June 19, 1995
Mr. Ben Hollowell Town Attorney Town of Oriental
P.O. Box 218 Bayboro, North Carolina 28515
RE: Advisory Opinion; Municipal Corporations/Right to Construct Docks or Piers at Dedicated Street Ends.
Dear Mr. Hollowell,
You contacted our office recently to request an opinion concerning ownership of the right to construct a pier where the city of Oriental has a dedicated easement terminating at the Neuse River, a navigable waterway. We hope that this letter will answer your question.
I. Introduction
In North Carolina, courts recognize that there are various rights which attach to property on public waters. These rights include "[t]he right of access to the water … [and t]he right to build a pier or wharf out to the navigable water …." In re Protest of Mason, 78 N.C. App. 16, 25 (1985) (quoting from Lewis, Eminent Domain § 83); see also, Robert E. Beck, ed., Water and Water Rights § 6.01(a) (1991) (explaining that riparian rights consist of a bundle of rights, including the right of access and the right to build a wharf).
With regard to the right to construct a pier, however, an interesting question arises when a street leading to a navigable waterway is dedicated to a municipality for public use. In this situation, there are two possible options: (1) the dedicator retains the right to build a pier; or (2) the town which has accepted the dedication has that right. While there is no case law on this precise issue from North Carolina, the weight of authority provides that the town may construct a pier in order to exercise its right of access.
II. The town has the right to build a pier
As a starting point, two leading authorities believe that the city or town to which the road has been dedicated possesses the right to build a wharf or pier. First, one author states: When a way in a city extends to navigable waters, and is dedicated to the public use as a street, it carries with it, by necessary implication, the right of the city to extend it into the water by the construction of a wharf at the end thereof.
John M. Gould, Treatise on the Law of Waters 201 (3d ed. 1900). Similarly, another scholar has noted that:
A public road laid out to a water way becomes a public landing at its termination, and piers at the ends of such streets are mere extensions of the highway the title to which is vested in the public.
Henry Philip Farnham, The Law of Waters and Water Rights 674 (1904).
In support of these statements, Farnham and Gould relied on several nineteenth century cases. For example, in Barney v. Keokuk, 94 U.S. 324, 340 (1876), a fee owner argued that he had dedicated property to the city for a street only, not for a wharf. The United States Supreme Court began by stating its belief that the dedication of the street was at common law, and by agreeing with the lower court that when they made the dedication the owners reserved title to the soil in the street. Id. at 336. The Court then noted that the title of the grantor "was bare legal title, subject to the public easement and use, not only for street purposes, but for the purposes of wharves, landings and levees." Id. at 339-40. Such a street "must be regarded as intended to be used for the purposes of access to the river, and the usual accommodations of navigation in such a connection." Id. at 340. The Court quoted with approval the language of the court below, the Iowa Supreme Court, which believed that to accept the landowner’s argument would be to take "a very narrow and close view." Id.
Additionally, in McMurray v. Baltimore, 54 Md. 103 (1880), the Maryland Supreme Court determined that "the dedication of [a] street to the public use as a street extending to the water, carried with it by necessary implication, the right of the city to extend it into the harbor by the construction of a wharf at the end thereof." Id. at 112. The court "entertain[ed] no doubt of the right of the city to construct the wharf …." Id. Similarly, in Backus v. City of Detroit, 49 Mich. 110, 13 N.W. Rep. 380 (1882), the Michigan Supreme Court found that Detroit had a right to construct a wharf from a dedicated public way which led to a navigable river.
Several modern cases lend additional support to the argument that the city to which a street easement is dedicated also has the right to construct a wharf. For example, the Michigan Court of Appeals held that "[p]ublicly dedicated streets that terminate at the edge of navigable waters are generally deemed to provide public access to the water." Jacobs v. Lyon Township, 502 N.W. 2d 382 (Mich. App. 1993), appeal denied, 512 N.W. 2d 834 (1994). The court grounded this decision in its belief that a street terminating at the edge of a navigable waterway carried a "presumption that the platter intended to give access to the water and permit the building of structures to aid in that access." Id. In another Michigan case, Thies v. Howland, 380 N.W. 2d 463 (Mich. 1985), the Michigan Supreme Court considered whether a city had the right to construct a wharf at the end of an easement. The court found that the city could not do so because the easement was created by an express grant which had very specific provisions and did not include the right to construct a wharf. However, the court noted that:
Public ways which terminate at the edge of navigable waters are generally deemed to provide public access to the water. A city, on behalf of its citizens, is entitled to build wharves at the end of such streets to aid the public’s access. Id. at 470 (citations omitted). The court further noted that the right to build a wharf in such a situation does not depend on whether the public owns the fee in the way. Id.
Similarly, the Minnesota Supreme Court decided that a town could erect a dock where a road terminated at a navigable river. Flynn v. Biesel, 102 N.W. 2d 284 (Minn. 1960). The road had been established by common law dedication of an easement. Id. at 292. In support of its holding, that court quoted from a Pennsylvania case as follows:
Where one road commences or terminates at another road, it is intended to furnish a passage from and to that other, and the same rule applies to a road terminating at a navigable river. This road, terminating at such a river, is intended as a means of public communication between the river and the country adjoining. Id. at 290 (quoting Balliet v. Commonwealth, 17 Pa. 509, 513).
Finally, at least one Florida court has found that the owner of an easement which reached a navigable waterway had the right to construct a dock. Lanier v. Jones, 619 So. 2d 387 (Fla. App. 5 Dist. 1993) (en banc). The court noted that "[i]nsofar as riparian rights are necessary to or consistent with the purposes of the easement, they are impliedly granted to appellees and, as a corollary, reserved from the appellant fee owners." Id. at 388 (citations omitted) (emphasis added). However, in order to show that the dock was necessary for or consistent with enjoyment of the easement, the Florida court found it relevant that neighboring landowners had docks. Id. at
388. Applying the reasoning above, we believe it is clear that the town of Oriental has the right to construct a wharf at the end of the dedicated road. Essentially, the dedication of a road which leads to the bank of a navigable waterway carries with it "by necessary implication" the right to construct a wharf. Stated differently, the public way which ends at a navigable waterway carries a presumption that the town may construct a means of access to the water. This presumption can be overcome only if there is a specific grant of the dedication which clearly does not include the right of access to the water, as was found in Thies.
III. North Carolina Law
While other jurisdictions seem to be unanimous in their view that the recipient of the dedication may wharf out, no North Carolina court has addressed the question. However, applying our case law on dedication and easements, it is likely that North Carolina courts would find that the city has the right to construct a pier.
Initially, an easement by dedication is subject to the same rules of law that apply to easements in general. See, Patrick Hetrick, Webster’s Real Estate Law in North Carolina 616 (4th ed. 1994); Shear v. Stevens Building Co., 107 N.C. App. 154 (1992) (applying general easement rules to a controversy involving an implied dedication). Applying rules concerning the scope of easements, a North Carolina court would find that the town may construct a wharf.
In Shingleton v. North Carolina Wildlife Resources Commission, 260 N.C. 451 (1963), the North Carolina Supreme Court considered the scope of an easement for ingress and egress. In that case, the court stated that when deciding the scope of an easement "consideration must be given to the purposes for which the easement was granted. The owners of the servient estate may make any use of their property and road not inconsistent with the reasonable use and enjoyment of the easement granted." Id. at 457 (citations omitted); see also, Keller v. Cochran, 108 N.C. App. 783, 784 (1993) ("In North Carolina, it is an established principle that the possessor of an easement has all the rights that are necessary to the reasonable and proper enjoyment of that easement"); Hetrick, supra, at 634 (if there is no express guidance as to the scope of an easement, a reasonable use is implied). Additionally, the court noted that the reasonable use and enjoyment of an easement is to be determined "in light of the situation of the property and the surrounding circumstances." Shingleton, 260 N.C. at 457.
Following the reasoning in Shingleton, the court would find that the purpose of the dedication in Oriental could only be to provide access to the waterway. Therefore, the construction of a dock is "not inconsistent with the reasonable use and enjoyment of the easement granted." Shingleton, 260 N.C. at 457. It would make little sense to grant the public access to the bank of the water without granting access to the water itself.
Finally, the North Carolina Supreme Court has stated that the right of access to navigable waters is a property right, "analogous …to an abutting owner’s right of access to highways on land." Gaither v. Hospital, 235 N.C. 431, 445 (1952). The Minnesota Supreme Court used this same analogy to justify its conclusion that a town could build a dock where a road terminated at a navigable waterway. Flynn, 102 N.W. 2d at 290, discussed supra. Therefore, a North Carolina court would find that this reasoning supports the view that construction of the dock is consistent with, or perhaps even necessary for, the reasonable use and enjoyment of the dedication.
IV. Conclusion
In order to remain consistent with North Carolina law and with the law of other jurisdictions, it is our opinion that a court would find that the town of Oriental has the right to construct a pier at the end of a dedicated road which terminates at a navigable river.
We hope that this letter answers your inquiry regarding the town’s right to construct a pier. If you have any questions about this matter, please call Allen Jernigan [(919) 733-7247].
Daniel C. Oakley Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General
Paul Gormley Associate Attorney General