RICHARD BARBEE GWATHMEY, JR., and wife, GWENDOLYN BROWNGWATHMEY, ROBERT F. CAMERON and wife, ELIZABETH BECK CAMERON,and ELIZABETH BECK CAMERON, LOUISE deR. SMITH, ROBERT Y. KELLY andwife, ELSIE W. KELLY, and IN THE MATTER OF: WACHOVIA BANK OF NORTHCAROLINA, N.A., EDITH R. MERRILL and BARBARA M. WALSER, TRUSTEESUNDER THE WILL OF LESLIE M. MERRILL v. THE STATE OF NORTHCAROLINA, acting through its agency, the Department of Environment, Health, andNatural Resources, acting through its Secretary, WILLIAM W. COBEY, JR., and theDivision of Marine Fisheries, acting through its Director, DR. WILLIAM T. HOGARTH,and the SUBMERGED LANDS PROGRAM, acting through its Director, P.A.WOJCIECHOWSKINo. 74PA94 - New HanoverSUPREME COURT OF NORTH CAROLINA342 N.C. 287; 464 S.E.2d 674 January 11, 1995, Heard In The Supreme Court December 8, 1995, Filed COUNSEL: Stephens, McGhee, Morgan, Lennon & O'Quinn, by Janet R. Coleman and Darren S. Hart, for plaintiff-appellees. Michael F. Easley, Attorney General, by Daniel F. McLawhorn and J. Allen Jernigan, Special Deputy Attorneys General, and David W. Berry, Associate Attorney General, for defendant-appellant. Thompson & Godwin, L.L.P., by Billy R. Godwin, Jr., and by Robert Kerry Kehoe, counsel, on behalf of Coastal States Organization, Inc., amicus curiae.JUDGES: MITCHELL, Chief Justice.OPINIONBY: MITCHELLOPINION: MITCHELL, Chief Justice. The parties stipulated at trial that the lands claimed by each of the plaintiffs that comprisethe 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." n1 The parties stipulated that each of the plaintiffs could establish a chain of title linking their deeds to the sourcedeeds from the SBE, with one exception. n2 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -n1 The quoted language appears in each of the deeds except for the SBE deed to Paul Rogge through which the plaintiffs Cameron claim a portion of their land. The Rogge deed uses the word "land" instead of "marshland." That deed also has the words "heirs and assigns" and later states that Rogge receives the land "in fee simple." The other deedsuse the language "heirs and assigns in fee simple forever," all in one sentence. n2 We deal with the status of plaintiff Louise deRosset Smith's chain of title below in our discussion of the relevant issue presented by this appeal. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -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 inlaw in North Carolina is "navigability in fact."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
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