April 6, 1998
P.A. Wojciechowski Division of Marine Fisheries 3441 Arendell Street Morehead City, North Carolina 28577-0769
RE: Advisory Opinion: Ownership of Renourished Beach at Wrightsville Beach; Ch. 246, 1939 Session Laws; N.C.G.S. § 146-6(f).
Dear Mr. Wojciechowski:
You asked several questions concerning Chapter 246 of the 1939 Session Laws (hereinafter "1939 Session Law") regarding title to land built up and constructed in the Town of Wrightsville Beach as a result of certain erosion control work. The issues arose from the Town’s application for a Coastal Area Management Act permit for beach bulldozing to create a protective berm in areas overwashed by 1996 storms. In particular, you asked whether the 1939 Session Law conveys fee simple title to the Town of Wrightsville Beach to the low water mark of the Atlantic Ocean. You also asked for a clarification of the restricted use clauses concerning public use and reversion. After careful review, we conclude the 1939 Session Law, as a special legislative grant, conveyed good title to the Town of Wrightsville Beach subject to public trust rights. Although good title was conveyed in 1939, publicly funded projects since May 30, 1985, which raised land above the mean high water mark by hydraulic dredging or deposition of spoil or sand, would have vested title in the State by operation of law pursuant to N.C.G.S. § 146-6(f).
Background
Since the Town’s act of restoring eroded shoreline by pumping sand from Banks Channel created new land, the 1939 Session Law attempted to fix title to the new land, define the use of the new land and define the littoral rights of adjacent landowners. It fixed title by reference to a building line drawn in a professionally surveyed map. Any land restored west of the line belonged to the adjacent land owner. Land owners abutting the new land retained their littoral rights as if they bordered the Atlantic Ocean. The 1939 Session Law conveyed land east of the line to the low water mark to the Town of Wrightsville Beach, subject to the restrictions that nothing could be built in the area, and it would be kept open "for the purpose of streets and highways for the use of the public, and further for the development and uses as a public square or park" as defined by ordinance. If the Town failed to follow these conditions, the land east of the line reverted to the State.
Public Trust Rights
Regarding your question concerning public use, an examination of the public trust doctrine reveals the 1939 Session Law did not limit or remove any public trust rights. In North Carolina, the public trust doctrine results in a presumption that the General Assembly does not intend to convey lands without reservation of public trust rights. This presumption can only be overcome by "expressly conveying lands underlying navigable waters in fee simple and without reservation of any public trust rights." Gwathmey v. State of North Carolina, 342 N.C. 287, 304 (1995) (emphasis in original). The 1939 Session Law grants and conveys the land east of the building line "in fee simple to the Town of Wrightsville Beach" upon certain restrictions protecting the public’s right of access, but does not expressly convey it without reservation of public trust rights. In fact, the 1939 Session Law names at least two public trust rights which must be observed, i.e., that no structures will be built upon the land and that the area will be kept open for public streets and highways and for the development and use as a public square or park. Therefore, the 1939 Session Law conveys the land to the Town of Wrightsville Beach subject to all public trust rights.
Title to the Raised Land
Regarding your question concerning title to land to the low water mark, the prohibition of submerged land conveyance in the State Lands Act of 1959, N.C.G.S. §§ 146-1, et seq., does not affect the 1939 Session Law conveyance. Generally, ownership of the foreshore, which is the land between the high and low tide lines, is vested in the State. The State Lands Act, the current law defining State-owned lands and specifying those which may be transferred, specifically provides that submerged lands may not be conveyed in fee, but easements may be granted.
N.C.G.S. §146-3. Submerged lands include those under navigable-in-fact waters and under the Atlantic Ocean for three miles seaward from the coastline. N.C.G.S. §146-64. The 1939 Session Law transfers lands lying between the high and low water marks of the Atlantic Ocean in fee simple to the Town of Wrightsville Beach. Although this appears to be inconsistent with the prohibition of submerged lands conveyance under N.C.G.S. §146-3, the State Lands Act does not apply to the 1939 Session Law conveyance, since it was not in force at the time of the special legislative grant. Further, Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297 (1970) found the 1959 State Lands Act did not bar a similar session law adopted in 1963 (after the effective date of the State Lands Act), from granting the Town of Carolina Beach the land between a building line and the low water mark of the Atlantic Ocean. Like the 1939 Session Law, the 1963 Session Law at issue in Fishing Pier repealed all laws in conflict with it. The Court recognized the Legislature’s power to amend or make exceptions to its own acts and found that it had done so in the 1963 session law. Id. at 304.
Likewise, earlier statutes which only allowed entry of land under non-navigable
waters did not bar the 1939 Session Law conveyance. The entry and grant statute in effect at the time the 1939 Session Law was written contains a prohibition against entry of "[l]ands covered by navigable waters." Former N.C.G.S. §146-1. However, it only applies to grants made pursuant to the entry and grant statute. Although the State owns lands beneath navigable waters in public trust, the General Assembly has the power to dispose of lands lying between the high and low water lines by special grant. See Gwathmey, 342 N.C. at 293. The 1939 Session Law was a direct grant from the Legislature, not a grant made pursuant to an "entry" under the entry and grant statute. Therefore, the prohibition against entry of lands covered by navigable waters did not apply to the special legislative grant to the Town of Wrightsville Beach.
After the State Lands Act came into effect in 1959, the 1939 Session Law was amended by Chapter 618 of the 1981 Session Laws. The amendments replace the phrase "the property line" for "the building line" throughout the original act. It also gives the Town of Wrightsville Beach the power to determine, by ordinance, the minimum building setback requirements from the renamed "building line" established pursuant to the 1939 Session Law. The fact that the Legislature amended the earlier 1939 Session Law in 1981 shows an intent to maintain the effectiveness of the earlier Session Law, as revised.
However, a later amendment of the State Lands Act by the Legislature allowed title to shift from the Town of Wrightsville Beach to the State. In 1985, the State Lands Act was amended to establish title to certain lands raised from navigable waters. A new section was added addressing title to land in or immediately along the Atlantic Ocean raised above the mean high water mark. Act of May 30, 1985, 1985 N.C. Sess. Laws ch. 276, sec. 2 (codified at N.C.G.S. §146-6(f)). The new language reads:
(f) Notwithstanding the other provisions of this section, the title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed projects which involve hydraulic dredging or other deposition of spoil materials or sand vests in the State. Title to such lands raised through projects that received no public funding vests in the adjacent littoral proprietor. All such raised lands shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage of the people of this State. N.C.G.S. §146-6(f). (Emphasis added.)
Under this section, publicly funded projects involving hydraulic dredging or deposition of spoil materials or sand vest title to the raised land in the State. Privately funded projects vest title in the adjacent littoral property owner. In either case, all such raised lands remain subject to public trust rights. As a result, publicly funded beach renourishment activities since the May 30, 1985 effective date of the statute would vest title to land thus raised above the mean high water mark in the State, not the Town of Wrightsville Beach or adjacent landowners. A further inquiry into the extent and area of land affected by such publicly funded projects may be needed to clarify the title of the land in question.
Although the 1939 Session Law, as a special legislative grant, conveyed good title to the Town of Wrightsville Beach subject to public trust rights, publicly funded projects since May 30, 1985, which raised the land within the bounds of the grant above the mean high water mark by hydraulic dredging or deposition of spoil or sand would have vested title in the State by operation of law pursuant to N.C.G.S. § 146-6(f). In our opinion this would include publicly funded activities by a municipality involving the deposition of spoil material, such as beach bulldozing, which raises land above the high water mark. In effect, as a result of state law, the continuing beach renourishment activities since 1985 transferred title from the Town of Wrightsville Beach to the State. Of course, the CAMA permit may still be issued, even if the Town does not own the beach, provided that other Coastal Resources Commission guidelines are met by the application.
Thank you for your inquiry. Please advise if we may be of further assistance.
signed by:
Daniel C. Oakley Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General Mary Penny Thompson Associate Attorney General