The second paragraph of subsec. 1, Code, 2751, amended by cc. 17 and 349, Laws 1893, is as follows: "And when any such entry (of land in front of a riparian proprietor on navigable water and extending to the deep-water line) shall be made in front of the land in any incorporated town, the town corporation shall regulate the line on deep water to which wharves may be built: Provided, that this act shall not affect existing entries, existing rights, or pending (13) *Page 10 suits." Prior to the passage of the two amendatory acts in 1893, it had been held that, until it appeared affirmatively that the authorities of an incorporated town situated upon navigable water had marked out the line of deep water, the Secretary of State might refuse to issue a grant, under the provisions of The Code, sec. 2751, to the riparian owner of the land covered by water and extending out to the channel on his front. Wool v.Saunders, 108 N.C. 729. Under the law now in force it is made the duty of the authorities of the incorporated town, "when any such entry is made," not in terms to fix the line of deep water to which entries may extend, but to "regulate the line of deep water to which wharves may be built."
The plaintiff Wool has, and had before he made an entry, a qualified property in the land covered by water and extending on his front out to the line where it became navigable. Bond v. Wool, 107 N.C. 139;Zimmerman v. Robinson, 114 N.C. 39. It was formerly the duty of the councilmen to regulate the line on deep water for the purpose of locating entries. The duty of locating still subsists, but it is now enjoined for the purpose of indicating the line along which wharves may be built. The Legislature has the power, through the authorities of a town as agents, to regulate in a reasonable manner the location of the navigable water, whether to mark the boundary of entries or the points for building wharves (Bond v. Wool, supra), and the plaintiff would have had the right to build a wharf on the deep water in his front if the Legislature had conferred no such power of regulation, or if his land had been situated outside of an incorporated town.Bond v. Wool, supra. The law as amended makes it now his duty to demand the location of the line on which he may build a wharf in front of the town of Edenton before proceeding to build, just as the provision of the section cited from The Code made the location of that line necessary, in order to subject the land to entry. The plaintiff, as a riparian owner, could not build a wharf and avail himself (14) of the benefit of his qualified property, except subject to the regulations prescribed by the Legislature, and therefore it became necessary that he should demand that the line be designated.
On 7 March, 1893, the plaintiff submitted this demand in the shape of a respectful petition, and alleges in his complaint that the town refused to act upon it. He likewise avers that it is the duty of defendants to regulate the line of deep water, and that they have attempted, but failed, to so locate it that he may be able "to enjoy the use of his riparian rights." He prays that defendants be compelled "to locate the line of deep water in front of his said property."
It is true that in the second paragraph of the complaint he alleges that he has the right to make entry of the land on his front; but he would *Page 11 have been entitled to any relief that the facts warranted him in demanding, without making the formal prayer referred to. Having alleged his right to have the councilmen act, and their refusal to discharge the duty imposed by law, it was not material whether he incorporated in his complaint the fact that he had made an entry or gave no explicit reason therein for making the demand, other than that he was a riparian owner. The courts are presumed to know that the refusal to act deprived him of the use of his property for a most important purpose.
But it is insisted, in effect, that if the plaintiff has alleged in the complaint that he made the proper demand, the proof does not sustain the allegation. In his petition he asks for two things. First, that the board relocate the line of entry fixed by them on a former occasion; second, that the town shall "make a general line on the deep water of said sound and bay in front of the high land of the town of Edenton, so designated that each of the owners of the high land may know the line so established." It was not essential that he should notify the board of his purpose to proceed immediately to erect a wharf. They were (15) presumed to know that it was his right to build it, and their duty, on demand, to indicate to him where he should build.
When this case was before us at the Fall Term, 1893 (113 N.C. 33), we were not advertent to the fact that the law had been amended; but the amended act leaves the same duty incumbent on the defendants, though it declares that it shall be done to attain a different end, and since the plaintiff shows that they still owe that duty to him, and have refused, on demand, to discharge it, it is manifest that mandamus will lie to compel compliance with the statute by designating the deep-water line on which the plaintiff may build a wharf, just as under sec. 2751 the defendants could have been made to locate the outer line of an entry. 113 N.C. 35; Kooncev. Commissioners, 106 N.C. 192.
The plaintiff has a clear legal right which he cannot exercise until the defendants perform a positive duty imposed upon them by statute, and which they have refused to discharge. There being no other adequate remedy,mandamus lies. State v. Justices, 24 N.C. 430.
The judgment of nonsuit must be set aside and
New trial.
Cited: Wool v. Edenton, 117 N.C. 2; S. v. Twiford, 136 N.C. 607. *Page 12