January 4, 1996
Ms. Lillian Salcines Assistant District Attorney Thirteenth Prosecutorial District Brunswick County Courthouse Bolivia, N.C. 28422
RE: Advisory Opinion: Effect of Accretion Upon Town of Holden Beach’s Municipal Boundary
Dear Ms. Salcines:
By letter received September 8, 1995, you asked whether the location where an incident occurred between the Holden Beach Police Department and Albert F. McLaurin was within the legal jurisdiction of the Holden Beach Police Department to enforce the Town’s recreational fire ordinance. This opinion will advise your office as to the applicable law regarding municipal boundaries and the legal effect of natural forces upon them. Our advice should enable you to then determine whether the Town’s police officers acted within their legal jurisdiction based upon the facts compiled by your office and the State Bureau of Investigation.
SUMMARY Based upon our review of the factual situation presented and applicable case law, it is our opinion that when the Town of Holden Beach ("Town") was incorporated in February, 1969, the incident’s location ("SITE") was not within the Town’s corporate territory. However, since 1969, natural forces, primarily the Atlantic Ocean and Shallotte Inlet’s westward littoral drift, have extended by accretion the western end of Holden Beach island significantly. Since the Town’s western boundary is the low water mark of Shallotte Inlet, the Town’s corporate territory has likewise been extended over the past twenty-five years along with the low water mark. The actual physical location of the low water mark, and thus the location of the Town’s western boundary, is properly a matter for the Town to investigate and determine.
In preparing this advisory opinion, we reviewed the Town’s charter and map referenced therein. Together with staff from the N.C. Geodetic Survey’s Coastal Survey Unit ("NCGS"), we reviewed a series of historical aerial photographs of the subject area, dating from 1968, as well as more recent aerial photographs taken in October, 1995, by Agent John Hawthorne of the State Bureau of Investigation ("SBI"). The SBI photographs depicted, on the ground, the location of the McLaurin incident, as reported by Agent Hawthorne. We encourage you to use the SBI photographs in assisting the Town in its determination of its western boundary. For your convenience, we have also enclosed copies of certain historical aerial photographs depicting how the SITE migrated over time, labeled Attachments 1-7; a copy of the Town of Holden Beach’s incorporation papers, including the map of the incorporated territory; and, a copy of the U.S. Geological Survey’s Quadrangle Maps of Holden Beach and Shallotte Inlet.
I. Factual Background The incident occurred on August 6, 1995, at the westernmost end of Holden Beach, at Shallotte Inlet, near an area commonly referred to as "Monks Island." It arose when police attempted to enforce the Town’s recreational fire ordinance upon certain individuals gathered for a cookout.
Holden Beach police arrested Mr. McLaurin and charged him with resisting a public officer
(N.C. Gen. Stat. §14-223), assault on a government official (N.C. Gen. Stat. §14-33), and two counts of injury to personal property (N.C. Gen. Stat. §14-160). Mr. McLaurin was also charged with "carelessness with fire," in violation of Holden Beach Ord. No. 3-4.3.
As an initial matter, it should be clarified that the incident did not occur on Monks Island. Based upon our review of the SBI aerial photographs and a site visit, the incident occurred along a strip of high ground beach attached to Holden Beach island, not Monks Island. Currently, several small drains run slightly northeast of the SITE, separating it from Monks Island at high tide. Although the distance between Monks Island and Holden Beach island has decreased significantly over the past twenty-five years due to natural forces, the two islands currently do not have a continuous high ground connection.
The N.C. Municipal Board of Control issued the corporate charter for the Town of Holden Beach on February 14, 1969. The Town was endowed "with all the powers and subject to all the laws governing municipal corporations set forth in the General Statutes of North Carolina." N.C. Gen. Stat. §160A-21 provides that the town’s boundaries "shall be those specified in its charter with any alterations that are made from time to time in the manner provided by law or by local act of the General Assembly."
The Town’s charter describes the incorporated territory as follows: BEGINNING at a point on the West bank of Lockwoods Folly Inlet where the low-water mark of the same intersects the Atlantic Ocean; runs thence along the low-water mark of the Atlantic Ocean in a westwardly direction approximately 43,200 feet to a point on the low-water mark of the East bank of Shallotte Inlet where the same intersects the Atlantic Ocean; runs thence along the low-water mark of Shallotte Inlet in a northwardly direction approximately 5,280 feet to where the same intersects the center line of the Intra-Coastal Waterway Canal; runs thence in an eastwardly direction and with the center line of said Intra-Coastal Waterway Canal approximately 43,500 feet to a point in the West bank of Lockwoods Folly Inlet where the low-water mark of the same intersects the Intra-Coastal Waterway Canal; runs thence along the low-water mark of Lockwoods Folly Inlet in a southerly direction approximately 2,960 feet to the place and point of beginning, containing an island beach approximately eight miles long, the same including what is known as Holden Beach, Robinson Beach, and Colonial Beach, and is bounded on the East by Lockwoods Folly Inlet; on the South by the Atlantic Ocean; on the West by Shallotte Inlet; and on the North by the center line of the Intra-Coastal Waterway Canal. A map of said territory to be incorporated is attached hereto and made a part hereof. (emphasis added)
II. Analysis Police ordinances operate, of course, within the territory of the municipal corporation. McQuillin, Mun. Corp. §24.56 (3rd Ed. 1989). Under the State’s common law, a city or town cannot enforce an ordinance, enacted pursuant to its police power, outside its corporate territory, unless the General Assembly has granted such power. "While the Legislature may confer upon a municipal corporation the power to enact ordinances having effect in territory contiguous to the corporation, in the absence of the grant of such power, a city or town, may not, by its ordinance, prohibit acts outside its territorial limits or impose criminal liability therefor." State v. Furio, 267
N.C. 353, 148 S.E.2d 275 (1966), citing, Smith v. Winston-Salem, 247 N.C. 349, 354, 100 S.E.2d 835 (1957); Holmes v. Fayetteville, 197 N.C. 740, 150 S.E. 624 (1929); State v. Eason, 114 N.C. 787, 19 S.E. 88 (1894). Since police ordinances operate within the territory of the municipal corporation, the fundamental issue presented is whether the SITE lies within the Town’s corporate territory. Outlined below are summaries of the Town’s boundaries from 1969 through the present, together with the applicable legal doctrines regarding the effect of accretion upon municipal boundaries. Applying these doctrines will enable you to determine whether the SITE is within the police jurisdiction of the Town of Holden Beach.
A. Town’s Corporate Boundaries at Time of Incorporation in 1969
N.C. Gen. Stat. §160A-4 provides that a town charter must be "broadly construed and grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect . . ." Subject to this rule regarding the broad construction afforded corporate charters, when defining the boundaries of a municipality, "[t]he same rules of construction apply as in the case of a grant from one individual to another." State v. Eason, 114 N.C. at 791.
The charter describes the Town’s western boundary as running along the low water mark of the Atlantic Ocean westwardly approximately 43,200 feet to a point on the low water mark of the east bank of Shallotte Inlet where it intersects the Atlantic Ocean; and, thence along the low water mark of Shallotte Inlet "northwardly" approximately 5,280 feet to where it intersects the AIWW. The description later provides that the western boundary is simply "Shallotte Inlet." These calls, when read without the referenced map and without reference to historical aerial photography, are conflicting and ambiguous because:
- (i)
- The point of intersection described as the low water mark of Shallotte Inlet and the center line of the AIWW is an impossibility. There simply cannot be a low water mark at the center of the AIWW, as the latter is located below the low water mark, and is continually submerged at all times; and,
- (ii)
- It is unclear what body or bodies of water encompass "Shallotte Inlet." Does Shallotte Inlet simply refer to the Shallotte River Channel, or the larger area including both the river channel and the waters lying southwest of Monks Island.
The first and foremost rule of construction where there is an ambiguity or inconsistency in a description is to gather the intention of the parties as embodied in the entire instrument. Franklin
v. Faulkner, 248 N.C. 656, 104 S.E.2d 841 (1958); Webster’s Real Estate Law in North Carolina, §10-37 (4th Ed. 1994). Additionally, a reference in a conveyance to a map for the purpose of describing the land conveyed makes the map a part of the conveyance and may be used to identify the land. Kelly v. King, 225 N.C. 709, 36 S.E.2d 220 (1945). Although not a survey map, the map referenced in the Town’s legal description depicts the charter’s general description of the incorporated territory. When read together, the Town’s description and map provide sufficient evidence demonstrating that the Town’s western boundary did not include Monks Island or the SITE when the Town was incorporated.
Although Monks Island existed in 1969, it is neither mentioned in the Town’s description nor labeled on the map. Moreover, the Town’s legal description only refers to "an island beach eight miles long." It does not refer to other islands lying in Shallotte Inlet, including Monks Island.
Based upon historical photographs, the NCGS estimates that in 1969, Monks Island was approximately 1,500 feet away from Holden Beach island, separated by the open waters of the Shallotte River Channel. (See Attachments 1 and 2).
The Town’s map clearly labels Shallotte Inlet as the Shallotte River Channel, or more particularly, that water body separating the Holden Beach shoreline from Monks Island. The Town map does not label Shallotte Inlet as the larger water body containing both the Shallotte River Channel and the body of water lying southwest of Monks Island leading to the AIWW. Although not labeled, Monks Island is shown on the Town Map, together with another small island or shoal lying to its southwest. Applying this narrower interpretation of Shallotte Inlet as the Town’s western boundary necessarily excludes Monks Island and the SITE. The alternative would require crossing the Shallotte River Channel, an open water channel at low tide. (See Attachment 2, a copy of an infrared aerial photograph taken at low tide.)
This interpretation of the Town’s western boundary is consistent with the course and distance provided in the Town’s legal description, when compared with historical photographs. Referring to Attachment 1, the edge of the marsh next to the eastern edge of the Shallotte River Channel is a reasonable indicator of the low water mark, except that the Town’s boundary would have to pass in and out of the various tidal creeks. Following these natural boundary calls, the incorporated territory would go west along the low water mark of the Atlantic Ocean and then along the low water mark of the eastern bank of Shallotte Inlet. The corporate boundary would then head in a general northeast direction along the southeast side of the Shallotte River Channel. Using Attachment 2, the 1970 infra-red aerial photograph taken at low tide, the NCGS estimates that the distance along the edge of the marsh, next to the Shallotte River Channel, from the tip of Holden Beach island to the center line of the AIWW is approximately 5,400 feet. This distance approximates the 5,280 feet called for in the Town’s legal description.
Therefore, the Town’s legal description and map, when read together, evidence an intent to exclude Monks Island from the Town’s corporate territory at the time the Town was incorporated. The description does not refer to Monks Island and the map designates it as lying on the western side of the Shallotte River Channel. Together, the description and map demonstrate that the Town’s western boundary was to follow the low water mark of the east bank of the Shallotte River Channel to the center line of the AIWW. For these reasons, it does not appear that Monks Island and the SITE were within the Town’s corporate boundary at the time of its incorporation.
B. Town’s Corporate Boundaries From 1969 – Present Although the Town’s corporate boundaries did not include the SITE at the time of its incorporation, a municipality’s boundaries may extend over time due to natural forces. Boundaries on navigable waters may be extended for purposes of jurisdiction by natural accretions. State v. Eason, 14 N.C. at 791; McQuillin, Mun. Corp. §7.06. See also, Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297, 177 S.E.2d 513 (1970) (N.C. Supreme Court held that where a body of water constitutes the boundary of a tract of land, and where the gradual and imperceptible forces of erosion or accretion change the high water mark of that body of water, the boundary is accordingly changed).
In State v. Johnson, 278 N.C. 126, 146, 179 S.E.2d 371 (1971), the N.C. Supreme Court described the accretion process as follows: Accretion denotes the act of depositing, by gradual process, of solid material in such a manner as to cause that to become dry land which was before covered with water. It is the opposite of avulsion, which is the sudden and perceptible gain or loss of riparian land. Avulsion usually results from sudden powerful natural forces such as a flood or hurricane. (citations omitted)
A review of historical aerial photography reveals many changes occurring along the western end of Holden Beach island since 1969, most significantly, the Atlantic Ocean and Shallotte Inlet’s predominantly westward littoral drift and the closing of the Shallotte River Channel. These changes eventually extended the western end of Holden Beach island, over 1,000 feet, towards Monks Island and the AIWW.
By the date of the August 6, 1995 incident, the SITE had developed a high ground link with Holden Beach island. Two small drains, located slightly northeast of the SITE, still separate Monks Island from the SITE. The drains convey water in a northwest direction from the old Shallotte River Channel to the AIWW. Presently, the two islands possess a low water connection, meaning that at low tide, the water is below Holden Beach island and Monks Island. However, the two islands remain separated at high tide where the drains empty into the AIWW.
The "X", as depicted on the SBI photographs, represents the location of the incident according to Agent Hawthorne (See SBI photographs #12 and #15). The SITE is above the low water mark. Moreover, since the "X" appears to the right of the wrack line, the SITE is also above the high water mark. The wrack line is a line of seaweed and debris left by receding high tides which indicate the ordinary high water mark. See Webb v. CRC, 102 N.C. App. 767, 404 S.E.2d 29 (1991). Vegetation, common to high ground areas, also appears nearby.
C. Legal Impact of Holden Beach’s Accreted Shoreline The N.C. Supreme Court decision in State v. Johnson, 278 N.C. at 136, 179 S.E.2d at 371, appears controlling in this case due to the similarities in factual situations presented. Although Johnson was a condemnation action brought by the State, the Court analyzed a boundary dispute between the defendants over the condemned land, which was located near Fort Fisher, around New Inlet, New Hanover County. One party claimed ownership of an island on the southern side of New Inlet, while the other party claimed ownership on the northern side of the inlet, from the mainland to the low water mark of the inlet and Atlantic Ocean. In 1933, the channel at New Inlet closed due to natural accretion from both sides, thus connecting the island to the mainland. Later, in 1944, another inlet opened in a different location, north of the original inlet.
In Johnson, the N.C. Supreme Court determined that the boundary line between the parties became fixed by law on the ground where the accretions from both sides finally connected. The Court further found that an avulsive reopening of the inlet at a different location worked no change in the legal title to the lands. To address such situations, the N.C. Supreme Court articulated the following rule:
"[W]here accretions form on each side of a body of water and eventually meet, displacing the water which formed the boundary, a new property line is formed at the point of contact, and the body of water is no longer the boundary. . . . In the case of an island, the same rule applies as in the case of land bounded by water on one side only, that is, the boundaries are presumed to vary with any gradual change in the line between the land and the water, or, as it is otherwise expressed, the owner of an island is entitled to land added thereto by accretion to the same extent as the owner of land on the bank or shore of the mainland. . . . In case accretions to the island and to the mainland eventually meet, the owner of each, it is said owns to the accretions to the line of contact, or as we would prefer to express it, the boundary of an island, as that of the mainland, changes as its edge or shore line changes, and when there is no longer any island, owing to the growth of the accretions, he to whom the island belonged owns to where its edge or shore line was last visible.
Johnson, 278 N.C. at 146 (citations omitted).
In this case, the SITE, despite the continued buildup of intertidal shoals in Shallotte Inlet and the closing of the Shallotte River Channel, remained an intertidal area until sometime around 1989. Sometime after 1989, the high ground between the SITE and Holden Beach island finally connected. However, as of yet, there is no high ground connection between the SITE and Monks Island. Additionally, sometime around 1989 or thereafter, Holden Beach island, Monks Island, and the SITE developed a continuous low water line connection.
Applying the rule stated in Johnson, the Town’s western boundary will become fixed at the point where the last thread of water exists between Monks Island and Holden Beach island. As of now, the low water mark of Shallotte Inlet, which is not fixed, remains the Town’s western boundary, extending northwardly to the center line of the AIWW. The factual inquiry now left for the Town is the determination, through an appropriate survey, of the actual low water mark with respect to Monks Island and the intertidal marsh still separating it from Holden Beach island. To clarify its western boundary and prevent similar questions in the future, we recommend that the Town take appropriate steps to obtain such a survey to determine the location of the low water mark, and hence, the extent of the Town’s police jurisdiction. The Town may apply to the NCGS and request their assistance in surveying the Town’s boundaries. Another alternative would be annexation of Monks Island and the surrounding areas.
D. The Town’s Extraterritorial Jurisdiction Pursuant to N.C. Gen. Stat. §160A-286 and N.C. Gen.
Stat. §15A-402(c)
Further delineation of the Town’s ambulatory western boundary might not be necessary if the
Town had extraterritorial jurisdiction over this matter. At common law, a city or town could not
enforce an ordinance, enacted pursuant to its police power, outside its corporate territory, unless
the General Assembly has granted such power.
In this case, the N.C. General Assembly has not enacted any general law or local act granting the Town extraterritorial jurisdiction to enforce this ordinance; and, the Town’s corporate charter is silent with respect to any extraterritorial jurisdiction. For these reasons, it is our opinion that the Town does not have extraterritorial jurisdiction to enforce its recreational fire ordinance. Although the N.C. General Assembly has passed several statutes regarding the extraterritorial jurisdiction of city police officers, and even a statute regarding the extraterritorial jurisdiction of the Town in certain instances, none apply to enforcing the Town’s recreational fire ordinance.
N.C. Gen. Stat. §160A-286 defines the extraterritorial jurisdiction of policemen: In addition to their authority within the corporate limits, city policeman shall have all the powers invested in law-enforcement officers, by statute or common law within one mile of the corporate
limits of the city, and on all property owned or leased to the city wherever located.
Any officer pursuing an offender outside the corporate limits or extraterritorial jurisdiction of the
city shall be entitled to all of the privileges, immunities, and benefits to which he would be
entitled if acting within the city, including coverage under the worker’s compensation laws.
(emphasis added)
N.C. Gen. Stat. §15A-402(c) provides similar extraterritorial jurisdiction for city policemen to make arrests. Therefore, under N.C. Gen. Stat. §160A-286, the Town’s police must have the power, by statute or at common law, to enforce the recreational fire ordinance outside the city limit.
As previously stated, the power to enforce city ordinances beyond city boundaries did not exist at common law. State v. Furio, 267 N.C. at 353. The N.C. General Assembly has enacted two statutes which only provide the Town with extraterritorial jurisdiction in limited circumstances, none of which appear to apply in the situation presented. See N.C. Gen. Stat. §160A-176.2 (Town may "adopt ordinances to regulate and control swimming, personal watercraft operation, surfing, and littering in the Atlantic Ocean and other waterways adjacent to that portion of the city within its boundaries or extraterritorial jurisdiction . . ."); and, N.C. Gen. Stat. §160A-176 ("Any city ordinance may be made effective on and to property and rights-of-way belonging to the city and located outside the corporate limits."; in this case, the Town does not appear to own the locus in quo.) Further, neither the Town’s charter, nor a local act of the N.C. General Assembly empower the Town with legal authority to enact ordinances having extraterritorial effect. A search of the N.C. Session Laws since 1965 reveals that the N.C. General Assembly has not enacted any local act granting the Town extraterritorial power to enforce its recreational fire ordinance.
N.C. Gen. Stat. §160A-286 and N.C. Gen. Stat. §15A-402 have been applied only in cases involving alleged violations of state statutes, such as a city police officer’s search of premises and stopping of impaired drivers within the one mile extraterritorial boundary. See e.g., State v. Treants, 60 N.C. App. 203, 298 S.E.2d 438 (1982), cert. denied, 307 N.C. 702, 301 S.E.2d 395 (1983) (where police officer acting within his territorial jurisdiction as extended by N.C. Gen. Stat. §160A-286, the defendant has no right to resist, delay, or obstruct a search being conducted pursuant to a warrant); State v. Dark, 22 N.C. App. 566, 207 S.E.2d 290, cert. denied, 285 N.C. 760 (1974) (DUI arrest was not illegal where no evidence presented that arrest occurred more than one mile beyond town’s corporate boundary). We are unaware of any cases where N.C. Gen. Stat. §160A-286 or N.C. Gen. Stat. §15A-402(c) have been applied for the violation of a town or city ordinance.
Therefore, the Town, lacking the requisite legislative or common law authority, cannot impose criminal liability for violations of its recreational fire ordinance beyond its corporate limits. Although well beyond the scope of this opinion, it would appear, under the plain language of
N.C. Gen. Stat. §160A-286, that the Town has extraterritorial jurisdiction over the remaining state criminal charges.
III. Conclusion For the above reasons, it is our opinion that the location of the incident between the Holden Beach Police Department and Mr. McLaurin was not within the Town’s corporate territory in 1969, the year the Town was incorporated. However, over the past twenty-five years, the Town’s western boundary may have extended through the natural forces of accretion to now include the site of this incident. Once the Town establishes where the low water mark of Shallotte Inlet is located, with respect to the site, Monks Island, and the surrounding intertidal marshland, it can then determine the location of its western boundary, and hence, the extent of the Town’s police jurisdiction. The Town does not have extraterritorial jurisdiction to enforce its recreational fire ordinance beyond its corporate boundary. However, the Town does appear to have extraterritorial jurisdiction to enforce the other state criminal laws charged. Whether those laws were applied fairly is beyond the scope of this opinion.
If you need further assistance or have any questions, please let us know.
Daniel C. Oakley Senior Deputy Attorney General
David W. Berry
Assistant Attorney General