Jones v. Turlington , 243 N.C. 681 ( 1956 )

92 S.E.2d 75 (1956) 243 N.C. 681

John S. JONES
v.
W. T. TURLINGTON and wife, Chellie Turlington; J. Hedrick Aman and wife, Sallie H. Aman; Frank A. Smith and wife, Pearl Smith, and Elbert Guthrie.

No. 94.

Supreme Court of North Carolina.

March 21, 1956.

Luther Hamilton, Luther Hamilton, Jr., Morehead, for plaintiff appellant.

Albert Ellis, Jacksonville, C. R. Wheatly, Jr., Beaufort, for defendants appellees.

WINBORNE, Justice.

This is pivotal question on this appeal: Bearing in mind that the lateral lines of lot No. 188, as shown on the map, and as indicated by the legends appearing on the map, extend across the full width of Front Street to the ordinary highwater mark of U. S. Intra-Coastal Waterway, does the conveyance of the lot according to the map, without reservation, carry the fee in the land covered by the street? The answer is "Yes", subject to the easement of the street. Thus the conveyance by plaintiff, without reservation, vested in his grantee ownership of land bordering on the waterway, with littoral or riparian rights incident to such ownership.

For as stated by this Court in O'Neal v. Rollinson, 212 N.C. 83, 192 S.E. 688, 689, quoting from Bond v. Wool, 107 N.C. 139, 12 S.E. 281, "``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 the public rights in rivers and navigable waters.'" See G.S. § 146-6. And, again, in same case, 107 N.C. at page 149, 12 S.E. at page 689, it is said: "``This qualified property, that according to well settled principles, as interpreted in nearly all the highest courts in the United States, is necessarily incident to riparian ownership, extends to the submerged lands bounded by the water-front of a particular proprietor, the navigable water, and two parallel lines extended from each side of his front to navigable water.'" See also Gaither v. Albemarle Hospital, 235 N.C. 431, 70 S.E.2d 680.

Indeed the principle of accretion is based upon littoral or riparian ownership of water frontage. "Generally, accretion is the increase of riparian land by the gradual deposit, by water, of solid material, whether mud, sand or sediment, so as to cause that to become dry land which was before covered by water." 56 Am. Jur. 891, Waters, Sec. 476. And "it is a general rule that where the location of the margin or bed of a stream or other body of water which constitutes the boundary of a tract of land is gradually and imperceptibly changed or shifted by accretion, reliction, or erosion, the margin, or bed of the stream or body, as so changed, remains the boundary line of the tract, which is extended or restricted accordingly. The owner of the riparian land thus acquires title to all additions thereto or extensions thereof by such means and in such manner, and loses title to such portions as are so worn or washed away or encroached upon by the water, in the absence of any provision or agreement to the contrary." 56 Am.Jur. 892, Waters, Sec. 477.

It follows from the foregoing that in order to establish title to accretions, the claimant must show that they are formed by deposits against upland owned by him or his grantors. The principle was applied by this Court in the case of Murry v. Sermon, 8 N.C. 56, in which the headnote in pertinent part reads: "If a lake recede gradually and insensibly, the derelict land belongs to the riparious proprietor * *."

There are other exceptions taken in the course of the trial and covered by assignments of error, but in view of the decision reached they are deemed immaterial. The burden was upon plaintiff to make out his title, and he must rely upon the strength of it. Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673. And having failed to show title in himself, the judgment from which appeal is taken is

Affirmed.