Everett's Lake Corp. v. Dye , 262 N.C. App. 46 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-360
Filed: 16 October 2018
Richmond County, No. 15 CVS 000755
EVERETT’S LAKE CORPORATION, Plaintiff,
v.
LEWIS EDWARD DYE, JR., Defendant.
Appeal by Plaintiff from Amended Order entered 30 November 2017 by Judge
Richard T. Brown in Richmond County Superior Court. Heard in the Court of
Appeals 19 September 2018.
Anderson, Johnson, Lawrence & Butler, L.L.P., by Steven C. Lawrence, for the
Plaintiff-Appellant.
Lewis Edward Dye, Jr., pro se.
DILLON, Judge.
Plaintiff Everett’s Lake Corporation owns Everett’s Lake (the “Lake”), a non-
navigable lake in Richmond County. Defendant Lewis Edward Dye, Jr., owns a small
tract of land, comprising approximately two-tenths of an acre, which abuts the Lake.
This dispute concerns whether Defendant, through his chain of title in his small tract,
also owns the right to access the Lake.
I. Background
EVERETT’S LAKE CORP. V. DYE
Opinion of the Court
As of 1948, the Lake and the land around the Lake were all owned by the Lamb
family.
Defendant’s Chain of Title
In 1948, the Lambs conveyed a thirty-acre tract which abutted the Lake to the
Entwistles. In the Lamb’s 1948 deed to the Entwistles (the “1948 Deed”), the Lambs
not only conveyed the tract of land, but also conveyed certain rights to use the
adjacent Lake for non-commercial purposes. Specifically, the 1948 Deed stated as
follows:
The parties of the first part hereby convey unto the parties
of the second part riparian water rights in Everett’s Lake
on that portion of the above described property bounded by
the said Everett’s Lake. (This deed is made subject to this
restriction. The parties of the second part shall not use the
said Everett’s Lake for any commercial purpose.) It is
further understood and agreed that the parties of the first
part are hereby conveying riparian rights in Everett’s Lake
in connection with a tract of Land owned by the parties of
the second part consisting of about 30 acres and located on
the South side of the said Everett’s Lake.
[...]
TO HAVE AND TO HOLD the aforesaid tract or parcel of
land, and all privileges and appurtenances thereto
belonging, to the said parties of the second part, their heirs
and assigns, to their only use and behoof forever.
This deed was duly recorded in 1948.
In 1988, the Entwistles conveyed a 3.55-acre portion of their property abutting
the Lake to the Bakers. In 1989, the Bakers conveyed two-tenths of an acre abutting
the Lake from their 3.55-acre tract to the Threadgills. And in 2015, the Threadgills
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EVERETT’S LAKE CORP. V. DYE
Opinion of the Court
conveyed this two-tenths of an acre tract, abutting the Lake, to Defendant and his
wife. In each of the above-described conveyances, the grantor conveyed not only a
tract of land, but also riparian rights, as described in the 1948 Deed.
Plaintiff’s Chain of Title in the Lake
In 1958, ten years after the Lambs conveyed the thirty-acre tract to the
Entwistles, the Lambs conveyed the Lake itself to Plaintiffs by warranty deed. This
deed contained the following exceptions:
[E]xcept as to such riparian and other rights which any
firm or corporation or any person or persons may have in
and to Everett’s Lake and use thereof, irrespective of the
method by which such rights may have been acquired.
The Dispute
At some point, Plaintiff formed a fishing club (the “Club”), charging members
for the right to fish the Lake. In 2007, Plaintiff performed extensive work on the
Lake. Plaintiff had an expectation that adjacent landowners would join the Club and
pay annual dues of $500.00 if they desired to fish on the Lake. Upon the purchase of
his lot in 2015, Defendant began to fish the Lake without joining the Club. As a
result, Plaintiff brought a suit for civil trespass against Defendant. Defendant
answered and counterclaimed, seeking a declaration that he had the right to use the
Lake.
A bench trial was held in Richmond County Superior Court. The trial court
declared that Defendant did have valid riparian water rights “for the reasonable use
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EVERETT’S LAKE CORP. V. DYE
Opinion of the Court
and enjoyment of Everett’s Lake body of water by virtue of such rights acquired from
[D]efendant’s predecessors entitled to his real property.” Plaintiff timely appealed.
II. Standard of Review
We review the Amended Order and its findings of fact for competent,
supporting evidence. The trial court’s conclusions of law are reviewed de novo.
Weaverville Partners v. Town of Weaverville Bd. of Adj., 188 N.C. App. 55, 57, 654
S.E.2d 784, 787 (2008).
III. Analysis
The central issue in this matter is whether the trial court correctly determined
that Defendant, as the owner of his small tract, has “riparian rights” in the Lake,
which include the right to make personal use of the Lake. For the following reasons,
we affirm.
The trial court agreed with Defendant that Defendant has the right to fish the
Lake based on the “riparian right” originally granted to his predecessor in title in the
1948 Deed. Based on the language in the 1948 Deed, we also agree. We conclude
that “riparian rights” in the Lake were part of the “bundle of sticks” that the Lambs
conveyed to Defendant’s predecessor in title.1 As the owners of the Lake itself, the
1 Property has been described as a “bundle of sticks,” whereby various people/entities could
own different rights in the same real estate. See United States v. Craft, 535 U.S. 274, 278 (2002)
(describing property as a “bundle of sticks”). For example, one may own a life estate interest in certain
property, another may own a remainder interest in that property, another may have an easement to
use the property, the State has the right to condemn the property, and a bank may have a lien against
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EVERETT’S LAKE CORP. V. DYE
Opinion of the Court
Lambs had the right to exclude others from the Lake. See Hildebrand v. S. Bell Tel.,
219 N.C. 402, 408, 14 S.E.2d 252, 256 (1941) (recognizing that the right to own
property includes “the right to exclude others from its use”). When the Lambs
executed the 1948 Deed to Defendant’s predecessor in title, the Lambs conveyed
“sticks” representing fee simple absolute ownership in the thirty acres adjacent to the
Lake. The Lambs also essentially gave up a “stick,” namely their right to exclude
Defendant’s predecessor in title from using the Lake as a “riparian right” owner, so
long as these rights were used for non-commercial purposes. Therefore, when the
Lambs conveyed their fee simple interest in the Lake itself to the Plaintiff in 1958,
the Lambs could only convey the sticks they still owned in the Lake, which did not
include the “riparian rights” nor the “right to exclude” sticks already conveyed to
Defendant’s predecessor in title. In fact, the 1958 deed to the Plaintiff recognizes
that the fee simple interest in the Lake being conveyed by the Lambs was subject to
the riparian rights in the Lake already owned by others.
Plaintiff argues that the Lambs’ conveyance in the 1948 Deed of “riparian
water rights . . . on that portion of the [thirty-acre tract] bounded by [the Lake]” was
ambiguous and, therefore, did not convey any rights to use the Lake. We disagree.
Indeed, our Supreme Court has held as follows with regard to interpreting language
in a deed:
that property. See also In re Greens of Pine Glen, 356 N.C. 642, 651, 576 S.E.2d 316, 322 (2003)
(describing that property includes a “bundle of rights” which can be held by various parties).
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EVERETT’S LAKE CORP. V. DYE
Opinion of the Court
It is . . . a general rule that the deed must be upheld, if
possible, and the terms and phraseology of description will
be interpreted with that view and to that end, if this can
reasonably be done. The Court will effectuate the lawful
purposes of deeds and other instruments if this can be done
consistently with the principles of rules of law applicable.
N.C. Self Help v. Brinkley, 215 N.C. 615, 619, 2 S.E.2d 889, 892 (1939). We conclude
that the phraseology and terms used in the 1948 Deed clearly evince an intent to
convey the right to enjoy the Lake for non-commercial purposes: “[The Lambs] are
hereby conveying riparian rights in Everett’s Lake” and “[Defendant’s predecessor in
title] shall not use the said Everett’s Lake for any commercial purpose.” Our Supreme
Court has held that “riparian rights” include the right of a landowner “to make
reasonable use of the waters” adjacent to his land. Dunlap v. Carolina Power & Light,
212 N.C. 814, 818, 195 S.E. 43, 46 (1938). This right includes the right to fish. See,
e.g., Hampton v. N.C. Pulp, 223 N.C. 535, 548, 27 S.E.2d 538, 546-47 (1943)
(recognizing the right to fish is a riparian right).
Plaintiff further argues that the 1948 Deed from the Lambs to the Entwistles
only created an “easement in gross.” That is, Plaintiff argues, the 1948 Deed only
conveyed a personal right to the Entwistles to use the Lake which was not
transferable to successors in title. We disagree. We conclude, rather, that the
language of the 1948 Deed did not convey an easement in gross, but rather a right
which ran with the portion of the thirty-acre tract which abutted the Lake.
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EVERETT’S LAKE CORP. V. DYE
Opinion of the Court
The 1948 Deed grants riparian rights “on that portion of the above described
property bounded by the said Everett’s Lake.” The 1948 Deed states that the rights
were being conveyed “in connection with a tract of land owned by the parties of the
second part consisting of about 30 acres and located on the South side of the said
Everett’s Lake.” Finally, the 1948 Deed states that the grant was to Defendant’s
predecessor, “their heirs and assigns to their only use and behoof forever.” The
language in the 1948 Deed indicates an intention on behalf of the Lambs for the
riparian rights to run with the land, at least that portion of the thirty-acre tract which
directly abutted the Lake. Therefore, we affirm that Defendant does have valid
riparian rights in the Lake, including the right to fish.
We note that the trial court did not base its ruling on the “public trust
doctrine.” Indeed, Defendant made no argument that his right to fish the Lake stems
from the application of the public trust doctrine. The public trust doctrine applies
only to those bodies of water which are determined to be navigable. See, e.g, State ex
rel. Rohrer v. Credle, 322 N.C. 522, 526, 369 S.E.2d 825, 827-28 (1988). And the trial
court concluded that the Lake is not a “navigable” lake but rather a lake that is
privately owned by Plaintiff. This determination is not in dispute on appeal.
Further, though not argued by either party, we recognize that the trial court’s
holding is not based on a theory that Defendant’s riparian rights arise from the
common law. Our Supreme Court has held that where the boundary of a tract of land
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EVERETT’S LAKE CORP. V. DYE
Opinion of the Court
is the edge of a non-navigable swamp, there is no “common law” right of that land-
owner to use the swamp. See Kelly v. King, 225 N.C. 709, 714, 36 S.E.2d 220, 223
(1945). And, here, Defendant’s deed cites the edge of the Lake, which the trial court
found to be non-navigable, as one of the boundaries. Kelly, though, is not applicable
to the present case as Defendant’s right springs from an express grant contained in
his chain of title, not from the operation of some common law principle.
IV. Conclusion
The trial court correctly concluded that Defendant has certain riparian rights
to make reasonable use and enjoyment of the Lake for non-commercial purposes
based on the grant of “riparian rights” in Defendant’s chain of title.
AFFIRMED.
Judges ELMORE and DAVIS concur.
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