7.1 Navigability, The Public Trust Doctrine & Riparian Rights (G.S. Chapter 146)

7.1 Navigability, The Public Trust Doctrine & Riparian Rights (G.S. Chapter 146)

In North Carolina boundary retracement, watercourses present unique legal and physical challenges for the Professional Land Surveyor (PLS). Unlike static upland boundaries defined by monuments and linear measurements, water boundaries are dynamic natural monuments governed by a specialized body of statutory law, common law doctrines, and constitutional public trust principles. Determining the legal boundary of a riparian or littoral tract requires the surveyor to first establish the legal classification of the waterbody—specifically, whether the water is legally navigable, floatable, or non-navigable—because navigability dictates whether the bed is owned by the State in public trust or held in private fee simple.

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|         NORTH CAROLINA WATER CLASSIFICATION & SUBMERGED BED OWNERSHIP       |
|                                                                             |
|   [NAVIGABLE WATERS (IN LAW & FACT)]                                        |
|   --> Sea vessels, commercial craft, or general recreational boating.       |
|   --> Submerged bed owned by the STATE OF NORTH CAROLINA in Public Trust.   |
|   --> Private riparian title stops at the Mean High Water Mark (MHWM)       |
|       or Normal High Water Line. G.S. 146-3 bars private land grants.       |
|                                                                             |
|   [NON-NAVIGABLE STREAMS & WATERCOURSES]                                    |
|   --> Creeks, runs, branches incapable of commercial/recreational floatage. |
|   --> Submerged bed owned by RIPARIAN UPLAND OWNERS to the thread           |
|       of the stream (filum aquae / geometric centerline).                   |
|   --> Private grants of submerged bed are valid and recognized.             |
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1. Evolution of the Navigability Standard in North Carolina

To understand modern North Carolina water boundary law, the surveyor must appreciate the state's historical departure from English common law.

The English Common Law Rule (Tidal Ebb and Flow)

Under English common law, waters were divided into two strict categories:

1. Navigable Waters (Tidewaters): Waters where the astronomical tide ebbed and flowed (flux and reflux). In all tidal waters, the Crown held title to the submerged soil below high water in trust for the public.
2. Non-Navigable Waters (Non-Tidal): All freshwater rivers and streams above the reach of the tide, regardless of their actual depth or commercial utility. In non-tidal streams, the bed was owned by the abutting riparian landowners to the centerline (filum aquae).

North Carolina's Adoption of "Navigability in Fact"

Because England is an island with short rivers where tidal influence roughly coincides with commercial navigation, the tidal test functioned well there. However, North Carolina possesses vast inland sounds (Albemarle, Pamlico), broad freshwater coastal rivers (Roanoke, Neuse, Cape Fear, Chowan), and large inland watercourses that are hundreds of miles above the reach of the tide yet fully capable of supporting extensive commercial shipping and waterborne travel.

Early in its statehood, the North Carolina Supreme Court recognized the geographical absurdity of the English rule and formally rejected the tidal test in a series of landmark decisions:

• Wilson v. Forbes, 13 N.C. 30 (1828): The Court held that an inland freshwater river capable of navigation by sea vessels is navigable in law, and the bed cannot be granted to private individuals.
• Collins v. Benbury, 25 N.C. 277 (1842) & 27 N.C. 118 (1844): The Supreme Court established that Albemarle Sound, although non-tidal freshwater, is a navigable waterbody, and private grants of its submerged bed are void.
• State v. Glen, 52 N.C. 321 (1859): The Court classified North Carolina waters into a distinct three-tier hierarchy:
  1. Navigable in Law: Waters capable of navigation by sea-going vessels (submerged beds held in trust by the State; private grants prohibited).
  2. Floatable / Navigable for Small Boats: Waters capable of floating logs, rafts, or small commercial flatboats (bed may be owned privately, but burdened with a public navigational easement).
  3. Unnavigable Streams: Small creeks and branches incapable of floating boats or logs (beds owned privately in fee simple without public servitude).

The Modern North Carolina Navigability Standard

Modern North Carolina jurisprudence has consolidated these historical distinctions into a functional "navigability in fact" test (State ex rel. Rohrer v. Credle, 322 N.C. 522, 369 S.E.2d 825 (1988); Gwathmey v. State through Dept. of Environment, Health, and Natural Resources, 342 N.C. 287, 464 S.E.2d 674 (1995); Fish House, Inc. v. Clarke, 204 N.C. App. 130, 693 S.E.2d 208 (2010)).

[!IMPORTANT] The Modern Test for Navigability in NC: Water is navigable in fact if, in its natural state without artificial impoundment or channelization, it is capable of being used for trade and travel by watercraft. The test does not require large ocean shipping; capability of supporting commercial fishing vessels, shallow-draft barges, or sustained recreational boating (such as motorboats, canoes, or kayaks) establishes navigability in fact under North Carolina law.

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2. The Public Trust Doctrine & Submerged Bed Ownership (G.S. Chapter 146)

The Public Trust Doctrine is an ancient legal principle dating back to Roman civil law (the Institutes of Justinian) and English common law, recognizing that certain natural resources—specifically navigable waters and their submerged lands—are so essential to society that they must remain open to the public and cannot be alienated into absolute private ownership.

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|                      THE PUBLIC TRUST DOCTRINE IN NC                        |
|                                                                             |
|   [JUS PUBLICUM (Public Right)]          [JUS PRIVATUM (Proprietary Right)] |
|   * Public right of navigation,          * Qualified riparian rights of     |
|     fishing, hunting, swimming,            upland access and wharfing out.  |
|     and environmental preservation.      * Always subordinate to the        |
|   * Vested permanently in the STATE.       dominant Jus Publicum.           |
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The State Lands Act (G.S. Chapter 146)

Under G.S. 146-3, the General Assembly codified the state's public trust obligations regarding sovereign submerged lands:

"No lands submerged by the waters of the State, including the ocean, any sound, bay, river, creek, or canal, shall be conveyed in fee simple by any grant or deed from the State, except as authorized by G.S. 146-12."

Any historical state land grant or patent that purports to convey fee simple title to the submerged bed of a navigable watercourse is void ab initio (from the beginning), because the state executive officers lacked statutory and constitutional authority to convey public trust resources (State ex rel. Rohrer v. Credle; Gwathmey v. State).

Landmark North Carolina Public Trust Precedents

1. State ex rel. Rohrer v. Credle, 322 N.C. 522, 369 S.E.2d 825 (1988):
   • Facts: A private claimant asserted exclusive private ownership over an oyster bed in the navigable waters of Pamlico Sound, tracing title to an 18th-century state grant.
   • Holding: The North Carolina Supreme Court held that submerged lands under navigable waters are held in trust by the State for all citizens. A private party cannot acquire exclusive fishery or submerged land rights in navigable waters by grant, custom, or prescription without explicit, unambiguous statutory authorization from the General Assembly.
2. Gwathmey v. State through Dept. of Environment, Health, and Natural Resources, 342 N.C. 287, 464 S.E.2d 674 (1995):
   • Facts: Owners of coastal marshlands in Bald Head Island and Dare County asserted fee simple ownership over submerged marsh bottoms based on historical state grants.
   • Holding: The Supreme Court clarified the evidentiary burden: submerged lands under navigable waters are presumed to be owned by the State under the public trust doctrine. While certain marshlands granted under specific pre-1959 legislative acts could convey private proprietary title, such private ownership remains strictly burdened with the public trust servitude, preserving public rights of navigation, fishing, and recreation.

Prescriptive Immunity under G.S. 1-45.1

Private landowners frequently attempt to claim title to state submerged lands or public water access corridors based on decades of uninterrupted dock occupancy or dredging. Under G.S. 1-45.1, the General Assembly enacted absolute statutory immunity against adverse possession for all public trust resources:

• No person or corporation can acquire title by adverse possession or prescription to any real property or interest in land held for public trust, conservation, or environmental purposes.
• Building a private dock, seawall, or boatlift over navigable waters never ripens into fee simple ownership of the underlying riverbed, regardless of whether the structure has existed for 50, 100, or 200 years.

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3. Scope of Riparian and Littoral Rights in North Carolina

While the State owns the submerged beds of navigable waters, the owners of the abutting uplands possess valuable property rights known as riparian rights (for land abutting rivers and streams) or littoral rights (for land abutting oceans, sounds, and lakes). These rights are appurtenant to the upland fee title and pass automatically with a deed conveyance of the upland tract, even if not specifically enumerated.

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|                     CORE RIPARIAN RIGHTS IN NORTH CAROLINA                  |
|                                                                             |
|   1. RIGHT OF ACCESS             --> Access to the navigable channel from   |
|                                      every point of upland frontage.        |
|   2. RIGHT TO WHARF OUT          --> Construct docks, piers, and pilings    |
|       (G.S. 146-12)                  out to deep water (line of navigation).|
|   3. RIGHT TO ACCRETIONS         --> Ownership of gradual natural deposits  |
|                                      and relictions attached to shoreline.  |
|   4. REASONABLE USE OF WATER     --> Withdraw water for domestic/commercial |
|                                      purposes without unreasonable injury.  |
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1. Right of Access to Navigable Water

The primary riparian right is direct access to the navigable portion of the watercourse (Capune v. Robbins, 273 N.C. 581, 160 S.E.2d 881 (1968)). An upland owner cannot be landlocked from the water by third parties or neighboring structures.

2. The Right to "Wharf Out" (G.S. 146-12)

Under G.S. 146-12 and North Carolina common law, riparian owners hold a qualified easement to construct wharves, piers, docks, and bulkheads extending from their upland over state-owned submerged beds out to the line of navigation (deep water), subject to key statutory and regulatory restrictions:

• Riparian Easement, Not Fee Title: A pier permit or riparian easement under G.S. 146-12 conveys only a non-possessory right of access; it does not convey fee simple title to the submerged river bottom.
• Non-Obstruction of Navigation: Docks and wharves must not unreasonably obstruct public navigation or encroach into public navigation channels.
• Riparian Corridor Allocations: Docks must remain within the owner's allocated riparian corridor (projected perpendicular to the shoreline) and maintain required lateral setbacks (typically 15 feet under CAMA / 15A NCAC 07H .0208) from adjoining property line extensions.

3. The Doctrine of Reasonable Use (Natural Flow vs. Reasonable Use)

In freshwater watercourses, North Carolina applies the Reasonable Use Doctrine regarding water withdrawals and alterations:

• Each riparian proprietor has an equal right to make reasonable use of the water flowing past their land for domestic, agricultural, or commercial purposes.
• A use is unreasonable if it causes substantial material injury to downstream riparian owners by materially diminishing the volume of flow, diverting the channel, or polluting water quality (Dunlap v. Carolina Power & Light Co., 212 N.C. 814, 195 S.E. 43 (1938); Pernell v. City of Henderson, 220 N.C. 79, 16 S.E.2d 449 (1941)).

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4. Professional Land Surveyor Protocols on Navigable Waters

When performing boundary retracement surveys of tracts bounded by navigable rivers, sounds, or the ocean, the Professional Land Surveyor must comply with 21 NCAC 56.1600 and established boundary retracement law:

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|                 SURVEYOR'S RETRACEMENT CHECKLIST: NAVIGABLE WATERS          |
|                                                                             |
|   1. ESTABLISH NAVIGABILITY                                                 |
|   --> Determine whether watercourse supports trade/boating in natural state.|
|                                                                             |
|   2. LOCATE LEGAL WATER BOUNDARY (MHW OR NORMAL HIGH WATER)                 |
|   --> On tidal waters: Locate Mean High Water Mark (MHWM) via tidal datum.  |
|   --> On non-tidal navigable rivers: Locate Normal High Water Line / Bank.  |
|                                                                             |
|   3. SURVEY MEANDER TIE LINES (TRAVERSE)                                    |
|   --> Establish mathematically closed traverse with tie courses to water.   |
|   --> Plat must clearly distinguish between the mathematical meander line   |
|       and the true natural water boundary.                                  |
|                                                                             |
|   4. LOCATE ENCROACHMENTS & RIPARIAN STRUCTURES                             |
|   --> Locate all docks, piers, bulkheads, and boathouses with offsets       |
|       from projected riparian lot lines.                                    |
|                                                                             |
|   5. ADD MANDATORY PLAT DISCLOSURE                                          |
|   --> "Note: Property line follows the Mean High Water Mark / natural       |
|        meanders of the watercourse. Traverse lines along the shore are for  |
|        survey closing purposes only and do not define the property line."   |
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[!CAUTION] Meander Lines Are NOT Boundary Lines: In both federal and North Carolina surveying law (Cherry v. Slade; Kelly v. King), a surveyor's meander line run along a navigable river or lake is a mathematical traverse line established solely for measuring area and closing the survey. The true legal boundary is the water's edge / high water mark, not the straight meander course on the plat.