6.2 Real Property Claims Against the State & Public Prescriptive Immunity (G.S. 1-35)

6.2 Real Property Claims Against the State & Public Prescriptive Immunity (G.S. 1-35)

A foundational doctrine of Anglo-American property jurisprudence is that the sovereign state enjoys broad immunity from claims arising from private encroachments and long-term occupancy. Under North Carolina law, while the General Assembly has enacted specific statutory avenues permitting title to ripen against certain State-owned vacant lands under extended timeframes (G.S. 1-35), the State and its political subdivisions maintain absolute prescriptive immunity over all lands held for public use, public rights-of-way, parks, and public trust resources (G.S. 1-45).

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|              NORTH CAROLINA LIMITATION PERIODS: PRIVATE VS. STATE           |
|                                                                             |
|   CLAIM AGAINST PRIVATE OWNER:                                              |
|   * With Color of Title (G.S. 1-38):          7 Continuous Years            |
|   * Without Color of Title (G.S. 1-40):      20 Continuous Years            |
|                                                                             |
|   CLAIM AGAINST THE STATE OF NORTH CAROLINA:                                |
|   * With Color of Title (G.S. 1-35(2)):      21 Continuous Years            |
|   * Without Color of Title (G.S. 1-35(1)):   30 Continuous Years            |
|                                                                             |
|   DEDICATED PUBLIC WAYS & PUBLIC TRUST (G.S. 1-45 / G.S. 146):              |
|   * Public Streets, Highways, Parks, Schools: IMMUNE (Infinity / No Bar)    |
|   * Submerged Lands & Navigable Waters:       IMMUNE (Public Trust)         |
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1. Statutory Limitations Against the State of North Carolina (G.S. 1-35)

At early common law under the prerogative doctrine of nullum tempus occurrit regi ("no time runs against the King/sovereign"), statutes of limitation did not apply to the State unless expressly named. North Carolina modified this absolute bar by enacting G.S. 1-35, which establishes extended limitation periods for real property actions brought by or against the State.

The Text and Structure of G.S. 1-35:

Under G.S. 1-35, the State of North Carolina will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of any right or title of the State, unless:

1. 30 Years without Color of Title (G.S. 1-35(1)): Such right or title has accrued within twenty-one (21) years before any action or proceeding, and the claimant (and those under whom they claim) has held continuous possession under color of title under known and visible boundaries.
2. 21 Years under Color of Title (G.S. 1-35(2)): The claimant has held continuous adverse possession under known and visible lines and boundaries for thirty (30) years, without color of title.

Rebuttable Presumption of State Title (G.S. 146-79):

In any civil action where title to real property is in dispute between a private citizen and the State of North Carolina, G.S. 146-79 establishes a statutory presumption that title is in the State, unless the private party demonstrates:

• A connected chain of title out of the State via a valid state land grant, patent, or deed; or
• Actual adverse possession for 30 years without color, or 21 years with color, under G.S. 1-35 (State v. Taylor, 222 N.C. 523, 23 S.E.2d 840 (1943); Rowe v. Cape Fear Lumber Co., 128 N.C. 301, 38 S.E. 896 (1901)).

[!NOTE] Application to Vacant and Unappropriated State Lands: The 21-year and 30-year limitation periods under G.S. 1-35 apply primarily to vacant, unappropriated state lands, swamp lands, or state-held properties managed by the Department of Administration under G.S. Chapter 146. They do not apply to dedicated public infrastructure or public trust resources.

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2. Public Prescriptive Immunity under G.S. 1-45

To safeguard public investments and infrastructure from private encroachment, the North Carolina General Assembly enacted G.S. 1-45, which establishes absolute statutory immunity against adverse possession for all public rights-of-way and dedicated civic properties.

Statutory Scope of G.S. 1-45:

"No person or corporation shall ever acquire any title to any part or portion of any public road, street, lane, alley, square, or public grounds by reason of any occupancy thereof or by encroaching upon or obstructing the same in any manner, and it shall not be lawful for any court to recognize or enforce any such title as having been acquired by prescription or adverse possession."

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|                   PROTECTED PUBLIC LAND CATEGORIES UNDER G.S. 1-45          |
|                                                                             |
|   1. STATE HIGHWAYS & ROADS      --> NCDOT fee or right-of-way corridors.   |
|   2. MUNICIPAL STREETS & ALLEYS  --> Dedicated, opened, or accepted streets.|
|   3. PUBLIC PARKS & SQUARES      --> Municipal, county, and state parks.    |
|   4. PUBLIC SCHOOL GROUNDS       --> Public school campuses and facilities. |
|   5. WATER ACCESS & BOAT RAMPS   --> Public trust access and landings.      |
|                                                                             |
|   LEGAL EFFECT: 50+ or 100+ years of private fence or building occupancy     |
|   transfers ZERO legal title. Encroachment remains an unlawful obstruction. |
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Landmark Judicial Applications of G.S. 1-45:

• Highway and Street Encroachments: A landowner whose building, fence, retaining wall, or parking area extends into an NCDOT highway right-of-way or a municipal street acquires no title, regardless of whether the structure has stood for 50, 75, or 100 years (Town of West Jefferson v. Edwards, 7 N.C. App. 110, 171 S.E.2d 337 (1969); City of Charlotte v. Pembroke Realty Co., 120 N.C. App. 848, 463 S.E.2d 581 (1995)).
• Unopened Dedicated Streets: Where a subdivision plat dedicating streets has been recorded and accepted, private lot owners who fence across the unopened street bed acquire no prescriptive rights or adverse title against the municipality or public (Town of Spencer v. Town of East Spencer, 351 N.C. 124, 522 S.E.2d 297 (1999)).

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3. Public Trust Lands and Submerged Lands (G.S. Chapter 146)

Under North Carolina common law and G.S. Chapter 146 (State Lands Act), submerged lands beneath navigable waters and the ocean foreshore (land between the mean high water mark and mean low water mark) are held by the State in trust for the public under the Public Trust Doctrine.

[!WARNING] Wharves, Piers, and Docks: Private docks, bulkheads, and piers constructed over state-owned submerged lands are authorized solely via revocable riparian easements under G.S. 146-12. Constructing and maintaining a dock for decades never creates private fee simple ownership over the underlying lake or riverbed.

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4. Municipal and County Property: "Public Use" vs. "Proprietary" Lands

Under North Carolina municipal law, real property held by local government bodies (counties, cities, towns, and school boards) is evaluated based on the character of its use:

The "Public Use" Immunity Rule (Governmental Capacity):

When a city or county holds title to land dedicated to or utilized for a governmental function or public use, that land is completely immune from adverse possession under G.S. 1-45 and common law (Turner v. Commissioners of Hillsboro, 127 N.C. 153, 37 S.E. 191 (1900)).

• Examples of Immune Public Uses: City hall, county courthouses, public schools, county detention centers, municipal water reservoirs, wastewater treatment plants, public parks, police/fire stations, public greenways, and stormwater drainage easements (G.S. 1-45.1).

Proprietary / Commercial Real Property (Narrow Exception):

In historic North Carolina jurisprudence, where a municipality held vacant real property in a purely proprietary capacity (such as land acquired through tax lien foreclosure held strictly for commercial resale and never dedicated to public use), such land was theoretically subject to adverse possession under the 20-year rule of G.S. 1-40 (City of Albemarle v. Security Bank & Trust Co., 106 N.C. App. 75, 415 S.E.2d 96 (1992)). However, the North Carolina General Assembly subsequently enacted G.S. 1-45.1, broadly expanding prescriptive immunity to all environmental, conservation, and infrastructure properties held by local governments.

5. Professional Surveying Protocol for Public Encroachments

When performing boundary retracement surveys abutting state highways, county school properties, municipal parks, or public trust water bodies, the Professional Land Surveyor must adhere to strict mapping and disclosure protocols under 21 NCAC 56.1600 and G.S. 47-30:

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|                 SURVEYING PROTOCOL: ENCROACHMENTS ON PUBLIC LAND            |
|                                                                             |
|   1. RETRACE TRUE PUBLIC BOUNDARY                                           |
|   --> Establish true right-of-way line or property line from official       |
|       NCDOT highway plans, recorded dedication plats, or municipal deeds.   |
|                                                                             |
|   2. LOCATE PHYSICAL OCCUPATION & ENCROACHMENTS                             |
|   --> Precisely locate encroaching fences, walls, driveways, or buildings   |
|       with perpendicular offsets and linear dimensions.                     |
|                                                                             |
|   3. DRAFT CERTIFIED BOUNDARY PLAT                                          |
|   --> Depict the true public boundary as the legal property line.           |
|   --> Show encroaching features with distinct graphic symbology.            |
|   --> Add a mandatory plat note:                                            |
|       "Note: Encroaching fence/structure onto public right-of-way is shown  |
|        for informational purposes. Under N.C. Gen. Stat. § 1-45, no title   |
|        or prescriptive right is acquired against public rights-of-way."     |
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[!CAUTION] A surveyor must never shift a client's boundary line outward to encompass an encroaching fence located within an NCDOT right-of-way or municipal park under the mistaken theory that long-term possession has ripened into title. Under G.S. 1-45, doing so violates North Carolina Minimum Standards of Practice (21 NCAC 56.1602) and creates severe boundary clouds.