SandBar 10.2, April, 2011
Recommended citation: Lindsey Etheridge, Landowners Adjacent to Artificial Bodies of Water in N.C. Have Riparian Rights 10:2 SandBar 11 (2011).
Landowners Adjacent to Artificial Bodies of Water in N.C. Have Riparian Rights
Lindsey Etheridge, 2011 J.D. Candidate, University of Mississippi School of Law
The North Carolina Court of Appeals recently held that landowners adjacent to a manmade harbor have riparian rights in its waters.1 This ruling is contrary to the rule in most states that riparian rights only attach to land adjacent to natural bodies of water.2 In making its decision, the court focused on the issue of navigability and a prior court of appeals case that treated both natural and artificially-created navigable waters the same in the context of the public’s right to use the waters.3 The court also examined two easements granted at the time of construction of the harbor to determine the county’s extent of control over the waters.
Marshallberg, in Carteret County, is a small community on a peninsula in North Carolina. In 1950, Congress passed the River and Harbor Act of 1950, authorizing the construction of a small harbor with an approach channel in Marshallberg for public use. The local community would contribute to the project by building an access walkway, stalls for tying up boats, and a public landing. In order to facilitate construction, the owners of land on or through which the harbor would be built granted a perpetual right and easement to the county, including the right to have all necessary dredged materials deposited on the land. This easement would then be transferred to the United States to dredge and construct the approach channel. Carteret County also granted a perpetual right and easement to the United States to “enter unto, dig or cut away any or all of the … land as may be required for the construction and maintenance of the [harbor project] or any enlargement thereof.”4
The Marshallberg Harbor Case
Marshallberg Harbor was constructed in the late 1950s and since then has been used by members of the community and the general public for various purposes. Both owners of property adjacent to the harbor and people who use the harbor without owning any property have built docks and walkways and other similar facilities throughout the years. In 2005, certain owners of property adjoining Marshallberg Harbor (the landowners) filed suit against Carteret County, certain other landowners of property in the vicinity, and certain individuals who own no property but use the harbor facilities (the County). The complaint asserted that the landowners have riparian rights in the harbor waters and alleged that the easements granted at the construction of the harbor do not restrict these rights or give any person the right to dock boats or build structures on their property, but only give the United States and the County the right to enter their land for the purpose of maintaining the harbor. They requested the court to enjoin anyone from entering or using their land and riparian corridors and to require the removal of all boats from their property.5
The trial court found that owners of land adjacent to Marshallberg Harbor have riparian rights in its waters, subject to the easement rights of the County. The court also ordered that the County “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…property owners whose property abuts the harbor … and the right of the public and all boat owners and boaters to use the waters of the harbor,” and that Carteret County would be the arbiter of any dispute concerning permanent structures.6 Both parties appealed to the North Carolina Court of Appeals.7
In North Carolina, riparian rights are “vested property rights that arise out of ownership of land bounded or traversed by navigable water.”8 Therefore, whether landowners of property adjacent to Marshallberg Harbor have riparian rights in its waters depends on whether the harbor is a navigable water. The County argued that riparian rights only attach to land adjacent to natural bodies of water, and since Marshallberg Harbor was artificially created, the adjoining property owners have no riparian rights.9 The court of appeals, however, had recently held in a case applying the public trust doctrine that whether a body of water is natural or artificial does not determine the extent to which it is navigable.10 The determining factor as to whether a body of water is navigable is “‘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.11 Consequently, the court of appeals declared that Marshallberg Harbor is clearly capable of navigation by watercraft and therefore concluded that the owners of land adjoining the harbor have riparian rights in its waters.
Right to Control Marshallberg Harbor
On the issue of whether Carteret County has the right to control permanent structures in Marshallberg Harbor and to serve as arbiter of any dispute over such structures, the court of appeals examined closely two easements granted at the construction of the harbor.12 In the first easement, the landowners on or through which the harbor would be built granted a perpetual right and easement to Carteret County, later to be transferred to the United States government, “said easement to include the right to have all necessary dredged materials deposited upon the lands.”13 The landowners argued that the county no longer had the right to control Marshallberg Harbor because that right had been transferred to the United States. The court, however, focused on language in the easement establishing that the harbor was built to serve public, rather than private, interests. In order to protect that purpose, some entity must have the right to enforce it. In addition, the court found that the clear language did not transfer all of the County’s rights to the United States, but only the right to have all necessary dredged materials deposited on the land. Therefore, this easement “should be construed to grant Carteret 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.”14
In the second easement, Carteret County granted a perpetual right and easement to the United States to “enter unto, dig or cut away any or all of the … land as may be required for the construction and maintenance of the [harbor project] or any enlargement thereof.”15 The landowners argued that this easement, by giving the United States the rights necessary to construct and physically maintain Marshallberg Harbor, stripped the County of the rights granted to it in the first easement. The court disagreed and concluded that the second easement “simply authorized the United States to take certain actions while leaving the rights granted to Carteret County under the [first easement] intact.”16 Consequently, the court held that Carteret County has the right to control permanent structures in Marshallberg Harbor and should serve as arbiter of any dispute concerning such structures.
The Marshallberg Harbor case answers an important coastal question in North Carolina: adjacent landowners have riparian rights in artificial bodies of water. The court’s ruling giving the landowners riparian rights, which include the right to wharf out into the harbor, means that any existing docks and boat slips built by the citizens of Marshallberg will have to be removed.17 Given that Marshallberg Harbor has been completely open to public use for over fifty years, the effects of this case on the harbor and the Marshallberg community may be significant.
1. Newcomb v. County of Carteret, 2010 N.C. App. LEXIS 2011 (N.C. Ct. App. Nov. 2, 2010).
2. Joseph J. Kalo, A Trilogy of Significant Coastal Cases, Legal Tides, 3 (Autumn 2010).
3. See Fish House, Inc. v. Clarke, 693 S.E.2d 208 (N.C. Ct. App. 2010).
4. Id. at **4-8.
5. Id. at **8-12.
6. Id. at **17-20.
7. These appeals were interlocutory because the trial court had other claims to address before issuing a final judgment.
8. Newcomb, 2010 N.C. App. LEXIS 2011 at **28.
9. Id. at **27-28.
10. See Fish House, 693 S.E.2d 208.
11. Newcomb, 2010 N.C. App. LEXIS 2011 at **30 (quoting Fish House, 693 S.E.2d at 212).
12. The trial court erroneously certified this issue for immediate appeal, but the Court of Appeals granted certiorari on its own motion to permit it to address the issue. Newcomb, 2010 N.C. App. LEXIS 2011 at **33-38.
13. Id. at **44.
14. Id. at **45-48.
15. Id. at **49.
16. Id. at **50-51.
17. Kalo, supra note 2.