tag: North Carolina Land Use Litigator: North Carolina COA Speaks On the Public Trust Doctrine and "Man-Made" Waters

Monday, October 11, 2010, 12:02 PM

North Carolina COA Speaks On the Public Trust Doctrine and "Man-Made" Waters


The Public Trust Doctrine requires that the State of North Carolina preserve certain property for use by and in trust for the general public. In the context of navigable waters, according to the Doctrine, members of the public enjoy certain rights separate and distinct from water rights incident to the ownership of riparian or littoral property. The North Carolina Court of Appeals recently held that “the public ha[s] the right [] to unobstructed navigation as a public highway for all purposes of pleasure or profit, of all watercourses, whether tidal or inland, that are in their natural condition capable of such use.” See Bauman v. Woodlake Partners, LLC, 681 S.E.2d 819, 824 (N.C. App. 2010). However, the line of authority cited by the Court in the Bauman decision does not address the intersection between such a “natural condition” and man-made canals.

In Fish House, Inc. v. Clarke, No. COA09-1047 (May 18, 2010), the Court of Appeals confronted this issue. In Fish House, Inc., the Court ruled that a man-made canal, called the Old Sam Spencer Ditch, is touched by the Public Trust Doctrine and, therefore, Fish House, Inc. cannot maintain an action for trespass on those waters. The Court cited, or more accurately adopted, the “particularly persuasive” analysis of a South Carolina opinion in rendering its decision: “The fact that a waterway is artificial, not natural, is not controlling. When a canal is constructed to connect with a navigable river, the canal may be regarded as part of the river.” Quoting Hughes v. Nelson, 303 S.E.2d 24, 25 (S.C. 1990). Referencing additional authority, including the CAMA Handbook for Development in Coastal North Carolina, the Court made clear that “‘in its natural condition’ [of the test articulated in Bauman] reflects only upon the manner in which the water flows without diminution or obstruction” and implied that “natural condition” has nothing to do with the manner in which the body of water is developed or created.

Making this a daily double, the Fish House, Inc. Court also addressed the argument that the defendant, an individual, had no standing to litigate the Public Trust Doctrine, an embodiment of the rights of the State of North Carolina. The Court dispensed with the standing argument by noting the important distinction between privately litigating the rights of the State on behalf of the State (no standing) and raising the Public Trust Doctrine in defense to a trespass action “to ensure that Plaintiff does not prevent [the Defendant] from enjoying these rights” (standing).

Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups. He regularly represents a wide variety of clients in land use issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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