PARMELE
v.
EATON.
No. 593.
Supreme Court of North Carolina.
July 9, 1954.*97 Hogue & Hogue, Wilmington, for plaintiff, appellee.
Robert E. Calder, Wilmington, for defendant, appellant.
Harry McMullan, Atty. Gen., and Samuel Behrends, Jr., Raleigh, Member of Staff, amici curiae on Behalf of the State Board of Education.
JOHNSON, Justice.
Our study of the record leaves the impression that the judgment below should be upheld. We rest decision on the findings of fact which bring the conveyances made by the State Board of Education to the plaintiff's predecessors in title within the purview of the statutes authorizing and validating sales and conveyances of marsh or swamp lands. In this view of the case the question whether the Sneeden grant of 1841 is valid becomes moot.
By statute enacted prior to 1926, now codified as G.S. § 146-94, the State Board of Education was given sole authority to sell and convey all vacant unentered marsh and swamp lands of the State where, as limited by the provisions of G.S. § 146-1 et seq., the land is not covered by navigable waters and the quantity in any one marsh or swamp exceeds 2,000 acres. See Home Real Estate Loan & Insurance Company v. Parmele, 214 N.C. 63, at pages 69 and 70, 197 S.E. 714. See also Chapter 151, Public Laws of 1941, and Article IX, Sec. 9 (formerly § 10), Constitution of North Carolina.
By statute enacted prior to 1926, now codified as G.S. § 146-4, it is provided that the words "swamp lands" as used in G.S. § 146-94 "shall be construed to include all those lands which have been or may now be known and called * * * `marsh' lands, `pocosin bay,' `briary bay,' and `savanna,' * * *."
By Chapter 966, Session Laws of 1953, ratified April 23, 1953, applicable to the counties of New Hanover, Pender, and Onslow, it is provided in pertinent part that: "The titles to all marsh lands and all swamp lands which have heretofore been conveyed by * * * the State Board of Education of North Carolina * * * are hereby validated, ratified and confirmed, and the persons, firms or corporations to whom such marsh lands or swamp lands have been conveyed or granted or their successors in title are hereby declared to have such title thereto as was purported to be conveyed or granted by any of the conveyances or grants hereinbefore referred to, as fully and as completely as said conveyances or grants purported to convey or grant the same; * * *."
It is manifest that the deeds made in 1926 and 1944 by the State Board of Education to the plaintiff's predecessors in title were made in contemplation that portions of a single tract of more than 2,000 acres of marsh lands were being conveyed.
The trial court found that when the locus in quo was conveyed by the State *98 Board of Education to the plaintiff's predecessors in title in 1926 and in 1944, respectively, the land so conveyed was "marsh land and a portion of a tract of marsh land in excess of 2,000 acres." The lower court also found that no part of the locus is or was covered at any stage of the tide by waters which are navigable in fact. These are the crucial, determinative findings and conclusions. The defendant challenges the sufficiency of the evidence to support these findings. This brings into focus the testimony of the plaintiff and his witnesses.
The plaintiff testified that the locus "is a part of the marsh land which lies behind the banks at Wrightsville Beach and Shell Island. There are many more than 2,000 acres of marsh land in the area, perhaps 50,000 acres. It is a complete body of marsh land going right up to Pamlico Sound * * *."
Richard F. Meier, member of the Board of Aldermen of Wrightsville Beach, testified in part: "In 1926 Moore's Inlet was somewhere about Columbia Street. * * * south of the pier * * * shown (on the aerial photograph) going out into the ocean. * * * The land * * * to the west of and adjacent to the * * * Disposal Plant was marsh land. By marsh land I mean that it was land with grass growing on it. * * * At exceptionally high water the whole marsh was covered with approximately 6 inches of water over the marsh. * * * Sunset Lagoon which is shown on the exhibit was dredged out. * * * Hugh MacRae & Company dredged it out for the purpose of building more land. * * * There is no public terminus or any sort of terminus in Sunset Lagoon. There is no public dock * * * anywhere in that area. Commercial shrimp boats do not go up in that area as they can't get by the bridge. (See highway bridge on aerial photo, Exhibit B.) The bridge isn't high enough * * * and they wouldn't have water enough. * * * the area to the west of Wrightsville Beach, just before you get to the beach, is called Harbor Island. * * * I have never seen a boat navigate over the area on the map * * * shown in green. (the land involved in the caseshown on Exhibit A within the dotted lines) * * * at all times since 1926 up until the dredging took place in 1953 that area (referring to the locus in quo) was covered with marsh grass. * * * The land * * * was a part of a continuous tract of marsh land which ran in every direction. * * * between the banks and the mainland."
The witness Ernest Woolard testified he has lived in the vicinity of Wrightsville Beach for thirty years and is engaged in the business of boatingtaking fishing parties out in the ocean. He said in part: "* * * Moore's Inlet in * * * 1926 was some distance back to the south from where it is presently located. * * * At that time the land to the north and norths west of Moore's Inlet was a continuous marsh from Stokeley's Channel which goes through here to the end of Harbor Island, except for two creeks Which went through the marsh, one closer up here to the northwest and the other down toward the east. All the rest was marsh. There was one creek up close to the end of Harbor Island. It was just a creek. * * * It is not possible to navigate a boat into this marsh land. * * * After the inlet moved to the north the sand beat across it and wherever the sand beat across the marsh it killed the marsh grass. * * * Marsh grass won't grow on sand. * * * Marsh grass won't grow unless it's covered with salt water on high tide * * *. At an average high tide most of the marsh land would be covered by water a foot or a foot and a half. * * * The little channels which run through the marsh grass are called little guts. They are just little drains. It is not possible to navigate in those guts. * * * I don't think it is possible to navigate any kind of a boat over marsh grass at high tide. * * * you could drag a row boat over it. * * * I am familiar with the area on Exhibit B shown in green (now in dotted lines) prior to its being filled. It was not possible to navigate a boat in it at any stage of the tide. It was marsh grass. * * * there was no kind of fishing that could be done *99 with a small skiff in that area. You couldn't do nothing because the grass was out on high tide. It was impossible to use that for any sort of navigation."
D. B. George, whose business is fishing in the Wrightsville area, said Harbor Island was created by being "pumped up." He testified in part: "I worked on the dredge that pumped up Harbor Island in * * * 1917. * * * Captain Price carried this dredge around through Spring Landing Channel (shown on aerial-photo, Exhibit B) which goes in just below where the bridge is at Wrightsville. * * * This is the channel shown to the north end of Harbor Island which goes around to the Inland Waterway. * * * I had occasion to try to get through Spring Landing Channel last winter. I was in a boat which drew about two feet of water. The tide was about two hours ebb, that is two hours after high tide. * * * My son thought we could get through, so we went on and got about half way down the channel and found we couldn't get through. * * * Spring Landing Channel is not used for commercial boats of any kind. It's not used for nothing more than fellows going oystering and clamming. * * * Fishermen don't use Spring Landing Channel, they use Stokeley's Channel going out the Inland Waterway. * * * It is possible to get through Spring Landing Channel at high tide with a small boat which draws two feet of water."
Clyde Harrelson testified: "* * * The tide normally rises 3½ feet at Wrightsville Beach. * * * No commercial fishing boats fish in the area of Sunset Lagoon. * * * The area (in controversy) is a part of a tract of marsh land which is in excess of 2,000 acres that runs from the beach to the mainland."
The foregoing testimony and other evidence of like import supports the crucial findings of fact of the court below to the effect (1) that the land in question when conveyed by the State Board of Education was part of a tract of marsh land in excess of 2,000 acres and (2) that no part of the locus is or was covered by waters which are navigable in fact.
With us the ebb and flow of the tide is not the criterion for determining navigability. The more practical test is whether, in its ordinary state, a body of water has capacity and suitability for the usual purpose of navigation by vessels or boats such as are employed in the ordinary course of water commerce, trade, and travel. See 56 Am.Jur., Waters, Sec. 179; Home Real Estate Loan & Insurance Co. v. Parmele, supra, 214 N.C. 63, 197 S.E. 714. Briefly stated, the rule with us "is that all water courses are regarded as navigable in law that are navigable in fact." Resort Development Co. v. Parmele, supra, 235 N.C. 689, 71 S.E.2d 474, 475.
It is noted that the record here presents no question as to conflict between riparian and navigation rights.
As to the defendant's plea of estoppel, it is enough to say that new facts alleged in the pleadings and developed at the trial relating to the locus in quo, showing that the instant case relates to only a small portion of the land involved in the former case, Resort Development Co. v. Parmele, supra, 235 N.C. 689, 71 S.E.2d 474, and that the land was purchased by the plaintiff after the passage of the Act, Chapter 966, Session Laws of 1953, validating titles to marsh land, prevent the plaintiff in this action from being estopped from asserting and proving marketable title to the locus in quo.
The judgment below will be upheld.
Affirmed.