Den on demise of Murry v. Sermon, 8 N.C. 56, 1 Hawks 56 (1820)

June 1820 · Supreme Court of North Carolina
8 N.C. 56, 1 Hawks 56
Den on demise of Murry v. Sermon

Den on demise of Murry v. Sermon.

From Hyde.

if a navigable late recede gradually and insensibly, tlie derelict' land belongs to the riparious proprietor: but if tlie rc¿cssion be sudden and sensible, such land belongs to the State, and, it seems, is the subject of entry under the act of 177?, c. 1.

The Defendant claimed title to the land in dispute under a patent bearing date in the year 1761, in which the boundaries were described as follows : “ Beginning at a poplar “ on the sontli side of Mailamuskeet Lake; thence running “ west, with the lake, 86 poles to a corner ; thence differ-e‘ ent courses and distances to a corner on the lake again ; “ and thence, with the lake, to tlie beginning.” The lessor of the Plaintiff had obtained a grant of late date, covering lands, as he alleged, between the Defendant’s lines and the lake, which had become dry by the recession of the lake since the patent to the Defendant was issued, as stated by the .■ Plaintiff. Both sides gave evidence of what had been actually run for the lines of the Defendant’s land ; and it was proved that the lake was a navigable water.

The cause was tried at November term, 1818, before Hall, J. while he was on the circuit bench ; and he directed the Jury, that whether the lake had in fact receded or not, it must still be considered a line of the Defendant’s grant. A verdict was accordingly found for the Defendant; and, upon a rule for a new trial, he ordered the case to be transmitted to the late. Supreme Court for an opinion, whether he had misdirected the Jury or not.

*57The ease was argued by Gaston, for the Plaintiff,

at January term, 1820, before the appointment of the Reporter, who did not hear his argument.

Jl. Henderson, for the Defendant,

now contended that the. charge of the Court below was. right. The case does not state that the recession of the lake wsn sudden, which would be necessary to enable the Plaintiff to recover. In the case of such recession only, does the derelict land belong to the, sovereign. — Harpy L. T. SO, Vs jure Maris; S Mass. Hep. 363. Rut if the water of the Sea, or of a navigable river, recode gradually and by small and almost imperceptible, degrees, the increase of the land belongs to the adjacent riparious proprietors. — -2 iloil. Mr. 170. Dyer 326. 5 Bac. Mr. 404, title, Prerogative, 2 Bl. Coin. 261, 262. 2 John. Rep. 322, 323. Jjarg. law Tr. 21. The case of the Homey-General v. Glr Ed. Turner, 2 Mo. 106, was decided upon the peculiar wording of the grant, and not on the question, whether the- king or the adjacent proprietor owned land formed by the gradual recession of the sea. But, at all events, the Plaintiff has no title to the land in dispute. It is not the subject of entry under our law. The act of 177?', c„ 1, prescribes that those lands only “ which had not been granted by the Crown, “ or by the lords proprietors, or which have accrued, or “ shall accrue, to this State by treaty or conquest,” may be entered: and these lands were acquired neither by treaty nor conquest.

Ham., Judge,

delivered his own opinion, and ¿hat of the Court :

I think that I was incorrect in my charge to the Jury below in this, that I directed them to find for ilie Defendant, whether the lake had receded or not\ for, in either case, it remained his bound;; ry. Now, if the recession of the lake was sudden and sensible/ the land which it had covered, anti which, by its dereliction, became dry, would not, *58and ought not, to be included in the Defendant’s grant. But., if the waters receded gradually and insensibly, the charge would be right, and the lake ought to be considered one of the Defendant’s boundaries.* It is, therefore, necessary that the fact be found, whether the waters of the lake receded imperceptibly or not from the land in dispute,$ because, on that question the rights of the parties depend. And to do that, the rule for a new trial must be made absolute.