September Term, 1890.
Riparian Rights — Navigable Streams — Water Front — Entry and Grant — Wharves — Evidence — Demurrer — Trespass — Injunction.
1. By demurring, the defendant admits the truth of the testimony in the aspect most favorable to the plaintiff.
2. In the absence of specific legislation, riparian owners have a qualified property in their water fronts.
3. Their right to construct wharves on such water fronts is subject to legislative control and the regulation of an adjoining incorporates town.
4. All vacant and unappropriated lands belonging to the State are subject to entry, except lands covered by navigable streams.
5. Persons owning lands on navigable streams may erect wharves next to their lands up to deep water, and may make entry and obtain title as in other cases, subject to the regulation that they must not obstruct navigation, and that they shall be confined to the straight lines from their water fronts.
6. By making entry under the laws of the State, such riparian owners of lands on navigable waters may acquire an absolute, instead of qualified, property in the land covered by water up to deep water.
7. So, where the plaintiff, owner of a tract of land on navigable water, and those under whom he claims, have occupied the shallow waters immediately fronting his land since 1802, by building fish-houses therein, no entry having been made under the statute: Held, (1) that he had only a qualified property therein; (2) that a defendant who, in order to gain access to deep water, erected on his own natural water front a pier which stood between the plaintiff's fish-houses and deep water on one side, was not a trespasser. The plaintiff was only entitled to access to deep water in his immediate water front.
8. Where it appeared that the defendant, who was preparing to erect a fish-house and landing which, when erected, would obstruct plaintiff's egress to deep water on one side, though not immediately in front, threatened to tear down plaintiff's wharf erected on plaintiff's own water front: Held, that defendant was not subject to injunction, it appearing that he was solvent and that the trespass was not continuous in its nature.
APPEAL from Whitaker, J., at Spring Term, 1890, of (140) CHOWAN.
W. M. Bond and Pruden Vann (by briefs) for plaintiff (147) (appellant.) J. W. Albertson, Jr., and C. M. Busbee for defendant.
The contention of the parties will be better understood with the aid of the following map referred to in the testimony. (See diagram.)
The plaintiff, complaining of the defendant, says —
1. That on 3 November, 1887, he was the owner and in the quiet and rightful possession of certain buildings and structures in Edenton, at the foot of Water street, which were used by him in landing fish caught in Albemarle Sound and packing the same for market, and which he had constructed at large expense.
2. That these houses and structures are reached by boats from Albemarle Sound and Edenton Bay, and if this means of approach be cut off they will be rendered entirely valueless.
3. That on the day named, the defendant threatened wrongfully to tear down and destroy said buildings and structures, and unless restrained by this Court will do so, wrongfully and unlawfully.
4. That the defendant also threatened at the same time, and has procured timber for the purpose of carrying out his said threat, to construct a wharf in Edenton Bay, running out from certain lots owned by him in Edenton, in such a manner as to obstruct and cut off all approaches by water to the plaintiff's said property, and so as to obstruct and impair the navigation of said bay and Albemarle Sound.
5. That Edenton Bay and Albemarle Sound are navigable waters.
6. That Edenton is an incorporated town.
7. That the defendant is not a citizen of the United States, and has obtained and can obtain no grant for the land covered by the water in which he proposes to construct his said wharf.
8. That the said action of said Wool is wrongful and unlawful. (141)
Wherefore, plaintiff demands judgment that the defendant be restrained and enjoined perpetually from destroying, interfering with and injuring the plaintiff's said houses and structures, and from obstructing the approaches to the same, and from building the wharf aforesaid, and for other relief to which this complaint may entitle him.
, SEE 107 N.C. 128.]
By demurring the defendant admits the truth of the testimony in the aspect most favorable to the plaintiff. Nelson v. Whitfield, 82 N.C. 46. He, therefore, concedes that the plaintiff and those under whom he claims have had open, notorious adverse possession of lot No. 187 (which is bounded by Blount and Granville streets on the north and east, by defendant Jacob Wool's lot on the west, and by the Machemacomac creek, an arm of Edenton Bay, on the south) for more than fifty years under a connected chain of title, beginning with (148) the will of Penelope Bond in 1802. It is further admitted that the dotted line running about one foot west of the plaintiff's fish-house is the western boundary line of lot No. 187, extended southward across or into Machemacomac creek, and that the piles driven by the defendant into the water to form a support for his proposed building, were not, and an extension of them would not have been, at any point, east of said dotted line. Does the testimony, not denied, show that the defendant Wool was a trespasser when the action began? We think not.
In the absence of any specific legislation on the subject, a littoral proprietor and a riparian owner, as is universally conceded, 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, subject to such general rules and regulations as the Legislature, in the exercise of its powers, may prescribe for the protection of public rights in rivers or navigable waters. Gould on Waters, sec. 149; 6 Lawson's Rights and Rem., sec. 2931; Yates v. Milwaukee, 10 Wall., 497; Dutton v. Strong, 1 Black, 31; Stillman v. White, 3 Woodbury Minot, 538 to 551; Vondolson v. Mayor New York, 17 Fed., 817; 28 Myers Fed. Dec. — Riparian and Littoral Proprietors — 689 to 761, especially pages 691 and 706; Houck on Rivers, secs. 280-281; S. v. Narrows Island Club, 100 N.C. 477; Broadnax v. Baker, 94 N.C. 681; R. R. v. Schumer, 7 Wall., 272; Lewis v. Keeling, 46 N.C. 299.
Leaving our legislation out of view, the plaintiff, or H. A. Bond, Sr., under whom he claims, is, at least in the discussion of this appeal to be considered as holding, as an incident to the ownership of lot No. 187, the right to build fish-houses over the water at any point east of the dotted line and southward and in front of said lot between (149) the land and navigable water, and this privilege the plaintiff has exercised and enjoyed since 1878, as had his father for nearly twenty years before. But the defendant Wool has, if his interest is not affected by our statute, a property of the very same nature in all of the water bounded by his front on the north, the dotted line on the east, navigable water on the south, and an extension of his western boundary line southward to navigable water on the west. He, too, has the right to construct piers, wharves, landings and fish-houses within the limits mentioned. According to the testimony, he had driven piles into the earth under the shallow water in a line just up to west of the dotted line, but had not extended his foundation as far south as the plaintiff's fish-houses. Clearly, then, if the western boundary line of lot No. 187 be located where the plaintiff claims that it runs, the defendant had not trespassed on the water front of that lot by crossing over to the east of it, but had, as far as his plans were developed, by his acts, shown a purpose to avoid the consequences of occupying the territory east of his own frontage, or east of the dotted line, which meant the same. This qualified property, that, according to well-settled principles, as interpreted in nearly all of the highest courts of the United States, is necessarily incident to riparian ownership, extends to the submerged land bounded by the water front of a particular proprietor, the navigable water and two parallel lines projected from each side of his front to navigable water.
At common law, land covered by water was the subject of grant, except where the tide ebbed and flowed; but, with the exception of a short interval, land covered by navigable water beyond the influence of tides was not subject to entry and grant under the statutes in force in North Carolina from 1777 to 1854. Hatfield v. Grimstead, 29 N.C. 139; Laws 1777, ch. 114; 1 Potter Revisal, p. 278; Rev. Stat., ch. 42, sec. 1. Laws 1854-55 (Code, sec. 2751) provide that "All vacant and (150) unappropriated land belonging to the State shall be subject to entry, except lands covered by navigable streams: Provided, that persons owning lands on any navigable sound, river, creek or arm of the sea, for the purpose of erecting wharves on the side of the deep waters thereof, next to their lands, may make entries of the land covered by water adjacent to their own, as far as the deep water of such sound, river, creek, or arm of the sea, and obtain title as in other cases. But persons making such entries shall be confined to straight lines, including only the fronts of their own tracts, and shall in no respect obstruct or impair navigation. And when any such entry shall be made in front of the lands of any incorporated town, the town corporation shall regulate the line on deep water to which entries shall be made; and for all lands thus entered there shall be paid into the treasury the sum of one dollar per acre. Also when any person shall have erected a wharf on public lands of the description aforesaid, before the passage of this section, such person shall have the liberty to enter said land, including his wharf, under the restrictions and upon the terms above set forth."
It seems that Laws 1777, ch. 114, sec. 10, restricted the right of entry on navigable waters to the water-mark, but did not by, any prohibitory provision, prevent the riparian grantee from acquiring, with the absolute property, to the margin of the water, the qualified property, which gave him access to the navigable water and the right to erect piers and wharves so that he might utilize the water for the transportation of persons and the products of the land. The act of 1854-55 (Code, sec. 2751, par. 1) made an exception in favor of riparian owners of land on any "navigable sound, river, creek, or arm of the sea," by giving to them the exclusive privilege of acquiring the absolute fee in the precise territory on their fronts, in which they already held, as incident to the original grant, the qualified property, or appurtenant right, (151) which we have defined. It does not seem that the General Assembly intended, if it had the power to do so, to wrest from riparian proprietors any rights that they already held, but to allow them, at a fair price, to acquire an absolute, instead of a qualified, property. It is apparent that where one holds lands abutting upon navigable waters, of the kind mentioned in the act, it would be the part of wisdom, if the right of access to, and use of, the water is at all valuable, to close with the State and take the proffered title in fee. One of the advantages, of which we can conceive, arises out of the provisions of the very next subsection to that we are discussing. So that in no view of the case, has the plaintiff or his father acquired more than a qualified property in the land covered by water, or any right or interest whatever west of the red line, while the defendant has driven no piles east of that line. The defendant has not, therefore, committed any trespass on the plaintiff's front. If the defendant, in order to gain access to the deep water on his own natural front, had located a fish-house immediately west of that occupied by the plaintiff, he would not, in any view of the case, have incurred liability to an action on the part of the plaintiff. The plaintiff offered no grant. He had a right to take out a patent only for the land extending out to the deep water between the dotted line and a prolongation of his eastern boundary line southward towards the bay. If his fish-house opened on deep water only on the west, he could remove it far enough south to gain access to navigable water by the southern door, and he or his father has the privilege of acquiring title to the land on his natural front to that point. There is no general allegation in the complaint that the defendant had trespassed upon the plaintiff's land (lot No. 187), but a specific charge that he has trespassed by driving piles into the lands covered by water along a certain line. If, therefore, there is evidence to show a trespass north of the shore by crossing over the dotted line, there is no allegation in the complaint that would correspond with the proof, even under the liberal rule laid down in Harris v. Sneeden, 104 N.C. 369. (152)
The only remaining question is, whether the testimony establishes the right of the plaintiff to demand a perpetual injunction in order to restrain the defendant from injuring or destroying the fish-house or any part of it. Notwithstanding the denials in the answer, the defendant, by demurring to the evidence, admits that he threatened to tear down a part of plaintiff's wharf, and proposed to build a fish-house and landing immediately to the westward of that occupied by plaintiff, and that he said in the plaintiff's presence, after ordering the latter to remove his said wharf, that if the order should not be obeyed he would remove it himself.
As we have already stated in substance, the testimony not only fails to establish prima facie a continuous trespass on the part of the defendant upon any portion of the premises claimed by the plaintiff, but it does not show even that his lot or water front has at any time been actually invaded by the defendant. His demand for extraordinary relief rests, therefore, solely upon the idea that he may rightfully invoke the aid of equity to prevent the threatened injury to the fish-house or wharf. The general rule is, that where one is shown to be engaged in committing acts that would amount to waste, if his occupation or entry upon land is wrongful, equity will not interpose by injunction unless —
1. The plaintiff also sets up an apparently good title and the owner fails to deny at all, or to sufficiently controvert, such claim of title.
2. Unless it appears by the allegation of specific facts that the acts complained of will probably be productive of irreparable injury to the plaintiff.
(153) As a general rule, too, such relief will not be granted to put a stop to, or prevent, the commission of waste, unless it appears, likewise, that the party who is doing the injury is insolvent, but an exception to this general principle grows out of the provision of chapter 401, Laws 1885, that it shall not be necessary to allege the insolvency of a defendant where the trespass is continuous in its nature, or consists in the cutting and removing of timber-trees. The facts admitted fail to bring this case within the exception. Rollins v. Henry, 77 N.C. 467; Dunkart v. Rinehart, 87 N.C. 224; Lumber Co. v. Wallace, 93 N.C. 22; Ousby v. Neal, 99 N.C. 146; Lewis v. Lumber Co., ib., 11; Frink v. Stewart, 94 N.C. 484. The mere threat made by the defendant, who is perfectly solvent, to tear down a part of a landing, without any overt act evincing a purpose to execute it, is not, of itself, sufficient to warrant the interposition of the Court of Equity. High on injunction, sec. 425; Gibson v. smith, 2 Atkins, 182. The threatened injury differs widely from the tearing down of dwelling houses or the cutting down of fruit trees or ornamental trees, for which it has been held that there could not be sufficient compensation in damages. High on Injunction, sec. 462.
For obvious reasons the defendant has the right to build a wharf or landing on his own water front, and cover it so as to protect fish or other articles landed there, and he will not be restrained in the exercise of this right, because, in building at the deep water line, he may cut off the western approach to the plaintiff's house or close its western door. There is no error, and the judgment below is
Cited: Wool v. Saunders, 108 N.C. 743, 745; Knight v. R. R., 111 N.C. 83; Hopkins v. Bowers, ib., 178; Gwaltney v. Land Co., ib., 552; Tate v. Greensboro, 114 N.C. 404; S. v. Eason, ib., 791; Comrs. v. Lumber Co., 116 N.C. 732; Whitley v. R. R., 122 N.C. 989; Holly v. Smith, 130 N.C. 86; Land Co. v. Hotel, 132 N.C. 530; S. v. Twiford, 136 N.C. 607; Riddick v. Dunn, 145, N.C. 34; Brewer v. Wynne, 154 N.C. 471; R. R. v. Way, 172 N.C. 779.