              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-360

                               Filed: 16 October 2018

Richmond County, No. 15 CVS 000755

EVERETT’S LAKE CORPORATION, Plaintiff,

             v.

LEWIS EDWARD DYE, JR., Defendant.


      Appeal by Plaintiff from Amended Order entered 30 November 2017 by Judge

Richard T. Brown in Richmond County Superior Court.           Heard in the Court of

Appeals 19 September 2018.


      Anderson, Johnson, Lawrence & Butler, L.L.P., by Steven C. Lawrence, for the
      Plaintiff-Appellant.

      Lewis Edward Dye, Jr., pro se.


      DILLON, Judge.


      Plaintiff Everett’s Lake Corporation owns Everett’s Lake (the “Lake”), a non-

navigable lake in Richmond County. Defendant Lewis Edward Dye, Jr., owns a small

tract of land, comprising approximately two-tenths of an acre, which abuts the Lake.

This dispute concerns whether Defendant, through his chain of title in his small tract,

also owns the right to access the Lake.

                                    I. Background
                             EVERETT’S LAKE CORP. V. DYE

                                  Opinion of the Court



      As of 1948, the Lake and the land around the Lake were all owned by the Lamb

family.

Defendant’s Chain of Title

      In 1948, the Lambs conveyed a thirty-acre tract which abutted the Lake to the

Entwistles. In the Lamb’s 1948 deed to the Entwistles (the “1948 Deed”), the Lambs

not only conveyed the tract of land, but also conveyed certain rights to use the

adjacent Lake for non-commercial purposes. Specifically, the 1948 Deed stated as

follows:

            The parties of the first part hereby convey unto the parties
            of the second part riparian water rights in Everett’s Lake
            on that portion of the above described property bounded by
            the said Everett’s Lake. (This deed is made subject to this
            restriction. The parties of the second part shall not use the
            said Everett’s Lake for any commercial purpose.) It is
            further understood and agreed that the parties of the first
            part are hereby conveying riparian rights in Everett’s Lake
            in connection with a tract of Land owned by the parties of
            the second part consisting of about 30 acres and located on
            the South side of the said Everett’s Lake.
            [...]
            TO HAVE AND TO HOLD the aforesaid tract or parcel of
            land, and all privileges and appurtenances thereto
            belonging, to the said parties of the second part, their heirs
            and assigns, to their only use and behoof forever.

This deed was duly recorded in 1948.

      In 1988, the Entwistles conveyed a 3.55-acre portion of their property abutting

the Lake to the Bakers. In 1989, the Bakers conveyed two-tenths of an acre abutting

the Lake from their 3.55-acre tract to the Threadgills. And in 2015, the Threadgills


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                                   Opinion of the Court



conveyed this two-tenths of an acre tract, abutting the Lake, to Defendant and his

wife. In each of the above-described conveyances, the grantor conveyed not only a

tract of land, but also riparian rights, as described in the 1948 Deed.

Plaintiff’s Chain of Title in the Lake

        In 1958, ten years after the Lambs conveyed the thirty-acre tract to the

Entwistles, the Lambs conveyed the Lake itself to Plaintiffs by warranty deed. This

deed contained the following exceptions:

              [E]xcept as to such riparian and other rights which any
              firm or corporation or any person or persons may have in
              and to Everett’s Lake and use thereof, irrespective of the
              method by which such rights may have been acquired.

The Dispute

        At some point, Plaintiff formed a fishing club (the “Club”), charging members

for the right to fish the Lake. In 2007, Plaintiff performed extensive work on the

Lake. Plaintiff had an expectation that adjacent landowners would join the Club and

pay annual dues of $500.00 if they desired to fish on the Lake. Upon the purchase of

his lot in 2015, Defendant began to fish the Lake without joining the Club. As a

result, Plaintiff brought a suit for civil trespass against Defendant.     Defendant

answered and counterclaimed, seeking a declaration that he had the right to use the

Lake.

        A bench trial was held in Richmond County Superior Court. The trial court

declared that Defendant did have valid riparian water rights “for the reasonable use


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                                         Opinion of the Court



and enjoyment of Everett’s Lake body of water by virtue of such rights acquired from

[D]efendant’s predecessors entitled to his real property.” Plaintiff timely appealed.

                                      II. Standard of Review

        We review the Amended Order and its findings of fact for competent,

supporting evidence.         The trial court’s conclusions of law are reviewed de novo.

Weaverville Partners v. Town of Weaverville Bd. of Adj., 188 N.C. App. 55, 57, 654

S.E.2d 784, 787 (2008).

                                            III. Analysis

        The central issue in this matter is whether the trial court correctly determined

that Defendant, as the owner of his small tract, has “riparian rights” in the Lake,

which include the right to make personal use of the Lake. For the following reasons,

we affirm.

        The trial court agreed with Defendant that Defendant has the right to fish the

Lake based on the “riparian right” originally granted to his predecessor in title in the

1948 Deed. Based on the language in the 1948 Deed, we also agree. We conclude

that “riparian rights” in the Lake were part of the “bundle of sticks” that the Lambs

conveyed to Defendant’s predecessor in title.1 As the owners of the Lake itself, the



        1 Property has been described as a “bundle of sticks,” whereby various people/entities could
own different rights in the same real estate. See United States v. Craft, 535 U.S. 274, 278 (2002)
(describing property as a “bundle of sticks”). For example, one may own a life estate interest in certain
property, another may own a remainder interest in that property, another may have an easement to
use the property, the State has the right to condemn the property, and a bank may have a lien against



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                                      Opinion of the Court



Lambs had the right to exclude others from the Lake. See Hildebrand v. S. Bell Tel.,

219 N.C. 402, 408, 14 S.E.2d 252, 256 (1941) (recognizing that the right to own

property includes “the right to exclude others from its use”).             When the Lambs

executed the 1948 Deed to Defendant’s predecessor in title, the Lambs conveyed

“sticks” representing fee simple absolute ownership in the thirty acres adjacent to the

Lake. The Lambs also essentially gave up a “stick,” namely their right to exclude

Defendant’s predecessor in title from using the Lake as a “riparian right” owner, so

long as these rights were used for non-commercial purposes. Therefore, when the

Lambs conveyed their fee simple interest in the Lake itself to the Plaintiff in 1958,

the Lambs could only convey the sticks they still owned in the Lake, which did not

include the “riparian rights” nor the “right to exclude” sticks already conveyed to

Defendant’s predecessor in title. In fact, the 1958 deed to the Plaintiff recognizes

that the fee simple interest in the Lake being conveyed by the Lambs was subject to

the riparian rights in the Lake already owned by others.

       Plaintiff argues that the Lambs’ conveyance in the 1948 Deed of “riparian

water rights . . . on that portion of the [thirty-acre tract] bounded by [the Lake]” was

ambiguous and, therefore, did not convey any rights to use the Lake. We disagree.

Indeed, our Supreme Court has held as follows with regard to interpreting language

in a deed:


that property. See also In re Greens of Pine Glen, 356 N.C. 642, 651, 576 S.E.2d 316, 322 (2003)
(describing that property includes a “bundle of rights” which can be held by various parties).

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                                    Opinion of the Court



             It is . . . a general rule that the deed must be upheld, if
             possible, and the terms and phraseology of description will
             be interpreted with that view and to that end, if this can
             reasonably be done. The Court will effectuate the lawful
             purposes of deeds and other instruments if this can be done
             consistently with the principles of rules of law applicable.

N.C. Self Help v. Brinkley, 215 N.C. 615, 619, 2 S.E.2d 889, 892 (1939). We conclude

that the phraseology and terms used in the 1948 Deed clearly evince an intent to

convey the right to enjoy the Lake for non-commercial purposes: “[The Lambs] are

hereby conveying riparian rights in Everett’s Lake” and “[Defendant’s predecessor in

title] shall not use the said Everett’s Lake for any commercial purpose.” Our Supreme

Court has held that “riparian rights” include the right of a landowner “to make

reasonable use of the waters” adjacent to his land. Dunlap v. Carolina Power & Light,

212 N.C. 814, 818, 195 S.E. 43, 46 (1938). This right includes the right to fish. See,

e.g., Hampton v. N.C. Pulp, 223 N.C. 535, 548, 27 S.E.2d 538, 546-47 (1943)

(recognizing the right to fish is a riparian right).

      Plaintiff further argues that the 1948 Deed from the Lambs to the Entwistles

only created an “easement in gross.” That is, Plaintiff argues, the 1948 Deed only

conveyed a personal right to the Entwistles to use the Lake which was not

transferable to successors in title. We disagree.          We conclude, rather, that the

language of the 1948 Deed did not convey an easement in gross, but rather a right

which ran with the portion of the thirty-acre tract which abutted the Lake.




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                             EVERETT’S LAKE CORP. V. DYE

                                   Opinion of the Court



      The 1948 Deed grants riparian rights “on that portion of the above described

property bounded by the said Everett’s Lake.” The 1948 Deed states that the rights

were being conveyed “in connection with a tract of land owned by the parties of the

second part consisting of about 30 acres and located on the South side of the said

Everett’s Lake.” Finally, the 1948 Deed states that the grant was to Defendant’s

predecessor, “their heirs and assigns to their only use and behoof forever.” The

language in the 1948 Deed indicates an intention on behalf of the Lambs for the

riparian rights to run with the land, at least that portion of the thirty-acre tract which

directly abutted the Lake. Therefore, we affirm that Defendant does have valid

riparian rights in the Lake, including the right to fish.

      We note that the trial court did not base its ruling on the “public trust

doctrine.” Indeed, Defendant made no argument that his right to fish the Lake stems

from the application of the public trust doctrine. The public trust doctrine applies

only to those bodies of water which are determined to be navigable. See, e.g, State ex

rel. Rohrer v. Credle, 322 N.C. 522, 526, 369 S.E.2d 825, 827-28 (1988). And the trial

court concluded that the Lake is not a “navigable” lake but rather a lake that is

privately owned by Plaintiff. This determination is not in dispute on appeal.

      Further, though not argued by either party, we recognize that the trial court’s

holding is not based on a theory that Defendant’s riparian rights arise from the

common law. Our Supreme Court has held that where the boundary of a tract of land



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                            EVERETT’S LAKE CORP. V. DYE

                                   Opinion of the Court



is the edge of a non-navigable swamp, there is no “common law” right of that land-

owner to use the swamp. See Kelly v. King, 225 N.C. 709, 714, 36 S.E.2d 220, 223

(1945). And, here, Defendant’s deed cites the edge of the Lake, which the trial court

found to be non-navigable, as one of the boundaries. Kelly, though, is not applicable

to the present case as Defendant’s right springs from an express grant contained in

his chain of title, not from the operation of some common law principle.

                                    IV. Conclusion

      The trial court correctly concluded that Defendant has certain riparian rights

to make reasonable use and enjoyment of the Lake for non-commercial purposes

based on the grant of “riparian rights” in Defendant’s chain of title.

      AFFIRMED.

      Judges ELMORE and DAVIS concur.




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