Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,341 Cases and Articles on TJV!
 
North Carolina State Categories







Newcomb v County of Carteret

Case No. COA09-1254 (NC Ct. App., Nov. 2, 2010)

Defendants George Brown, Julian M. Brown, Julian Brown, Jr., Earl Chadwick, Temple Chadwick, Randy Frye, Norman Fulcher, Joe O’Neal Gardner, Robert Guthrie, Sammy Guthrie, Maureen Harris, Tammy Hill, Larry Kellum, Larry Kellum, Jr., Robert Kittrell, Lee Lawrence, D.A. Lewis, Jeff Lewis, Mark Lewis, Thomas Lewis, Denise Lewis, Luke Midgett, Randy Steve Milam, Jr., Larry Moore, Charles Newkirk, Craig Newkirk, Becky Paul, Nino Giovanni Pupatti, Luther Robinson, Kenny Rustick, Thomas Allen Smith, Thomas Allen Smith, Jr., Jeffrey Taylor, Kevin Williamson, Sonny Williamson, Melvin Willis, Terry Willis, and Robert Wayne Workman, Jr. (Joint Individual Defendants) appeal and Plaintiffs Robert Timberlake Newcomb, III, Scott D. Nafe, Gary T. Davis, and wife, Karen J. Davis, and Pelham Jones cross-appeal from an order entered by the trial court granting partial summary judgment in favor of Plaintiffs with respect to the issue of whether Plaintiffs had riparian rights into Marshallberg Harbor; denying Plaintiffs’ request for summary judgment with respect to the issue of whether Plaintiffs’ properties were subject to certain prescriptive easements applicable to various roadways, parking areas and paths; and construing certain easements to afford Defendant Carteret County the responsibility for overseeing the installation and use of permanent structures in Marshallberg Harbor and to require Carteret County to serve as an arbiter with respect to any disputes over the installation and use of such structures. After careful consideration of the various challenges to the trial court’s summary judgment order that have been advanced by the Joint Individual Defendants and Plaintiffs in light of the record and the applicable law, we conclude that Plaintiffs’ appeal from the trial court’s decision concerning the prescriptive easement issue should be dismissed and that the remainder of the trial court’s order should be affirmed.

I. Factual Background

A. Substantive Facts

Marshallberg is an unincorporated community located at the eastern end of Carteret County on a peninsula that is “bounded on the east by Core Sound, on the south by The Straits, and on the west by Sleepy Creek.” Marshallberg presently has a population of approximately 528 people. The mainstays of Marshallberg’s economy and culture include commercial fishing and boat building.

On or about 28 June 1948, the Chief Engineer of the United States Army submitted a report, which was printed as part of House Document No. 68 in the 1st Session of the 81st Congress, concerning whether it was advisable to provide “harbor improvements at and in the vicinity of Marshallberg” in connection with an existing waterway project from Pamlico Sound to Beaufort Harbor, North Carolina, by way of Core Sound. On 17 May 1950, Congress passed the River and Harbor Act of 1950 ("Waterway From Pamlico Sound to Beaufort Harbor, N.C.-Harbor Improvement at Marshallberg"), which authorized construction of an approach channel and harbor in Marshallberg in accordance with the project outlined in House Document No. 68.

In House Document No. 68, the Board of Engineers recommended that the existing waterway project be modified “to provide for a harbor 6 feet deep, 100 feet wide, and about 600 feet long in the natural drain between the mouth of Sleepy Creek and the surfaced highway at Marshallberg, with an approach channel of the same depth, 60 feet wide, from the 6-foot contour in The Straits, near the public dock, to the entrance of Sleepy Creek and thence to the harbor. . . .” One of the principal justifications for the project described in House Document No. 68 was the creation of a harbor to protect the boats in the area from “sustain[ing] considerable damage during storms in seeking refuge in the shallow waters of Sleepy Creek.” However, House Document No. 68 also indicated that the construction of the proposed harbor was justified for the purpose of inducing more commercial fishermen to visit the area, reducing the time needed to travel to the fishing grounds, providing for the centralized harboring of boats, and alleviating potential malarial conditions. According to House Document No. 68, the improvements were “necessary for the safety and convenience of established and prospective navigation.” The Board of Engineers’ recommendation that the Marshallberg Harbor project be approved was conditioned upon assurances from “responsible local interests” that they would “(a) [p]rovide without cost to the United States all lands, easements, rights-of-way, and spoil-disposal areas necessary for the construction of the project and subsequent maintenance, when and as required; (b) hold and save the United States free from all damages due to the construction and subsequent maintenance of the project; and (c) provide at their own expense suitable space for public landing open to all on equal terms.” According to House Document No. 68, the construction of the proposed harbor was to be accompanied by various improvements to be provided by the local community in the form of “an access walkway, stalls for tying up boats, and a public landing[.]”
 

 

Judge(s): Sam Ervin, IV
Jurisdiction: North Carolina Court of Appeals
Related Categories: Property
 
Circuit Court Judge(s)
Sam Ervin, IV
Martha Geer
Robert Hunter

 
Trial Court Judge(s)
Russell Lanier, Jr.

 
Appellant Lawyer(s) Appellant Law Firm(s)
Gary Clemmons Chesnutt Clemmons Peacock & Long PA

 
Appellee Lawyer(s) Appellee Law Firm(s)
Wesley Collins Harvell and Collins PA
Ryal Tayloe Ward and Smith PA
Claud Wheatly III Wheatly Wheatly Weeks & Lupton PA

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
357 s.e.2d 641, 650, cert. denied, 484 u.s. 916, 98 l. ed. 2d 224, relevant easements than that advocated for by plaintiffs, and portion cut away and removed, as part of the the joint individual defendants, he is no longer represented by owners of the people of marshallberg and any and all other boat ownership of land bounded or traversed by navigable water." pine stat. § 1a-1, rule 60(a) (2009). the 9 march 2009 amendment the pending summary judgment motions. on 20 january 2009, the "consideration must be given to the purposes for which the easement lewis, luke midgett, randy steve milan, bank & tr. co. v. morgan, 9 n.c. app. 460, 466, 176 s.e.2d 860, 864 judgment order that determined that "`plaintiffs and the other properties abutting the harbor, subject to the by trudy beveridge, julian m. brown, sr., julian m. brown, jr., appeal to this court from that portion of the trial court's summary page v. sloan, 281 n.c. 697, 706, 190 s.e.2d 189, 194 (1972)). a the 25 october 1956 easement in any way indicates that carteret fully and finally dispose of the case before an appeal can be the entry of summary judgment. the joint individual defendants' app. 289, 296, 560 s.e.2d 576, 581 (2002) (citations omitted), he 61, 75 (2008) (stating that "`[a]ssuming arguendo that the trial after such notice, if any, as the judge prior to the construction of that facility. on 20 august 2007, the summary judgment pursuant to rule 56(c), with respect to "`the be so corrected with leave. 604, 38 s.e. 900, 901 (1901)). for that reason, riparian rights issue.11 prejudice. covered by the easement "is needed in the 179, page 109, carteret county registry, right to "have all necessary dredged materials deposited upon the the issues in dispute between the parties. marshallberg harbor, although other persons own property adjoining summary judgment, the [joint individual] issue would end the present litigation, similar considerations registry, and june 1, 1957, recorded in book doctrine extend to "the right to navigate, swim, hunt, fish, and martin, 175 n.c. 287, 289-90, 95 s.e. 621, 623 (1918); wachovia parking areas, and pathways on or across the convey directly to the county in which the development or project delay, rather than advance, the ultimate resolution of matters in construct a small boat harbor for the boat 139, 81 s.e.2d 273, 275 (1954), stanback v. stanback, 287 n.c. 448, pelham jones, into and upon the lands belonging to the" argue that the prescriptive easement issue involves important available to plaintiffs. however, given that the trial court's davis, and pelham jones cross-appeal from an order entered by the late 1950s. b. summary judgment standard of review owners whose property abuts the harbor may -12- including plaintiffs' riparian corridors out into marshallberg controlling authority from this court, however, we disagree with fact-intensive in nature. as the voluminous record that has been based upon these determinations, the trial court ordered that: corrected by the judge at any time on his own are therefore entitled to judgment as a matter states obtained the rights necessary to construct and physically carteret county superior court. heard in the court of appeals 23 does not in any way limit the rights granted to carteret county in workman, jr. . highway at marshallberg, with an approach channel of the same subject to the easements of the county as entity had the right to ensure that the harbor functioned as a this court stated that: litigation, there are benefits to be obtained from the fuller same," "in order to bring about the completion bringing of an appeal and secure appellate enjoy all recreational activities in the watercourses of the cross appellants/appellees robert timberlake newcomb, iii, order to permit the achievement of that purpose. as a result, newkirk, craig newkirk, becky paul, nino giovanni pupatti, should be, and hereby is, dismissed. initiative or on the motion of any party and -37- 822, 825, 433 s.e.2d 782, 784, disc. review denied, 335 n.c. 236, encompass bodies of water that are navigable in fact. the riparian community in the form of "an access walkway, stalls for tying up harbor, now and in the future, and the boaters, the general public, basin at marshallberg" "subject to existing stitzer, 240 n.c. 689, 692, 84 s.e.2d 167, 170 (1954); ward v. marshallberg harbor project. in addition, the literal language of pursuant to rule 54(b). accompanied by various improvements to be provided by the local trial court's summary judgment order is interlocutory in nature. and thereafter while the appeal is pending may 4. at the hearing on the motions for easement intact. 19 october 1956 easement. on the contrary, the clearly expressed routine allowance of interlocutory appeals would have a tendency to lovick v. farris, 2009 n.c. app. lexis 686 (2009)). therefore, we the harbor as well. on 1 march 2006, judge benjamin g. alford heard the dismissal dredge and construct a basin or boat harbor" as shown on map no. light of the fact that the tract of land natural drain between the mouth of sleepy creek and the surfaced the trial court's decision with respect to the prescriptive -29- defendants david n. jones, susanne white, and gloria davis3 judgment in favor of plaintiffs with respect to the riparian rights request for summary judgment with respect to the issue of whether 19 october 1956 easement should be construed in the narrow manner 440 (1991), disc. review denied, 361 n.c. 227, 643 s.e.2d 400 establishes that the trial court lacked the authority to amend its v. roberts, 49 n.c. app. 311, 314, 271 s.e.2d 399, 401 (1980), 3. that the motion of the [joint easements did not "confer upon any individual or entity the right wheatly, iii, for defendant-appellee carteret county. -28- marshallberg harbor;" (c) "from trespassing upon the lands of 1956 easement should be construed to grant carteret county the -10- summary judgment motion was accompanied by affidavits from numerous aff'd, 343 n.c. 298, 469 s.e.2d 553 (1996). -26- building docks and similar facilities in the harbor. subsequently, approximately 528 people. the mainstays of marshallberg's economy material fact on the claim by the plaintiffs over the installation and use of such structures. after careful between the owners of property abutting the harbor, now and in the lawrence, d.a. lewis, jeff lewis, mark here, the parties desire an answer to a question which is court's authority to issue a writ of certiorari in order to permit plaintiffs' request for the issuance of a writ of certiorari riparian rights only attach to natural, as compared to artificial, the land and construct the channel and harbor" and "contains no tillett, 80 n.c. app. 383, 385, 343 s.e.2d 188, 191, cert. denied, issue of the [joint individual] defendants' claimed public county. plaintiffs' arguments in reliance upon the language of the [c]lerical mistakes in judgments, orders or owners, but to the community and county as well . . . ." aforesaid improvements," and remind us that carteret county that it is the united states, not the county, that is in charge of that plaintiffs are entitled to judgment as a components of the trial court's summary judgment order is properly their lands for said purpose," conveyed "unto plaintiffs or interfering with plaintiffs' property rights in any other issues that are before the court, and that a decision in harbor, for any purpose[;]" (b) "from entering upon the lands of recently concluded, in the context of applying the "public trust" marshallberg harbor "for a public landing open to all on equal 245 n.c. 139, 144-45, 95 s.e.2d 553, 557 (1956)). in the event defendants, in opposing plaintiffs' certiorari petition, emphasize reasons, including the fact that the parties apparently did agree, 1956 easement was the construction and operation of a harbor "for made carteret county "the arbiter of any dispute concerning the a. appealability the joint individual defendants' contention.9 property owners are entitled to have riparian rights. based upon correctness of the trial court's ruling would require consideration the property free from [an] encumbrance `will clearly be lost or construction of" "a channel in sleepy creek motions. 393 s.e.2d 890 (1990)). according to well-established north dimensions," bunn lake prop. owner's ass'n. v. setzer, 149 n.c. states government;" other statements in the easement referring to or all of the hereinbefore described tract or 588, 160 s.e.2d 881, 886 (1968), disc. review denied, 326 n.c. 601, regard to the riparian rights of the asserted in the plaintiffs' complaint in reliance upon rule 60(a), the role of the united states in constructing the harbor; and the although the joint individual defendants correctly note13 -38- harbor clearly have riparian rights in its waters. as a result, we (phillips supp. 1970); and furr v. simpson, 271 n.c. 221, 222-23, party's right to hold property free from such an encumbrance does and improvements within plaintiffs' . . . riparian corridors." as after obtaining the necessary easements, the united states army by the marshallberg community men's club. after 1997, the plaintiffs' reading of the 19 october 1956 easement ignores on 8 august 2007 and 9 august 2007, respectively, carteret marshallberg . . . upon which or through which especially to the practical interpretation put upon the grant by anchorages, berths, or any permanent structure marshallberg harbor. in addition, the joint individual defendants5 dated october 19, 1956, and recorded in book at one point, that it would be advantageous for this court to be transferred from carteret county to the united states, the harbor. . . ." one of the principal justifications for the project against defendants annie piner family limited partnership and gary from intermediate orders." veazey, 231 n.c. at 363, 57 s.e.2d at entitled to riparian rights to the established and prospective navigation." the board of engineers' earl chadwick, temple chadwick, randy frye, norman fulcher, joe the united states." as we understand this language, which does not administration of justice and to ensure that the trial divisions october 1956 easement, we are convinced that the relevant language seek to make of their riparian rights; and the whether it was advisable to provide "harbor improvements at and in or she "`must not change the use for which the easement was created defendants. (quoting i. patrick k. hetrick & james b. mclaughlin, jr., property abuts the harbor, and such reasonable shall be, and it is hereby, dismissed, with states "proposes to construct a small boat harbor for the boat final and that there exists no just reason for hereinafter set forth; other vessels in marshallberg harbor and/or the docks or piers carteret county to serve as an arbiter with respect to any disputes plaintiffs' claim to have the right to exclude other individuals -13- house document no. 68. arising from oversight or omission may be 5. pursuant to [rule 54(b)], the court plaintiffs' riparian rights were "subject to the easements of the a result of our conclusion that the 1 june 1957 easement has no trust doctrine, the existence of certain implied and prescriptive purports to strip carteret county of any rights granted under the way, including plaintiffs' riparian rights;" and (d) "from docking court's refusal to grant summary judgment with respect to the entitled to control permanent structures in marshallberg harbor in material fact as to the claim of the [joint knoll ass'n v. cardon, 126 n.c. app. 155, 159, 484 s.e.2d 446, 448 document no. 68, the construction of the proposed harbor was to be for the purpose of accessing marshallberg harbor, that the boaters to use the waters of the harbor right of the public and all boat owners and n.c. at 719, 127 s.e.2d at 541 (citing debruhl v. highway comm'n, the authority to modify a prior order dismissing certain claims trial court, acting on its own motion, entered an order amending defendants, some of whom owned property in the vicinity of erection, installation, and use made of any docks, mooring stakes, finds, and hereby certifies, that, although easement issue as a matter of right and must instead rely on their appellate court piecemeal through the medium of successive appeals of plaintiffs," and that the easements did not "restrict the judgment as a matter of law." n.c. gen. stat. § 1a-1, rule 56(c) of any dispute concerning the demolition, removal, repair, they would "(a) [p]rovide without cost to the united states all 3. that there are genuine issues of s.e.2d 825, 828 (1988). see also n.c. gen. stat. § 1-45.1 (2009) authority "`to issue any remedial writs necessary to give it a . . ." since all of the rights granted by the easement were not to marshallberg is an unincorporated community located at the iii. conclusion in view of the fact that our decision with respect to the14 comm'n, 261 n.c. 316, 317, 134 s.e.2d 664, 665 (stating "when, as the construction of the proposed harbor was justified for the all damages due to the construction and subsequent maintenance of s.e.2d 641, 650 (1973), disc. review denied, 351 n.c. 640, 543 defendants noted an appeal to this court seeking review of that any permanent structure in the harbor'" and making carteret county and the boaters, the general public, and the course of an interlocutory appeal from the trial court's of carteret, 183 n.c. app. 142, 145-46, 643 s.e.2d 669, 670-71 for public landing open to all on equal terms." according to house cannot be consented to or stipulated to") (citing stanley, edwards, effectively suspended with the consent of the parties during the construct a channel from the straits channel, plaintiffs' challenge to this portion of the trial court's summary county; defendants samuel and cynthia thomas; the united states;2 authority over permanent structures in marshallberg harbor stat. § 1-277(a) (2009) and n.c. gen. stat. § 7a-27(d) (2009). of the existence of riparian rights summary judgment order, the fact that the joint individual the extent to which carteret county is entitled to control easement, we conclude that the trial court correctly construed the proper interpretation of the easements granted in connection with prescriptive easement over the roadways, the 25 october 1956 easement granted carteret county "perpetual harbor as expressed in its enabling statute, issue as to any material fact and that any party is entitled to a construct a channel from the straits channel, or core sound, into certification pursuant to rule 54(b), with respect to the issue of states. as a result, we are not persuaded that the language of the 2010 n.c. lexis 596 (2010) (quoting hughes v. nelson, 303 s.c. 102, easements. strickland v. hedrick, 194 n.c. app. 1, 22, 669 s.e.2d appurtenant to the properties of the for the purpose of adding a certification pursuant to rule 54(b), our decision with respect to the extent of carteret county's inferior courts'") (quoting n.c. const. art. iv, sec. 8), and furr, fact that the easement grants rights to carteret county, "later to easement, the landowners expressly stated a desire to cooperate baughman, 322 n.c. 331, 343, 368 s.e.2d 849, 858 (1988) (citing pertinent part, as follows: does not contain any language reserving any rights to carteret perimeter which have been used by a variety of persons. in the the aforesaid easements recorded in book 173, irremediably adversely affected' if the order is not reviewed kellum, larry kellum, jr., robert kittrell, lee lawrence, d.a. owners abutting the harbor shall be, and 240 n.c. at 139, 81 s.e.2d at 275 (referring to the supreme court's intention of the parties is to be gathered from "the instrument in ditch running from marshallberg road to the marshy area. family limited partnership, rosalie interlocutory order, the trial court's 10 in marshallberg harbor, determined that "there exist[ed] no just riparian rights of plaintiffs . . . to improve their respective as to ascertain the intention of the parties plaintiffs' riparian corridors." trial court's decision granting a summary judgment motion is plaintiffs and the other property owners whose that those rights were not disturbed by the 25 october 1956 2. carteret county's right to control marshallberg harbor permanent structures in marshallberg harbor and to serve as the thus, for the reasons set forth above, we conclude that the 19 1. that there is no genuine issue of importance, and when decided will aid state agencies in the waterway, whether manmade or artificial, which is capable of deposited upon the lands herein affected, all mechanism for trial courts to amend erroneous judgments." pratt v. rights available to the owners of property "bounded or traversed by webster's real estate law in north carolina § 15-21 (4 ed. 1994)),th the trial court correctly refrained from certifying the submerged lands is available to all its citizens.'" parker v. new marshallberg harbor and that plaintiffs are and honeysuckle. on the west end, near the straits and sleepy at the mouth of sleepy creek. on its east end, near marshallberg judges hunter and geer concur. 392 s.e.2d 735, 736 (1990)). the general rule precluding immediate certified as final that portion of the trial court's order finding structure in the harbor between the owners of property abutting the depositions, answers to interrogatories, and admissions on file, wheatly, wheatly, weeks & lupton, p.a., by claud r. to the said land owners, but to the community relevant easements to provide that carteret county "ha[d] the right declaring that they have riparian rights into individual defendants and plaintiffs in light of the record and the according to the record, the proceedings in this case were8 s.e.2d 322, 324 (1998), disc. review denied, 350 n.c. 92, 532 finding of fact, the corrected order must be vacated"), and cannot plaintiffs' properties were subject to certain prescriptive are compelled to grant the joint individual defendants' motion to repair, erection, installation, and use made of any docks, mooring authority granted by the 1 june 1957 easement to include all of davis, and pelham jones. when and as required; (b) hold and save the united states free from their heirs, successors and assigns, have which plaintiffs have riparian rights in marshallberg harbor does 225, 388 s.e.2d 228, 234 (citing capune v. robbins, 273 n.c. 581, interpretation which produces the usual and 511 s.e.2d 2, 4 (1999) (citing veazey v. city of durham, 231 n.c. the joint individual defendants filed affidavits executed7 the rights granted under the easement." the upshot of plaintiffs' 166 n.c. app. 333, 340, 601 s.e.2d 915, 920 (2004) (citing oliver time it was made. when "there is any doubt 428 (1992) (citing goldston v. am. motors corp., 326 n.c. 723, 725, marshallberg harbor. instead, we will examine the issues raised by temple chadwick, gloria davis, randy additional issue pursuant to rule 54(b). on 13 april 2009, refusal to grant summary judgment in their favor with respect to with respect to this claim, n.c. gen. stat. § 1a-1, rule 54(b), the affected a substantial right given this court's decision that a before the court on appeal that proceeding to decide whether the position concerning the proper construction of the 19 october 1956 after carefully examining the language of that portion of the 19 rights that were not to be subsequently conveyed to the united of construction, the marshallberg community installed a bulkhead at sharpe v. worland, 351 n.c. 159, 162, 522 s.e.2d 577, 579 (1999) harbor. in view of the broad and unambiguous rights granted to "[s]uch discretion is not intended to displace the normal 1a-1, rule 60(a). a careful review of the relevant authorities enter unto, dig, or cut away any or all of the hereinbefore marshallberg harbor. in response, plaintiffs filed an affidavit structures in light of the trial court's decision to amend the on 21 august 2007, the trial court heard argument on the 3. prescriptive easement sum of one ($1.00) dollar, the receipt of nothing in the language of the 25 october 1956 easement properties into marshallberg harbor . . . .'" on 4 march 2009, and the joint individual defendants' dismissal motions. although entertained as to the real intention," the the boat owners of the people of marshallberg and any and all other the head of the harbor, removed the spoils, graded the banks, and does not purport to require the transfer of the entire collection consideration of that map has added materially to our analysis of together with the affidavits, if any, show that there is no genuine -20- harris, maureen harris, myron harris, question was essentially undeveloped. the area in which filed a calendaring request seeking the entry of an order ruling on one or more, but fewer than all, claims or parties and certifies 3. on 1 june 1957, a number of individuals any permanent structure in the harbor" and should serve as "arbiter prescriptive easement over the roadways, summary judgment order, and the fact that consideration of this to the united states government, to dredge and construct a channel chesnutt, clemmons, peacock & long, p.a., by gary h. clemmons, following the grant.'" williams, 102 n.c. app. at 465, 402 s.e.2d public, as compared to a private, interest in the event that some review trial court orders "not otherwise appealable, when such the benefit to be received thereby, not only to the said land participating in this appeal. over appeals from interlocutory orders, but rather refer to this respectively. appellate review of interlocutory orders is intended "to prevent the construction, maintenance, and oversight of marshallberg harbor that will result and accrue to the county of directed toward the issue of carteret county's role in the interfere with the riparian rights of plaintiffs," that the specifically, n.c. gen. stat. § 1a-1, rule 60(a), provides that: mooring stakes, anchorages, berths, or any review will serve the expeditious administration of justice;" that -19- basis alone to determine that the ruling was erroneous'" and that modification to the initial summary judgment order. "`a change in filed: 2 november 2010 order, and further certifies that there exists george ashley brown, earl mcdonald chadwick, temple strong all of carteret county's easement rights to the united states. 453, 215 s.e.2d 30, 34 (1975) (stating that appellate courts will of a large amount of information concerning events and conditions joint individual defendants filed additional affidavits from julian be dismissed and that the remainder of the trial court's order brown, julian brown, jr., earl chadwick, b. construction of easements county of those rights. the rights granted to carteret county -8- 54(b), given that a refusal to grant summary judgment is not, as a county with respect to this issue, we must examine the 19 october the united states, but rather contemplates the transfer of the installing a "flapper" to improve drainage at the head of the navigable waters `are held in trust by the state for the benefit of and plaintiffs' appeal from the trial court's refusal to grant deciding the pending summary judgment motions. in its order, the guthrie, sammy guthrie, maureen harris, tammy hill, larry state")). substituted in his place. fragmentary and premature appeals that unnecessarily delay the document no. 68 in the 1st session of the 81st congress, concerning leave resolution of this issue for the jury, which will be able to randy frye, norman fulcher, joe o'neal gardner, robert parties clearly contemplated that the county would retain the newkirk, craig newkirk, becky paul, nino giovanni pupatti, luther properties and as an incident of the ownership is couched is ambiguous, it "`may be interpreted by reference to reason for a delay on the ruling of [this] claim[] by the court," and easement, said easement to include the granted summary judgment in plaintiffs' favor with respect to the stayed further proceedings and the enforcement of the substantive complaint in which they admitted the existence of a dispute over access to marshallberg harbor, the use that the affiants had made natural,'" does not determine the extent to which a body of water prior to the construction of the harbor, the property in the 19 october 1956 easement grants "a perpetual right and summary judgment should only be afforded in "extraordinary the trial court certified that there was "no just reason for delay" summary judgment with respect to the prescriptive easement issue february 2010. what the parties elected to omit." id. (citing hartford accident enlargement thereof, and to maintain the around the harbor and paying the associated monthly fees, most orders denying requests for summary judgment on an williams v. bd. of educ., 266 n.c. 761, 764, 147 s.e.2d 381, 383 authorized by rule 54(b). on 6 april 2009, the joint individual willis, terry willis, and robert wayne workman, jr. (joint removal, repair, erection, installation, and installation, and use made of any docks, for seeking an amendment to an order or court should construe the deed of easement in the future, and the boaters, the general public, and others as boats, and a public landing[.]" into marshallberg harbor and the extent to which the county was navigable waters of the united states." arbiter of disputes arising from such structures hinges upon the is to "determine, on the basis of the materials presented to the october 1956 easement from carteret county to the united states.12 2. the county of carteret, by virtue of although defendants argue that riparian rights only attach to is rendered feckless by our order allowing certiorari") (citing performance of their duties, we will in the exercise of the 271 n.c. at 223, 155 s.e.2d at 748 (stating that "[a]ppellee's discussion, we agree with plaintiffs that the 1 june 1957 easement, & indem. co. v. hood, 226 n.c. 706, 710, 40 s.e.2d 198, 201-02 if any, to which this component of the trial court's summary litigation. veazey, 231 n.c. at 363, 57 s.e.2d at 382. finally, from interlocutory orders and judgments." travco hotels, inc. v. review of an otherwise unappealable order. matter of law." coastal plains utils., inc. v. new hanover cty., -18- these reasons, we conclude, in the exercise of our discretion, that appealable to the north carolina court of motions and the entry of the trial court's order ruling on those county to supervise permanent structures located in the harbor. as who owned "certain lands in the community of principles such as those enunciated in moses v. state highway (2007)). if, on the other hand, the language in which the easement pending summary judgment motions. on 16 january 2009, plaintiffs accordingly, we hold that [n.c. gen. stat. § no just reason for a delay on the ruling of 500 s.e.2d 666, 668 (1998); oestreicher v. am. nat'l stores, 290 heirs, successors and assigns, have riparian rights appurtenant to navigation by watercraft constitutes `navigable water' under the question], and 2) the appurtenant estate of submerged land in [the as in pratt, the trial court in this case lacked the authority to abutting the harbor, now and in the future, property owners abutting the harbor" compels the conclusion that robert guthrie, sammy guthrie, gray document no. 68. circumstances," moore v. moody, 304 n.c. 719, 720, 285 s.e.2d 811, larry gray kellum, jr., robert davis kittrell, kevin lee lawrence, must consider the extent, if any, to which each of the challenged boat owners desiring to use same," an end which could not be uses as the plaintiffs and the other property the joint individual defendants noted an appeal from judge alford's gordon moore, arthur craig newkirk, charles m. newkirk, rebecca carteret," conveyed "the perpetual rights and june 1, 1957, recorded in book 179, page 109, private, interests. the proposed harbor could only serve the summary judgment order that have been advanced by the joint the entire controversy." carriker v. carriker, 350 n.c. 71, 73, marshallberg harbor without owning any adjacent property, alleging appeal. provide that carteret county would have control over permanent add a certification relating to this issue in apparent reliance on plaintiffs, including plaintiffs' riparian corridors out into hereby are, denied. that the motion of the that references to other deeds or maps in a deed are properly guthrie, sammy lee guthrie, maureen harris, larry gray kellum, sr., judgment [] as to the plaintiffs' claims for bodies of water and that, since marshallberg harbor was constructed stemming from the 19 october 1956 easement, particularly given that the project; and (c) provide at their own expense suitable space creek, the land became wetter, with marsh grass, mutton grass, and an unappealable interlocutory order on 1 may 2007. newcomb v. cty. as of the time the contract was made," "consideration must be given "the controlling law of navigability concerning the body of water correct a clerical error in the original summary judgment order. the 19 october 1956 easement indicates that the rights granted to purpose sought to be achieved by the granting of the 19 october general proposition, a final judgment with respect to a particular plaintiffs and other landowners abutting situation;" and that, "[w]hen discretionary review is allowed, the -21- the fact that this court has rejected the distinction upon which carteret county's right to control permanent structures in samuel thomas and wife cynthia thomas, other parts of the record and errors therein giovanni pupatti, luther robinson, kenny williamson, melvin willis, terry willis, and robert wayne resolution of this case. on the other hand, the joint individual in its amended summary judgment order, the trial court attempted to and the [] request by plaintiffs for summary presented to us establishes, a proper determination of the states government to have land owners, in matters of this kind, that carteret county had the right to control permanent structures court was correct'") (quoting state v. austin, 320 n.c. 276, 290, no. coa09-1254 the summary judgment order was "made during the pendency of an county of carteret pursuant to those easements there is no just reason for delay" pursuant to rule 54(b), or when easements applicable to various roadways, parking areas and paths; not hinge upon whether the harbor was natural or manmade. in matter of law declaring that they have fact and whether the moving party is entitled to judgment as a the rights granted to carteret county under the 19 october 1956 proceedings in the appellate division. without further charge to the united states government, to marshallberg harbor, and the "roads" and paths that ran around review of interlocutory orders that are not appealable as a matter easement is that the easement "is limited to the right to dredge a. substantive facts purport to convey all of the rights granted to carteret county in allen smith, jr., jeffrey taylor, kevin williamson, sonny lands, easements, rights-of-way, and spoil-disposal areas necessary is located, the county in such cases later conveying to the united procedures of appeal, but inheres to appellate courts under our "`the arbiter of any dispute concerning the demolition, removal, appeal is docketed in the appellate division, in addition, plaintiffs point out that the 25 october 1956 easement depth, 60 feet wide, from the 6-foot contour in the straits, near ownership of properties abutting the harbor, land being the right of access over an extension of their water action [and does] not dispose of the case, but instead leave[s] it plaintiffs' request for certiorari review of the prescriptive trial court granting partial summary judgment in favor of and maintain any or all of the hereinbefore "harbor control" issue is based exclusively on what we believe to marshallberg," and "in consideration of the considered for purposes of construing that instrument, kelly v. adjacent to marshallberg harbor and filed an answer that requests validity of "the [joint individual] defendants' claimed public natural, as compared to artificial, bodies of water, this court has marshallberg harbor as an incident of their from obtaining access to marshallberg harbor across plaintiffs' stems from the trial court's refusal to grant summary judgment on judgment to add the trial court's . . . counsel for the joint individual defendants and is not summary judgment is appropriate "if the pleadings, established procedural rules governing the undertaking other actions to improve the harbor's appearance. the located adjacent to plaintiffs' property that extend into were entitled to riparian rights into marshallberg harbor, the [t]he amended order in the instant case (quoting state ex rel. rohrer v. credle, 322 n.c. 522, 527, 369 orders. during the pendency of an appeal, marshallberg harbor (a subject which the trial court attempted to and easement to enter unto, dig, or cut away any or all of the riparian rights appurtenant to their asserted a number of affirmative defenses, including the public are available to the owners of property that are adjacent to or county of carteret, united states carteret county "the arbiter of any dispute concerning" such community and the general public. of law on this issue such that such claim others as disputes may arise. psb-90. the deed in question specifically states that the united united states obtained the right to construct marshallberg harbor 19 october 1956 easement for the purpose of overseeing the proposed marshallberg harbor and some of whom used facilities in in book 173, page 352, carteret county court erred by concluding that plaintiffs have riparian rights in instead, plaintiffs argue that the relevant portion of the trial marshallberg and any and all other boat owners desiring to use the" rule 56(c)] on the issue of the [joint n.c. 118, 121-22, 225 s.e.2d 797, 800 (1976), abrogated in part by decision to amend the summary judgment order to certify an that the easements described in more detail above were granted to lawrence, d.a. lewis, jeff lewis, mark lewis, thomas lewis, denise that, "[b]ecause the trial court was without jurisdiction pursuant motions filed by the joint individual defendants. on 24 april n.c. app. 394, 396, 399 s.e.2d 137, 139 (1991) (stating that "[w]e that this portion of the trial court's summary judgment order was trial court determined: 382. however, immediate appellate review of interlocutory orders carteret county "include[d] the right to have all necessary dredged -36- 1a-1,] rule 60(a) is not an appropriate means motions for immediate review pursuant to n.c. gen. stat. § 1a-1, county registry, has the right to control the by non-residents. public, rather than a private, asset. for that reason, plaintiffs' authorized construction of an approach channel and harbor in should be affirmed. henderson v. dep't. of conservation and dev., 284 n.c. 15, 28, 199 over this issue. further, we do not read plaintiffs' certiorari arguing that the trial court's refusal to grant their motion for early years after the construction of the harbor, some individuals a result, plaintiffs requested that the court enjoin "all operation of marshallberg harbor pursuant to n.c.r. app. p. the east by core sound, on the south by the straits, and on the instead, we conclude that the 25 october 1956 easement simply just result. in its summary judgment order, the trial court ruled that newkirk, becky paul, the annie piner harbor, installing ropes and poles at the head of the harbor, and v. carteret county subject to the easements of carteret county, the harbor project" (emphasis in the original) and "is to retain -41- its totality") (quoting reynolds v. sand co., 263 n.c. 609, 139 that plaintiffs do not have the right to appeal from the trial ascertaining whether such rights exist. the united states for the sole purpose of permitting the initial the prescriptive easement issue. we agree with the joint s.e. 281, 284 (1890). n.c. gen. stat. § 1a-1, rule 60(a), "provides a limited under the 19 october 1956 easement were necessary to ensure that that immediate appellate review of a trial court's order denying court's ruling on the prescriptive easement issue are exceedingly these affidavits described the ownership of the land beneath in any way preclude carteret county from exercising any rights "immediately appealable to the north carolina court of appeals" as summary judgment order in this fashion. to language in the 25 october 1956 easement requiring "local for the construction of the project and subsequent maintenance, -6- the provisions of the project set forth in" the united states government proposes to however, find this logic persuasive. anchorages, berths, or any permanent structure in the harbor scott d. nafe, gary t. davis, defendants conceded that such roadways of the marshallberg harbor should be decided. in addition, we conclude applicable law, we conclude that plaintiffs' appeal from the trial the benefit to be received thereby, not only judge alford entered an order denying plaintiffs' amendment motion although defendant timmy potter joined the answer filed by4 terms," has no bearing on the extent, if any, to which the 19 as a result of the fact that the trial court's order9 north carolina court of appeals order, this court dismissed their appeal as having been taken from their favor with respect to this issue would expedite the final defendants addressed the extent of plaintiffs' riparian rights in purpose of inducing more commercial fishermen to visit the area, 1. on 19 october 1956, various land owners, october 1956 easement, that "it is the practice of the united extrinsic to those documents in making our decision. open to all on equal terms in accordance with road, the property consisted of pasture, water and myrtle bushes, plaintiffs are not entitled to seek immediate appellate review of the presence of language clearly establishing that the construction at various points during the course of the proceedings in5 -43- application of this principle to the facts of this case results in individual] defendants for summary judgment (1966)), make clear, the principles upon which plaintiffs rely do the county is entitled to judgment as a matter marshallberg harbor, the steps that had been taken to ensure free tilley, 136 n.c. app. 370, 374, 524 s.e.2d 83, 86 (stating that represents a final judgment with respect to the plaintiffs' claim built] an easement or right-of-way for the purpose of said the interlocutory order affects a substantial right under n.c. gen. county and the joint individual defendants filed motions seeking states army submitted a report, which was printed as part of house achieved solely through the construction and maintenance of a however, individuals constructed facilities in the harbor without as should be obvious from an examination of the textual12 of marshallberg harbor was intended to serve public, rather than government, to" construct the proposed harbor, that it is "clear luke midgett, randy steve milam, jr., larry moore, charles ward and smith, p.a., by ryal w. tayloe, for plaintiff-cross took other actions intended to facilitate use of the harbor. many permanent structure in the harbor, giving due lewis, luke midgett, randy steve milam, jr., larry moore, charles concerning that issue should be denied. thus, the trial court's in the 1950s, it is not a natural waterway in which adjoining construction, cannot reject what the parties inserted or insert hereby certifies as final the plaintiffs' co., 257 n.c. 717, 719, 127 s.e.2d 539, 541 (1962). (2009). in reviewing an order granting summary judgment, our task roads" as originally claimed, and plaintiffs must be given to its terms, and the court, under the guise of disputes may arise'" and (2) denying plaintiffs' request for the provisions of the 25 october 1956 easement granting the united parking areas, and pathways on or across the advocated by plaintiffs and believe, instead, that the 19 october materials deposited upon the lands herein affected" "later to be conclude that the trial court did not err by granting summary the original order.'" pratt, 147 n.c. app. at 774, 556 s.e.2d at construction and continued maintenance of marshallberg harbor, that 186 (2000)), or lack of prejudice. thus, the trial court lacked s.e.2d 888 (1965)). when deciding the scope of an easement, the improvements were "necessary for the safety and convenience of king, 225 n.c. 709, 716, 36 s.e.2d 220, 224 (1945), we do not there remain pending claims, as to the claim grantors. the water flows without diminution or obstruction," so that "any thus, in resolving plaintiffs' challenge to the trial court's require "all defendants to remove any boats, vessels, or other -2- -11- contract, and the situation of the parties." weyerhaeuser, 257 from the straits channel, or core sound, into and up sleepy creek, trial court properly granted summary judgment in favor of carteret individual] defendants for a public developer, inc., 179 n.c. app. 721, 730, 635 s.e.2d 485, 491 (2006) a map referenced in the record as map. no. psb-90 would be subject to the easements of the county of no. 05-cvs-780 condition of the property on which marshallberg harbor was built contention that the trial court impermissibly expanded the be the clear and unambiguous meaning of the 19 october 1956 and 25 plaintiffs with respect to the issue of whether plaintiffs had marshallberg harbor and that the joint individual defendants have body of water in question] benefitting the principal estate." we are not persuaded that the factual matters that must be examined is available "when the trial court enters a final judgment as to plaintiffs' complaint and requested the court to enter a judgment instead, the amended summary judgment order worked a substantive riparian rights issue and in favor of carteret county with respect the harbor's construction. thus, in order to decide whether the who owned property bordering "on the boat -35- `in its natural condition' reflects only upon the manner in which providing for the centralized harboring of boats, and alleviating ervin, judge. marshallberg harbor. the joint individual defendants contend that piers, or landings . . . ." bond v. wool, 107 n.c. 126, 129, 12 for defendants-appellants/appellees george brown, julian m. chadwick, norman leslie fulcher, joseph o. garner, robert wayne weeks v. n.c. dep't. of nat. res. and cmty. dev., 97 n.c. app. 215, 155 s.e.2d 746, 748 (1967)). however, as the citations to edwards, the joint individual defendants filed answers to plaintiffs'4 control over permanent structures in marshallberg harbor and making harvelland collins, p.a., by wesley a. collins, for plaintiff- disposition of this case. as a result, we hereby treat the record jeffrey wayne lewis, mark e. lewis, luke b. midgett, iii, larry recommendation that the marshallberg harbor project be approved was lands of the plaintiffs and other landowners erection, installation, and use made of any docks, mooring stakes, dismiss plaintiffs' appeal from that portion of the trial court's "an easement deed, such as the one in the case at bar, is, of carolina, by way of core sound. on 17 may 1950, congress passed of permanent structures in marshallberg harbor and to require that the language of an easement "is clear and unambiguous, effect ownership of properties abutting the harbor, provisions of the summary judgment order pending the completion of david allen lewis, denise davis lewis and thomas brian lewis, s.e.2d 700 (1950)). in ascertaining "the intention of the parties and wife, karen j. davis, and rights necessary to permit the construction, maintenance, and initial summary judgment order because that action altered the jr., jeffrey taylor, kevin williamson, sonny williamson, melvin -9- tammy hill, larry kellum, larry kellum, jr., robert kittrell, lee easements to enter upon, use, manage, improve neither change the easement's purpose nor expand the easement's 2006, plaintiffs moved to amend their complaint. on 28 april 2006, chadwick piner, timmy potter, nino alternative basis for the assertion of our appellate jurisdiction although we have dismissed plaintiffs' appeal relating to the orders pursuant to rule 60(a), are jurisdictional in nature, in re conveyed to the united states the "perpetual rights and easement to carteret county registry, respectively, and joint individual defendants and other marshallberg residents have doctrine, that "`[t]he fact that a waterway is artificial, not10 regulation of marshallberg harbor, we need not address plaintiffs' properties, and the nature of the use made of marshallberg harbor court's summary judgment order is properly before this court on easement issue should be denied. disc. review denied, 347 n.c. 138, 492 s.e.2d 26 (1997)). "`[a]ll juries; the ultimate effect of the trial court's decision is to in order to resolve the prescriptive easement issue in this case as set forth in paragraph 1 and as referenced defendants david n. jones, susanne white, and gloria davis; and3 marshallberg harbor, for the purpose of gaining access to boats or examination and cross-examination of witnesses. furthermore, the superior court before the entry of final judgment in this case, the construction of the harbor, the steps that had been taken to resist october 2000 amended order, likewise "altered county "the right to control the demolition, removal, repair, prescriptive easement issue for immediate review pursuant to rule damage during storms in seeking refuge in the shallow waters of carolina law, riparian owners have "a qualified property in the harbor to any person other than carteret county and the united harbor between the owners of property abutting the harbor, now and carteret county under the 19 october 1956 easement and the fact s.e.2d 868, cert. denied, 531 u.s. 878, 148 s.e.2d 129, 121 s. ct. williamson, kevin glen williamson, melvin gordon willis, and terry joint individual defendants have also advanced an argument relating plaintiffs noted a cross-appeal from that portion of the trial as an incident of their ownership of -42- first, the joint individual defendants argue that the trial protect the boats in the area from "sustain[ing] considerable fronts to navigable water, and the right to construct wharves, judicial system, most factual determinations are reserved for requested the court to adopt a different construction of the plaintiffs noted a cross-appeal to this court from that portion of 1. it is hereby declared and decreed question of appealability becomes moot") (citing howland v. authorized the united states to take certain actions while leaving book 179, page 109, in the carteret county registry gave carteret joint individual defendants filed a motion requesting the trial 108 s. ct. 267 (1987). in urging us to reach a contrary conclusion, plaintiffs point -24- b. procedural history estate of land extending to the shoreline of [the body of water in according to the "public trust" doctrine, "the lands under10 693 s.e.2d 208, 211, disc. review denied, __ n.c. __, __ s.e.2d __, individual defendants) appeal and plaintiffs robert timberlake installation, and maintenance of piers, docks and other structures riparian rights into the marshallberg harbor individual defendants. the 26 january 2009 summary judgment order pursuant to n.c. gen. and use made of any docks, mooring stakes, anchorages, berths, or answer in which they admitted the material allegations of -34- authority to carteret county. we disagree. larry kellum, jr., robert kittrell, lee immediate review in its initial summary judgment order. however, effect on the extent of carteret county's role in the ongoing of america, george brown, julian m. administration of justice than that of bringing cases to an brown v. weaver-rogers assocs., inc., 131 n.c. app. 120, 122, 505 marshallberg harbor served "boat owners of the people of carteret, shall be, and is, hereby, denied. as gathered from the entire instrument at the court to certify any order ruling on the parties' summary judgment prescriptive easement over the roadways, parking areas, and the issues raised by plaintiffs' challenge to the trial addition, given that marshallberg harbor is clearly "capable of thereof, and to maintain the portion cut away and removed . . . ." individual] defendants' claimed public gary t. davis, karen j. davis, and pelham jones. anchorages, berths, or any permanent structures in the harbor" and robinson, kenny rustick, thomas allen smith, thomas allen smith, material fact as to the easement rights of the trial court, whether there is a genuine issue as to any material that plaintiffs and the other property owners favor of departing from our general practice of declining to review nor defendants are entitled to judgment as a (1980) (citations omitted), and rests on the understanding that the joint individual defendants and others, including members of marshallberg community club, inc., contributed time and money for rule 54(b). with certain limited exceptions, the trial court jurisdiction and failure to state a claim for which relief could be on 15 august 2005, 18 august 2005, 29 august 2005, 21 simpson, 120 n.c. app. 863, 864, 463 s.e.2d 785, 787 (1995) nc­harbor improvement at marshallberg"), house at marshallberg harbor over an extended period of time. in our trial court properly denied summary judgment with respect to the and use made of any docks, mooring stakes, anchorages, berths, or public trust doctrine of this state." id. at __, 693 s.e.2d at marshallberg in accordance with the project outlined in house plaintiffs' claims by the court, and therefore and up sleepy creek, and into and upon the lands belonging to the as we read the record, plaintiffs have not cited any 173, page 352, carteret county registry, and their properties and as an incident of the ownership of such individuals, including most of the joint individual defendants.7 described tract or land as may be required for the construction and "public trust" and the riparian rights contexts is identical, and thomas allen smith, thomas allen smith, jr., clifford (sonny) [real property described in the 25 october 1956 easement] as may be stakes, anchorages, berths, or any permanent structure in the undersigned, and to dredge and construct a basin or boat harbor . the trial court's order (1) awarding carteret county "`the right to the river and harbor act of 1950 ("waterway from pamlico sound to mud predominating. the property served as a drainage area for run- as a result, we conclude that the trial court correctly prescriptive easement issue would be advisable. thus, for all of and maintenance of the [harbor project] or any questions of considerable interest to the public, that the certification [pursuant to rule 54(b)]. summary judgment order addressing the extent of carteret county's [joint individual] defendants for summary in error because the easements in question did not grant any such defendants samuel and cynthia thomas own real property2 be overlooked on the grounds of consent, dep't. of transp. v. -40- which is hereby acknowledged, and the benefits o'neal gardner, robert guthrie, sammy guthrie, maureen harris, tammy hill, david n. jones, larry kellum, allen smith, jr., jeffrey taylor, construction, as well as later maintenance." in granting this at 440 (quoting 2 g. thompson, commentaries on the modern law of without further charge to the united states (1970); 2 mcintosh, north carolina practice and procedure § 1782(7) sought and obtained approval from the surrounding landowners before physical facility. the language of the 19 october 1956 easement and that nothing in the 25 october 1956 easement stripped carteret "riparian rights are vested property rights that arise out of claim or party. in addition, plaintiffs have wisely refrained from corps of engineers (usace) constructed marshallberg harbor in the c.n.c.b., __ n.c. app. __, __, 678 s.e.2d 240, 243 (2009) (stating summary judgment with respect to the prescriptive easement issue facilities. the presence of the word "include" indicates that the in addition to challenging the extent to which plaintiffs11 lands herein affected" so that the united states could "dredge and rustick, thomas allen smith, thomas the acts of the parties in the use of the easement immediately united states government, to dredge and states or allow any person to go on plaintiffs' private property -15- case in which a trial court refuses to grant summary judgment. in pathways on or across the lands of the plaintiffs and other carteret county conveyed to the united states "the perpetual rights simply fail to see how defendants' claimed right to hold title to waterway project from pamlico sound to beaufort harbor, north 439 s.e.2d 143 (1993)). in concluding that a trial court lacked consider both the issue of whether plaintiffs had riparian rights and county as well, and [with] full knowledge -27- or improvement or any enlargement thereof, and to maintain the immediate appellate review of an otherwise heard," bailey v. gooding, 301 n.c. 205, 209, 270 s.e.2d 431, 434 substance of the initial order. plaintiffs vigorously contend that period of time between the hearing on the parties' summary judgment marshallberg harbor as an incident of their control the demolition, removal, repair, erection, installation, october 1956 easement gave carteret county broad rights relating to addition, while there can be no doubt that the public interest will the trial court's amended summary judgment order did not simply would support the issuance of a writ of certiorari in virtually any the meaning of the easements that resulted in the construction of that the existing waterway project be modified "to provide for a 4. pursuant to [rule 54(b)], the court the authority to amend the original summary judgment order for the (stating that, in the event that the easement is precisely of right. n.c. gen. stat. § 7a-32(c) (2009). as a result, effectively addresses the issues raised by the joint individual to moor or dock boats in plaintiffs' riparian corridor or otherwise harbor 6 feet deep, 100 feet wide, and about 600 feet long in the and in favor of the party opposing the motion." boudreau v. authority over the permanent structures in marshallberg harbor. normal rules fail to administer to the exigencies of the riparian rights to the marshallberg harbor, right to control permanent structures in marshallberg harbor for deeds of easement that are at issue here. although we agree that to the rules for construction of contracts so future, and the boaters, the general public, and others as disputes frye, norman fulcher, joe o'neal garner, defendant myron harris is deceased, and no party has been6 the easements did not grant any right of access to marshallberg -33- of such properties into marshallberg harbor, i. factual background the superior court, plaintiffs voluntarily dismissed their claims the substantive rights of the parties." . . . summary judgment order does not address this issue and given that to the nature and extent of any riparian rights that might be with "the completion of such a project, with full realization as to prescriptive easement issue is inexorably intertwined with the supervisory power to be used only in those rare cases in which declaring the rights of the parties. page 352 and book 179, page 109, carteret sleepy creek." however, house document no. 68 also indicated that prescriptive easement over the roadways, parking areas, and 812 (1982), and argue that there is nothing "extraordinary" about -23- defendants' alternative argument, there is no need for us to court's decision concerning the prescriptive easement issue should entitled to judgment as a matter of law the trial court's refusal to grant summary judgment with respect to interlocutory basis to be persuasive. although, as plaintiffs county and the united states confirms our interpretation of the 19 fundamental in determining their rights, is also of public summary judgment order to certify an additional issue pursuant to "[d]efendants correctly point out that subject matter jurisdiction easement, said easement to include the right to have all necessary consideration on appeal. (providing the protections available under the "public trust" county gave up any right that it had to oversee marshallberg harbor and briefs as a petition for the issuance of a writ of certiorari right to have all necessary dredged materials determine the extent of plaintiffs' riparian rights in addition to joint individual defendants' challenge to this portion of the trial the land on which marshallberg harbor was built prior to the as a general matter, "there is no right of immediate appeal dredged materials deposited upon the lands herein affected, all easements "do not confer upon [any person] or entity the right to williamson, melvin willis, terry willis, portion of the trial court's amended summary judgment order jr., larry moore, charles newkirk, craig nature. prescriptive easement issue as a matter of right and that easements, and the creation of certain neighborhood public roads or who abut the harbor, and neither plaintiffs which grants carteret county the right "to enter upon, use, manage, susanne white, kevin williamson, sonny public roads by prescription or implied dedication.6 [n.c. gen. stat. § 1a-1,] rule 60(a) when it alters the effect of williams v. abernethy, 102 n.c. app. 462, 464-65, 402 s.e.2d 438, harris. carteret county of any rights that it may have obtained under the judgment order is immediately appealable. assigned, transferred or reconveyed to the united states alternative request for the issuance of a writ of certiorari. so as to increase the burden of the servient tract." swaim v. in order to satisfy these conditions, various property owners argument is inconsistent with the clear language of the 19 october and others as disputes may arise." on appeal, plaintiffs contend pathways on or across the lands of the plaintiffs and other defendants . . . (a) from entering upon the lands of plaintiffs, build any improvement, including docks or piers, upon the property purpose of certifying additional issues for immediate appeal completion of the project. the three easements provided, in water frontage belonging, by nature, to their land, the chief on or about 28 june 1948, the chief engineer of the united for further action by the trial court . . . to settle and determine the second issue which plaintiffs seek to raise on appeal carteret county, the united states, and numerous individual judgment [pursuant to n.c. gen. stat. § 1a-1, connection with the construction of marshallberg harbor so as to acquiesce in the joint individual defendants' request that we or core sound, into and up sleepy creek, and "`[t]he question for review is whether the ruling of the trial granted, denied the material allegations of plaintiffs' complaint, the prescriptive easement issue. as we have already concluded, the consideration of the various challenges to the trial court's robert wayne workman, jr., 1956 easement describing the overarching purpose of the of marshallberg harbor, the docks that had been constructed in appeal by certain defendants and cross-appeal by plaintiffs october 1956 easement. according to the 25 october 1956 easement, the public' and `the benefit and enjoyment of north carolina's reducing the time needed to travel to the fishing grounds, easements . . . for a boat basin and other harbor, grading and otherwise improving the roads around the (citing in re protest of mason, 78 n.c. app. 16, 337 s.e.2d 99 such mistakes may be so corrected before the claim and the court's order that they are the trial court did not certify the issue of carteret county's -5- 317 n.c. 715, 347 s.e.2d 457 (1986). a. appealability the proofs offered at the hearing must be drawn against the movant built and maintained docks in the harbor and walkways around its with "reason and common sense" and adopt the required for the construction and maintenance of the aforesaid work c. substantive legal issues piedmont natural gas co., inc., 332 n.c. 288, 291, 420 s.e.2d 426, moved to dismiss plaintiffs' complaint for lack of subject matter government," for the purpose of constructing the necessary harbor easements of carteret county, said claim is eastern end of carteret county on a peninsula that is "bounded on petition to encompass that portion of the trial court's order off from the west end of marshallberg, with a three foot drainage lewis, jeff lewis, mark lewis, thomas lewis, denise lewis, in house document no. 68, the board of engineers recommended suffered no prejudice as a result of the trial court's action. the 19 october 1956 easement to the united states, the united 2. that there is no genuine issue of demolition, removal, repair, erection, installation, and use made and into and upon the lands belonging to the undersigned, and to the river and harbor act of 1950 ("waterway use made of any docks, mooring stakes, -17- property[)] are not "neighborhood public use rule 60(a) to add a certification pursuant to rule 54(b) to the owners desiring to use same" and that it was "necessary to obtain not constitute separate grounds for assuming appellate jurisdiction (1946)); see also stonecreek sewer ass'n v. gary d. morgan robert timberlake newcomb, iii, decision to deny summary judgment with respect to the issue of the matter of law on that issue. to the purpose to be accomplished, the subject-matter of the court's amended summary judgment order awarding carteret county hanover cty., 173 n.c. app. 644, 653, 619 s.e.2d 868, 875 (2005) (2007). judgment order on the basis of an analysis of the relevant 105, 399 s.e.2d 24, 25 (1990)). instead, this court stated that the county of carteret . . . a perpetual right after its construction, marshallberg harbor has been used by utilities," conveyed "the perpetual rights and marshallberg harbor is now located originally consisted of a cove brown, julian brown, jr., earl chadwick, temple chadwick, of any docks, mooring stakes, anchorages, berths, or any permanent harbor (milton willis lane and the dirt/shell luther robinson, kenny rustick, thomas allen smith, thomas however, the limitations on a trial court's authority to amend riparian rights into marshallberg harbor; denying plaintiffs' west by sleepy creek." marshallberg presently has a population of development of the record available as the result of the relief consistent with that sought by plaintiffs. consistent with the purpose and intent of the maintain marshallberg harbor. however, nothing in the language of its authority to correct clerical errors under n.c. gen. stat. § (1985), disc. review denied, 315 n.c. 588, 341 s.e.2d 27 (1986) the incorporation of house document no. 68 in its entirety into the [carteret county], later to be assigned, transferred or reconveyed language giving the county any other rights . . . ." we do not, and culture include commercial fishing and boat building. relating to the riparian rights issue in light of the trial court's government, to said county, later to be lewis, thomas lewis, and wife, denise "harbor control" issue, we conclude that we will grant certiorari summary judgment order should be, and hereby is, affirmed in part certification and establishing grounds for on the property specified in the 25 october 1956 easement does not in seeking the issuance of a writ of certiorari, plaintiffs advantage growing out of the appurtenant estate in the submerged property owners whose property abuts marshallberg harbor, their states certain maintenance rights are not explicitly exclusive. 2. on 25 october 1956, carteret county, in 357, 361, 57 s.e.2d 377, 381 (1950)). since the trial court's on our own motion to permit us to address this question on the october 1956 deeds of easement, we have not considered any evidence oversight of a small boat harbor for the use of the marshallberg delay. all necessary rights-of-way for the said improvement," note that course, a contract." weyerhaeuser co. v. carolina power & light s.e.2d 523 (1999) (citations omitted); see also lovin v. crisp, 36 -25- available to it under the 19 october 1956 easement. in other fact.'" gwathmey v. state of north carolina, 342 n.c. 287, 300, believe, as the joint individual defendants contend, that the and carteret county granted certain easements which facilitated the n.c. app. 185, 189, 243 s.e.2d 406, 409 (1978) (stating that the an order is considered substantive and outside the boundaries of structures in the harbor) in their challenge to the trial court's court's summary judgment order is immediately appealable based on improve and maintain" a tract of land located at the head of county the responsibility for overseeing the installation and use merits. we have made this determination for a number of related 212. given that the concept of "navigability" as used in the m. brown, sr., and david allen lewis describing the condition of 21(a)(1) (2010) and grant that petition. subject to the easements of the county of affirmed in part; dismissed in part. before the court in order to evaluate the issues presented for our plaintiffs own certain tracts of property that adjoin1 on 23 february 2009, the joint individual defendants noted an 19 october 1956 easement. on the contrary, the fact that the omitted), cert. denied, 379 u.s. 930, 13 l. ed. 2d 342, 85 s. ct. land as may be required for the construction not affect such a right. miller v. swann plantation dev. co., 101 carteret dated october 19, 1956, and recorded appellants/appellees scott d. nafe, gary t. davis, karen j. and recognition that these benefits far exceed watercourses are regarded as navigable in law that are navigable in brown paul, nino pupati, luther james robinson, kenneth e. rustick, -31- property in any way, including the demolition, construction, be assigned, transferred or reconveyed to the united states from [the] owners [of the land upon which the harbor was to be deeds of easement are construed according of such a project, with full realization as to demolition, removal, repair, erection, road adjacent to plaintiff newcomb's easements thereon for the purpose of executing and carrying out the allowed plaintiffs to circumvent the staton, 147 n.c. app. 771, 774, 556 s.e.2d 621, 623 (2001). more the granting and giving of an easement over 1956 easement from certain landowners to carteret county and the 25 may arise."14 items of personal property from plaintiffs' property and from obtaining permission from the surrounding landowners to do so. september 2005, and 23 september 2005, respectively, carteret -7- 624 (quoting buncombe cty. ex rel. andres v. newburn, 111 n.c. app. -22- -39- to the question of how issues related to permanent structures in document no. 68, 81 congress, 1 session.st st plaintiffs argue on appeal, based on the language in the 19 owners of the people of marshallberg, and any said claim and ruling thereon is immediately point out, a decision in their favor on the prescriptive easement court's reasoning . . . was incorrect, we are not required on this rule 54(b). on 26 january 2009, the trial court entered an order8 of law as to such easement rights as in paragraph (2) of the order section of this before final judgment") (quoting blackwelder v. dept. of human and stated that the trial court's ruling on this claim should be october 1956 and 25 october 1956 easements authorize carteret ii. legal analysis whose property abuts marshallberg harbor, on 26 july 2005, plaintiffs filed a complaint against1 addressing the county's authority over the harbor. as a result, we 183, 187 (1963) (citing sparrow v. tobacco co., 232 n.c. 589, 61 the attendant circumstances, to the situation of the parties, and words, we do not believe that the 25 october 1956 easement conveyed to [n.c. gen. stat. § 1a-1,] rule 60(a)[,] to add the omitted harbor in the interests of the public. water" are derived from "two distinct properties: 1) the principal issue on the merits at this time will expedite the ultimate and construing certain easements to afford defendant carteret are so inextricably intertwined with the other issues that are the joint individual defendants consented to the inclusion of a the general public, for various purposes. following the completion in the harbor between the owners of property of these activities were organized and undertaken in earlier years easement to enter unto, dig, or cut away any from core sound and a connecting harbor at resources, 60 n.c. app. 331, 335, 299 s.e.2d 777, 780 (1983)). determinations. we do not find any of plaintiffs' arguments in any dispute concerning the demolition, conditioned upon assurances from "responsible local interests" that further proceedings must necessarily occur in the carteret county hereinafter set forth; and -14- thus, we do not construe the 25 october 1956 easement as stripping resolve by construing the easements originally granted in to have riparian rights into marshallberg harbor and the fact that the public dock, to the entrance of sleepy creek and thence to the reviewed on a de novo basis. virginia elec. & power co. v. described, "the plain language . . . and terms control") (citing the joint individual defendants rely in the "public trust" context, appeals. real property § 385, at 528). since an easement holder "may13 beaufort harbor, n.c.-harbor improvement at marshallberg"), which 25 october 1956 easement are not persuasive. from pamlico sound to beaufort harbor, supervisory jurisdiction given us, answer the question") (citations lands herein" was only part of the rights granted pursuant to the plaintiffs. newcomb, iii, scott d. nafe, gary t. davis, and wife, karen j. maintenance of the aforesaid work or improvement or any enlargement described tract of land for a public landing (citing dkh corp. v. rankin-patterson oil co., 348 n.c. 583, 585, from order entered 9 march 2009 by judge russell j. lanier, jr., in own real property adjacent to marshallberg harbor and filed an or anchoring boats within plaintiffs' riparian corridors," and and all other boat owners desiring to use which the joint individual defendants rely, we do not believe that the language of the 25 october 1956 easement between carteret is navigable. fish house, inc. v. clarke, __ n.c. app. __, __ , defendants george brown, julian m. brown, julian brown, jr., incorporated into the deeds of easement based on the principal upon county" and that the easements recorded at book 173, page 352, and by adding the trial court's rule 54(b) of rights created by the original easement from carteret county to -32- the purpose of replacing the bulkhead, installing street lights -30- 1. riparian rights potential malarial conditions. according to house document no. 68, almost always be served by the expeditious resolution of cert. denied, 276 s.e.2d 283 (1981)). "all inferences of fact from 464 s.e.2d 674, 682 (1995) (quoting state v. baum, 128 n.c. 600, -16- assigned, transferred or reconveyed to the -3- the county of carteret shall be the arbiter of to control the demolition, removal, repair, erection, installation, contention that this appeal should be dismissed as premature . . . portion cut away and removed, as part of the navigable waters of navigation by watercraft," the owners of property bordering the interests [to] furnish free of cost to the united states of america 327 (1964)). see also edwards v. city of raleigh, 240 n.c. 137, douglas willis. the prescriptive easement issue, we must first address the extent, "[t]here is no more effective way to procrastinate the lands of the plaintiffs and other property we hold that the trial court correctly concluded that the extent to was granted." shingleton v. state, 260 n.c. 451, 457, 133 s.e.2d the vicinity of marshallberg" in connection with an existing hear all relevant witnesses and make any necessary credibility property owners abutting the harbor . . . ." on 9 march 2009, the general supervision and control over the proceedings of the right to "have all necessary dredged materials deposited upon the trial court's summary judgment order is clearly interlocutory in described in house document no. 68 was the creation of a harbor to from plaintiff pelham t. jones on 16 august 2007 discussing the -4-


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise