Gaither v. Albemarle Hospital, Inc. , 235 N.C. 431 ( 1952 )

70 S.E.2d 680 (1952) 235 N.C. 431

GAITHER et al.
v.
ALBEMARLE HOSPITAL, Inc., et al.

No. 29.

Supreme Court of North Carolina.

April 30, 1952.

Worth & Horner, Elizabeth City, for plaintiffs appellees.

McMullan & Aydlett, and Wilson & Wilson, all of Elizabeth City, for defendants appellants.

WINBORNE, Justice.

Appellants, the defendants, raise, and debate in their brief filed here on this appeal, four questions as arising upon assignments of error on which they rely. We hold, however, that on the record and case on appeal now considered, prejudicial error is not made to appear.

The first question presented is this: "Should the court have disposed of defendants' plea of adverse possession prior to entering an order of compulsory reference?" As to this, if it be conceded that the plea as made be sufficient to set up a good plea in bar to plaintiffs' cause of action, "the rule of practice in an orderly course of procedure" would be to have such defense disposed of before ordering a compulsory reference. Com'rs of Wake v. City of Raleigh, 88 N.C. 120, and numerous other cases.

Such plea raises an issue of fact which the pleaders are entitled to have tried by a jury. This right may be waived. In a consent reference this right is waived, and this issue, as well as all others raised by the pleadings, may be decided by the referee. On the other hand, in a compulsory reference the right to have this issue tried by a jury is not waived, and this issue should be settled by a jury before an order of reference is made. See McIntosh N.C. P. & P., Sec. 523.

But if when a good plea in bar is pleaded the court should order a reference, a party may object, and "appeal at once, if he be so minded, or he may rely upon his objection, by reserving his exception, and appeal from the final judgment", Walker, J., in Pritchett v. Greensboro Supply Co., 153 N.C. 344, 69 S.E. 249; Baker v. J. J. Edwards & Son, 176 N.C. 229, 97 S.E. 16, and other cases.

Indeed, if the objectors elect to take the latter course, their right to have the issue based on the plea in bar tried by a jury, may be waived. Booker v. Town of Highlands, 198 N.C. 282, 151 S.E. 635; Brown v. E. H. Clement Co., 217 N.C. 47, 6 S.E.2d 842, and cases cited.

In Booker v. Town of Highlands, supra, [198 N.C. 282, 151 S.E. 637] Stacy, C. J., states clearly and concisely the procedure which must be pursued in a compulsory reference in order to preserve the right to a trial by jury, (the first two requirements being pertinent to case in hand), as follows:

"1. Object to the order of reference at the time it is made * * *.

"2. On the coming in of the report of the referee, if it be adverse, file exceptions in apt time to particular findings of fact made by the referee, tender appropriate issues based on the facts pointed out in the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered. * * *"

And "a failure to observe any one of these requirements may constitute a waiver of the party's right to have the controverted matters submitted to a jury and authorize the judge to pass upon the exceptions without the aid of a jury." McIntosh Sec. 525.

Applying this procedure to the case in hand, it appears that while defendants excepted to the order of reference, and filed exception to certain adverse findings of fact and conclusions of law made by the referee, yet they did not tender any issues, nor did they demand a jury trial on any issue. Hence, the right to have the issue raised by their plea in bar tried by a jury is waived. Indeed they offered no evidence in support of such issue. And the rulings of the judge, made upon exceptions to the report of referee, while not expressly so stated, are tantamount to holding against defendants on their plea in bar.

The second question is stated by appellants in these words: "Does the recordation of the Riverside Land Company plat, showing a strip of land to the east of Riverside Avenue as undivided land, constitute a dedication of the strip for such a purpose as to give the plaintiffs a special property right therein sufficient to support their original complaint?"

In this connection, it is appropriate to note that, in this State, the findings of fact made by referee, when there is evidence tending to support them, if affirmed by the judge, are conclusive on appeal. See Frey v. Middle Creek Lumber Co., 144 N.C. 759, 57 S.E. 464; Henderson v. McLain, 146 N.C. 329, 59 S.E. 873; Lexington Mirror Co. v. Philadelphia Casualty Co., 153 N.C. 373, 69 S.E. 261.

And the question here posed by appellants is predicated upon assignments of error based upon exceptions to conclusions of law approved by the judge and to conclusions of law made by the judge. Hence the pivotal question is whether the findings of fact support these conclusions of law. The Court is of opinion, and holds that they do support such conclusions of law.

It is a settled principle in this State that when the owner of land, located within or without a city or town, has it subdivided and platted into lots, streets, alleys, and parks, and sells and conveys the lots or any of them with reference to the plat, nothing else appearing, he thereby dedicates the streets, alleys, and parks, and all of them, to the use of the purchasers, and those claiming under them, and of the public. See Home Real Estate Loan & Ins. Co. v. Town of Carolina Beach, 216 N.C. 778, 7 S.E.2d 13, where pertinent decisions of this Court are assembled. Among the cases cited are: Conrad v. West End Hotel & Land Co., 126 N.C. 776, 36 S.E. 282; Collins v. Asheville Land Co., 128 N.C. 563, 39 S.E. 21; Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 47 S.E. 462; Green v. Miller, 161 N.C. 24, 76 S.E. 505, 44 L.R.A., N.S., 231; Sexton v. Elizabeth City, 169 NC. 385, 86 S.E. 344; Wittson v. Dowling, 179 N.C. 542, 103 S.E. 18. See also Foster v. Atwater, 226 N.C. 472, 38 S.E.2d 316.

In the Collins case, supra, [128 N.C. 563, 39 S.E. 22] it is held "that a map or plat, referred to in a deed, becomes a part of the deed as if it were written therein, and that, therefore, the plan indicated on the plat is to be regarded as a unity, and the purchaser of a lot acquires a right to have all and each of the ways and streets on the plat or map kept open." To support this view the Court quotes with approval the following from Elliott on Roads, Sec. 120: "It is not only those who buy lands or lots abutting on a street or road laid out on a map or plat that have a right to insist upon the opening of a street or road, but, where streets and roads are marked on a plat, and lots are bought and sold with reference to the map or plat, all who buy with reference to the general plan or scheme disclosed by the plat or map acquire a right to all the public ways designated thereon, and may enforce the dedication. The plan or scheme indicated on the map or plat is regarded as a unity, and it is presumed, as well it may be, that all the public ways add value to all lots embraced in the general plan or scheme."

The reason for the rule, as stated in Green v. Miller, supra, [161 N.C. 24, 76 S.E. 507] is that "the grantor, by making such a conveyance of his property, induces the purchasers to believe that the streets and alleys, squares, courts, and parks will be kept open for their use and benefit; and having acted upon the faith of his implied representations, based upon his conduct in platting the land and selling accordingly, he is equitably estopped, as well in reference to the public as to his grantees, from denying the existence of the easement thus created."

In this connection attention is directed to Annotation appearing in 7 A.L.R. 2d 607, on the subject "Conveyance of lot by reference to map or plat as giving purchaser rights in indicated streets, alleys, and areas not abutting his lot." The annotator states that in those jurisdictions in which the question has arisen, the majority adhere to the "broad view" or "unity" rule, "that a grantee to whom a conveyance is made by reference to a map or plat acquires a private right, frequently designated as an easement to the use of all the streets and alleys delineated on such map or plat," as well as of a "park or other open area" delineated thereon. And the annotator classifies decisions of the Supreme Court of North Carolina as holding to the "broad view" or "unity" rule.

In this connection, it is noted that Pasquotank River is a navigable stream. And navigable waters constitute a public highway, which the public is entitled to use for the purposes of travel either for business or pleasure. Cromartie v. Stone, 194 N.C. 663, 140 S.E. 612; State ex rel. Lyon v. Columbia Water Power Co. 82 S.C. 181, 63 S.E. 884, 22 L.R.A., N.S., 435, 129 Am. St. Rep. 876, 17 Ann.Cas. 343; 56 Am.Jur. 672—Waters Sec. 209.

However, the right of navigation gives no license to go and come through and over the riparian owner's land without "let or hindrance". Similarly, those navigating a river have no right, as incident to the right of navigation, to land upon and use the bank at a place other than a public landing without the consent of the owner, for the banks of a navigable stream are private property. 56 Am.Jur. 674—Waters Sec. 213.

Moreover, in Bond v. Wool, 107 N.C. 139, 12 S.E. 281, 284, this Court said: "In the absence of any special legislation on the subject, a littoral proprietor and a riparian owner, as is universally conceded, have a qualified property in the waterfrontage 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 water." See G.S. § 146-6.

Again in the same case, 107 N.C. at page 149, 12 S.E. at page 285, it is declared: "This qualified property, that according to well-settled principles, as interpreted in nearly all of the highest courts of the United States, is necessarily incident to riparian ownership, extends to the submerged land 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." These principles were applied in O'Neal v. Rollinson, 212 N.C. 83, 192 S.E. 688. See also Atlantic & N. C. R. Co. v. Way, 169 N.C. 1, 85 S.E. 12.

Hence, normally, the right of access to navigable waters over adjacent lands held under private ownership is vested exclusively in the owner of such lands, and can be exercised by another only by virtue of a grant or license by such owner. It is a property right, analogous, it is said, to an abutting owner's right of access to highways on land. 56 Am.Jur. 677, Waters Sec. 216.

Applying these principles to the case in hand, the Riverside Land Company, being a riparian owner of land fronting on Pasquotank River, a navigable stream, shown on, and in accordance with, the plat by which it sold lots, had the right to grant to purchasers of such lots access over its water frontage land to the waters of the river. And the conclusions of law on the facts found appear logical.

The third and fourth questions as stated by appellants are these:

(3) "Did the court err in allowing the plaintiffs to amend their complaint, and set up a taxpayer's action, after all the evidence had been taken and the case was under consideration by the referee?"

(4) "Does the construction of a park on the bluff, beach and shallow water east of Riverside Avenue constitute a public nuisance, and result in such an expenditure of funds for an unlawful purpose, the prevention of which the plaintiffs would be entitled to maintain a taxpayer's action?"

In this connection, the General Assembly has declared in G.S. § 14-133 that "if any person shall erect artificial islands or lumps in any of the waters of the state east of the Atlantic Coast Line Railroad running from Wilmington to Weldon * * to the North Carolina-Virginia state boundary * * *, he shall be guilty of a misdemeanor." The Court will take judicial notice of the fact that the Pasquotank River is east of the above railroad as so expressly located.

Moreover, we find it stated in 56 Am.Jur. 680, Waters 218, that, navigable waters being public highways, it follows, under elementary principles of the common law, that any unreasonable obstruction thereof, or of navigation thereon, is unlawful. In general, the rule is that all material obstructions to navigation not authorized by the proper governmental authority are public nuisances. See Farmers' Co-operative Mfg. Co. v. Albemarle & R. R. Co., 117 N.C. 579, 23 S.E. 43, 29 L.R.A. 700; Reyburn v. Sawyer, 135 N.C. 328, 47 S.E. 761, 65 L.R.A. 930; Pedrick v. Raleigh & P.S. R. Co. 143 N.C. 485, 55 S.E. 877, 10 L.R.A., N.S., 554. Compare Broocks v. Muirhead, 223 N.C. 227, 25 S.E.2d 889.

Indeed, it is stated that it is not necessary that obstructions in the way of navigation should have actually interfered with, or done it in order to render such obstructions nuisances; it is sufficient if navigation was thereby rendered less convenient, secure, and expeditious. The fact that the obstruction may be a source of public benefit has been held not to relieve it of its character as a nuisance.

Hence in the light of the decision here made in respect of the second question, as hereinabove stated, and of the principle last above stated, if there be error in allowing the amendment to which objection is made, it does not appear to be prejudicial to defendants, the appellants.

In conclusion, and after giving due consideration to argument advanced and authorities cited, the judgment from which appeal is taken is affirmed.

BARNHILL, J., dissents on the question of dedication.