have all necessary dredged materials deposited upon the lands herein affected” so that the U.S. could “dredge and construct a channel from the Straits channel, or Core Sound, into and up Sleepy Creek, and into and upon the lands belonging to the undersigned, and to dredge and construct a basin or boat harbor….”

Since all of the rights granted by the easement were not to be transferred from the county to the U.S., the parties clearly contemplated that the county would retain the rights that were not to be subsequently conveyed to the U.S. The Oct. 19, 1956 easement should be construed to grant the county the rights necessary to permit the construction, maintenance, and oversight of a small boat harbor for the use of the Marshallberg community and the general public.

The language of the Oct. 25, 1956 easement between the county and the U.S. confirms our interpretation of the Oct. 19, 1956 easement. According to the Oct. 25, 1956 easement, the

county conveyed to the U.S. “the perpetual rights and easement to enter unto, dig, or cut away any or all of the [real property described in the Oct. 25, 1956 easement] as may be required for the construction and maintenance of the aforesaid work or improvement or any enlargement thereof, and to maintain the portion cut away and removed, as part of the navigable waters of the United States.”

The U.S. obtained the rights necessary to construct and physically maintain Marshallberg Harbor. However, nothing in the language of the Oct. 25, 1956 easement in any way indicates that the county gave up any right that it had to oversee Marshallberg Harbor stemming from the Oct. 19, 1956 easement, particularly given that the provisions of the Oct. 25, 1956 easement granting the U.S. certain maintenance rights are not explicitly exclusive.

Thus, we do not construe the Oct. 25, 1956 easement as stripping the county of any rights that it may have obtained under the Oct. 19, 1956 easement for the purpose of overseeing the proposed harbor in the interests of the public.

The Oct. 25, 1956 easement simply authorized the U.S. to take certain actions while leaving the rights granted to the county under the Oct. 19, 1956 easement intact.

The Oct. 19, 1956 easement gave the county broad rights relating to the construction, maintenance, and oversight of Marshallberg Harbor, and nothing in the Oct. 25, 1956 easement stripped the county of those rights. The rights granted to the county under the Oct. 19, 1956 easement were necessary to ensure that Marshallberg Harbor served “boat owners of the people of Marshallberg and any and all other boat owners desiring to use the” harbor.

The trial court correctly construed the relevant easements to provide that the county “ha[d] the right to control the demolition, removal, repair, erection, installation, and use made of any docks, mooring stakes, anchorages, berths, or any permanent structure in the harbor” and should serve as “arbiter of any dispute concerning the demolition, removal, repair, erection, installation, and use made of any docks, mooring stakes, anchorages, berths, or any permanent structure in the harbor between the owners of property abutting the harbor, now and in the future, and the boaters, the general public, and others as disputes may arise.”

As to the trial court’s ruling on the prescriptive easement claim, the issues raised by plaintiffs’ challenge are exceeding fact-intensive. Plaintiffs’ request for certiorari review of the prescriptive easement issue is denied.

Affirmed in part, appeal dismissed in part.