Capune v. Robbins , 273 N.C. 581 ( 1968 )

160 S.E.2d 881 (1968) 273 N.C. 581

Larry CAPUNE
v.
John S. ROBBINS, trading as Morehead Ocean Pier.

No. 112.

Supreme Court of North Carolina.

May 1, 1968.

Hamilton, Boshamer & Graham, Morehead City, for plaintiff appellee.

Wheatly & Bennett, Beaufort, for defendant appellant.

BOBBITT, Justice.

We consider first whether defendant had a legal right to forbid and prohibit plaintiff from passing under the pier on his paddleboard.

The Federal Statute, 33 U.S.C.A. § 403, relating to the obstruction of navigable waters, required that defendant's predecessor, before constructing a pier, obtain permission to do so from the U.S. Corps of Engineers. Otherwise, the issuance of the permit did not enlarge or impair defendant's littoral rights.

Subject to the authority and rights of the United States respecting navigation, flood control and production of power, Congress, by enactment of the Submerged Land Act (1953), 43 U.S.C.A. § 1311 et seq., relinquished to the states the entire interest of the United States in all lands beneath navigable waters within state boundaries, inclusive of submerged lands within three geographical miles seaward from the coast of each state. See State ex rel. Bruton v. Flying "W" Enterprises, Inc., 273 N.C. 399, 160 S.E.2d 482.

Our statutes, prior to enactment of Chapter 683, Session Laws of 1959, relating to "Lands Subject to Grant," were codified as Chapter 146, Article 1, of the General Statutes, recompiled 1952. Based on the statutes brought forward and codified in 1952 as G.S. § 146-1 and G.S. § 146-6, it was held that lands covered by navigable waters were not the subject of entry with one exception, to wit: Riparian owners were given a right of entry for the restricted purpose of using such lands for erecting wharves on the side of deep water in front of their shorelines. Atlantic & N.C.R. Co. v. Way, 172 N.C. 774, 90 S.E. 937; Land Co. v. Atlantic Hotel, 132 N.C. 517, 44 S.E. 39, 61 L.R.A. 937 and cases cited. Accord: Barfoot v. Willis, 178 N.C. 200, 100 S.E. 303. In Atlantic & N.C.R. Co. v. Way, supra, Walker, J., for the Court, said that the State "granted merely a privilege or easement in the land and waters covered thereby, for the single purpose of building wharves in aid of commerce and a better enjoyment of the shores of navigable waters."

G.S. Chapter 146, as codified in 1952, was superseded by Chapter 683, Session Laws of 1959, which rewrote Chapter 146. G.S. § 146-1 and G.S. § 146-6 as codified in 1952 were repealed. Chapter 146, as rewritten in 1959, is now codified as Chapter 146 of Volume 3C of the General Statutes, 1964 Replacement.

G.S. § 146-3, as now codified, provides that no submerged lands of the State may be conveyed in fee but that easements therein may be granted in the manner prescribed.

G.S. § 146-12 provides:

"The Department of Administration may grant, to adjoining riparian owners, easements in lands covered by navigable waters or by the waters of any lake owned by the State for such purposes and upon such conditions as it may deem proper, with the approval of the Governor and Council of State. The Department may, with the approval of the Governor and Council of State, revoke any such easement upon the violation by the grantee or his assigns of the conditions upon which it was granted.

"Every such easement shall include only the front of the tract owned by the riparian owner to whom the easement is granted, shall extend no further than the deep water, and shall in no respect obstruct or impair navigation.

"When any such easement is granted in front of the lands of any incorporated town, the governing body of the town shall regulate the line on deep water to which wharves may be built."

Nothing in the record indicates an easement in the submerged land was granted to defendant or to any of his predecessors by the State. Absent such grant, his rights depend solely upon his status as a littoral or riparian owner.

In Bond v. Wool, 107 N.C. 139, 12 S.E. 281, involving a controversy between two riparian owners, neither had a grant for any of the property extending between the shoreline and the channel, and each relied upon his rights as riparian owner. This Court, in opinion by Avery, J., said: "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 public rights in rivers or navigable waters." (Our italics.) This statement is quoted with approval by Winborne, J. (later C.J.), in O'Neal v. Rollinson, 212 N.C. 83, 192 S.E. 688. Accord: Gaither v. Hospital, 235 N.C. 431, 70 S.E.2d 680; Jones v. Turlington, 243 N.C. 681, 92 S.E.2d 75.

In Bell v. Smith, 171 N.C. 116, 118, 87 S.E. 987, 989, where it was held that "(n)o person has a several or exclusive right of fishery in any of the public navigable waters of the state," Clark, C.J., for the Court, said: "The right of fishing in the navigable waters of the state belongs to the people in common, to be exercised by them with due regard to the rights of each other, and cannot be reduced to exclusive or individual control either by grant or by long user by any one at a given point."

The question arises as to whether the right of a littoral proprietor to construct a pier and thereby provide access to ocean waters of greater depth authorizes him to exclude the public from the use of the waters of the ocean under and along such pier. Although no decision of this Court bearing directly on the question has come to our attention, decisions of the Court of Appeals of New York relating to "(t)he strip of land that lies between the high and low water marks and that is alternately wet and dry according to the flow of the tide," known as the "foreshore," (Black's Law Dictionary, Fourth Edition, p. 777) bears significantly upon the question.

In Barnes v. Midland Railroad Terminal Co., 218 N.Y. 91, 112 N.E. 926, the plaintiff sought to restrain the obstruction of part of the foreshore of Staten Island. On an earlier appeal, Barnes v. Midland R.R. Terminal Co., 193 N.Y. 378, 85 N.E. 1093, 127 Am.St.Rep. 962, the relative rights of the littoral owner on the one hand and of the public on the other were defined. It was held that the littoral owner had the right to construct a pier in order to provide a means of passage from the upland to the sea; that the public must submit to any necessary interference to their right of passage over the foreshore, but that unnecessary obstruction was an invasion of the public right. In the later decision, where an injunction granted by the lower court was modified and affirmed, the court, in opinion by Cardozo, J., said: "If passage under the pier is free and substantially unobstructed over the entire width of the foreshore, the plaintiffs are entitled to no more. The pier was not built for their use, and is not to be maintained for their convenience. Weems Steamboat Co. v. People's Steamboat Co., 214 U.S. 345, 29 S.Ct. 661, 53 L.Ed. 1024, 16 Am.Cas. 1222. But the passage under the pier must be free and substantially unobstructed over the entire width of the foreshore. This means that from high to low water mark it must be at such a height that the public will have no difficulty in walking under it when the tide is low or in going under it in boats when the tide is high." Accord: Town of Brookhaven v. Smith, 188 N.Y. 74, 80 N.E. 665, 9 L.R.A.(N.S.) 326; Aquino v. Riegelman, 104 Misc. 228, 171 N.Y.S. 716. It would seem the public would have equal rights to use without unnecessary obstruction the ocean waters seaward from the strip constituting the foreshore.

Conceding (1) defendant's ownership of the pier and adjacent beach and his right to prohibit the use thereof by others, and (2) that the use defendant was making of the pier and adjacent beach was lawful, it does not follow that defendant could lawfully prohibit the use of the ocean waters beneath the pier as a means of passage by water craft in a manner that involves no contact with the pier itself.

Here evidence fails to disclose any legal right of defendant to forbid and prohibit plaintiff from passing under defendant's pier on his paddleboard in continuation of his journey to the south.

Defendant, by his failure to set them out in his brief, has abandoned, and properly so, his exceptions to the denial of his motions for judgment of nonsuit. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810. There was ample evidence to require submission to the jury of the issues raised by the pleadings. Moreover, there was no objection to trial on the issues as submitted by the court.

The assignments of error brought forward in defendant's brief, except formal assignments, relate to (1) asserted errors in the charge, and (2) asserted errors in rulings on evidence.

Defendant assigns as error excerpts from the charge in which the court defined "assault" and "assault and battery" and stated the contentions of plaintiff and of defendant with reference to the first issue. Consideration of these assignments fails to disclose error prejudicial to defendant. With reference to defendant's contentions, the court gave this instruction: "The defendant contends here that he did not assault the plaintiff; that he did not throw these bottles at him to strike him, but only threw them into his vicinity to scare him away where he was interfering with his business. Now, the Court instructs you that if he didn't throw them at him, then that would not constitute an assault, but if he threw them at him, then it would constitute an assault." (Our italics.) Although defendant excepted to this excerpt and assigned it as error, it seems clear the error was in defendant's favor.

With reference to the third (punitive damages) issue, the court gave appropriate instructions as to the nature of punitive damages and the circumstances under which punitive damages could be awarded. The only ground on which defendant challenges the two excerpts from the charge relating to this issue is that the court "failed to instruct the jury that if they found the defendant was acting in an attempt to protect his property from a trespasser under the belief it was necessary or reasonable, his action would not be wanton or reckless." Although the charge seems quite sufficient if plaintiff's status were that of a trespasser, in the light of the legal principles set forth in the first portion of this opinion the evidence here is insufficient to support a finding that plaintiff was a trespasser on the occasion he was struck and injured by defendant.

The court permitted plaintiff's counsel, over defendant's objections, to cross-examine defendant as to whether he had assaulted other named persons on other specific but unrelated occasions. Clearly, the questions were permissible. Each was answered in the negative. Hence, defendant fails to show either error or prejudice in respect thereof.

Three persons who operated other fishing piers in the general area were offered as witnesses by defendant. Each testified, in accord with defendant's testimony, to the effect that activity such as swimming, surfboarding and boating in the ocean waters near a fishing pier seriously disturbed persons fishing from the pier and adversely affected the business of the operator thereof.

On cross-examination of one of these witnesses (Freeman), plaintiff's counsel was permitted, over defendant's objection, to ask: "(Y)ou never ran out on your pier and threw bottles and hit a man in the head with it, have you?" The witness answered: "No, sir." On cross-examination, plaintiff's counsel was permitted to ask, over defendant's objection, the second of these witnesses (Bradley): "You have never been out on your pier and thrown three bottles at some boy on a surfboard right under your pier, have you?" The witness answered: "No, sir." On cross-examination of the third of these witnesses (Snipes), the witness was permitted to testify without objection: "I have felt like throwing Coca-Cola bottles at people on surfboards, but I never have."

The thrust of the testimony of Freeman, Bradley and Snipes was in support of defendant's contention that activity such as that of plaintiff constituted a serious interference with the fishermen on defendant's pier and with defendant's business. The cross-examination tended to mitigate the impact of this testimony. Assuming, without deciding, that evidence responsive to the questions asked Freeman and Bradley was of doubtful relevance, the conclusion reached is that such evidence did not bear with sufficient significance on the outcome of the trial as to be deemed prejudicial to defendant. In our view, the assignments of error relating thereto are untenable.

Defendant having failed to show prejudicial error, the verdict and judgment of the court below will not be disturbed.

No error.

HUSKINS, J., took no part in the consideration or decision of this case.