
71 S.E.2d 474 (1952)
235 N.C. 689
RESORT DEVELOPMENT CO.
v.
PARMELE.
No. 607.
Supreme Court of North Carolina.
June 11, 1952.
*478 Carr & Swails, Wilmington, for plaintiff-appellee.
Kellum & Humphrey, Wilmington, for defendant-appellant.
WINBORNE, Justice.
The assignment of error, based upon exception to the signing of the judgment from which this appeal is taken, presents for decision one question: Do the facts shown in the agreed statement of facts on which this controversy without action is predicated, support the judgment rendered? Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15; Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555; Hall v. Hall, N.C., 71 S.E.2d 471, and cases cited therein.
While a similar factual situation does not seem to have been presented to this Court, we hold that, in the light of pertinent statutes, the common law, decisions of this Court of kindred character and general principles relating to navigable waters, the agreed facts do not support the judgment, and that error is made to appear. Decision on the first two of the three questions stated in the judgment are the determinative factors.
The answer to first question: "Is the plaintiff the owner of the land described in paragraph 2 of the agreed statement of facts?" pivots on the answer to the fundamental question as to whether on 3 December, 1841, at the time Grant 1649 was issued to Stephen Sneeden, the land therein described, the locus in quo, covered by navigable waters, was the subject of entry by, and grant to a private citizen.
In this connection it is appropriate to note that the Revised Statutes of North Carolina (1836) then in effect provided in Chapter 22, Sec. 1, that "All such parts of the common law, as were heretofore in force and use within this State, or so much of the said common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State, and the form of government therein established, and which has not been otherwise provided for in the whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State."
Previously the General Assembly of North Carolina, beginning in 1711, had enacted statutes declaring that "the common law is, and shall be in force in this government." See Laws of N.C.1711, Chap. 1, Sec. III (Published in Vol. 25 The State Records of North Carolina by Clark), *479 Laws of N.C.1715, Chap. 31, Sec. VI, Laws of N.C.1715, Chap. 66, Sec. VIII, Laws of N.C.1749, Chap. 1, Sec. VI, Laws of 1777 (First Session) Chap. 25, Laws of 1777 (Second Session) Chap. XIV, Sec. II, Laws of N.C.1778 (First Session) Chap. V, Sec. II.
Too, it is pertinent to ascertain what are navigable waters both at common law, and under the laws of this State. While much has been written on the subject, it seems clear that by the rule of the common law, adopted in England, navigable waters are distinguishable from others by the ebbing and flowing of the tides, that is, the ebb and flow of the tide was the test of a navigable stream. Hatfield v. Grimstead, 29 N.C. 139; Hodges v. Williams, 95 N.C. 331; Bond v. Wool, 107 N.C. 139, 12 S.E. 281. And it is said that for a time our courts adhered to that definition of the common law. But "the rule now most generally adopted, and that which seems best fitted to our own domestic conditions, is that all water courses are regarded as navigable in law that are navigable in fact", Douglas, J., in State v. Baum, 128 N.C. 600, 38 S.E. 900, 901. See also Wilson v. Forbes, 13 N.C. 30; Collins v. Benbury, 25 N.C. 277; s. c. on rehearing, 27 N.C. 118; Fagan v. Armistead, 33 N.C. 433; State v. Dibble, 49 N.C. 107, 108; State v. Glen, 52 N.C. 321; State v. Narrows Island Club, 100 N.C. 477, 5 S.E. 411; State v. Eason, 114 N.C. 787, 19 S.E. 88, 23 L.R.A. 520; Manufacturing Co. v. Albemarle R. R. Co., 117 N.C. 579, 23 S.E. 43; Shepards Point Land Co. v. Atlantic Hotel, 132 N.C. 517, 44 S.E. 39, 61 L.R.A. 937; State v. Twiford, 136 N.C. 603, 48 S.E. 586.
In the cases of Collins v. Benbury, supra, the headnotes epitomizing the opinions of the Court are to the effect that what is a navigable stream in this State does not depend upon the common-law rule, but that waters, which are sufficient in fact to afford a common passage for people in sea vessels, are to be taken as navigable; that is, that all waters which are actually navigable for sea vessels are to be considered navigable waters under the laws of this State.
Tested by these rules the land in question is covered by waters which come within the common-law tidal rule, and the rule of navigability in fact applied in North Carolina.
Moreover, as stated in State v. Baum, supra, under the common law of England, streams, distinguishable as navigable waters, were said to be publici juris, that is, of public right,owned by the public and not by any private person,such common property that "anyone can make use of it who likes." Black's Law Dictionary. And, hence, land covered by navigable waters could not be granted. State v. Baum, supra.
And on the other hand, decisions of this Court hold that waters navigable in fact are navigable in law, and to that extent and for that purpose are publici juris of public right. State v. Narrows Island Club, supra.
In this connection, it appears that in the case of Tatum v. Sawyer, 9 N.C. 226, involving a grant from the State, bearing date 21 June, 1819, conveying certain land in Currituck County, near Currituck Inlet, this Court, in opinion by Henderson, J., decleared that "Lands covered by navigable waters are not subject to entry under the entry law of 1777, not by any express prohibition in that act, but, being necessary for public purposes as common highways for the convenience of all, they are fairly presumed not to have been within the intention of the Legislature."
But in the Revised Statutes of North Carolina (1836), Chap. 42, entitled "An act concerning entries and grants of land," the Legislature provided, in Section 1, "That all vacant and unappropriated lands belonging to this State shall be subject to entry in the manner herein provided except in the cases hereinafter mentioned * *" (not pertinent here), but omitted any reference to the provisions of the Act of 1777.
And thereafter the Legislature at its 1846-47 session passed an act, Laws of 1846-47, Chapter 36, in which it is declared "That it shall not be lawful to enter any land covered by any navigable sound, river *480 or creek; and that entries of land lying on any navigable water, shall be surveyed in such manner, that the water form one side of the survey, and the land be laid off back from the water."
And the Legislature, at its 1854-55 session enacted a statute, Chapter 18, Section 1, that "all vacant and unappropriated lands, belonging to the State, shall be subject to entry by any citizen thereof, in the manner hereinafter provided, except: (1) Lands covered by navigable water, and others not here pertinent." This last statute has been re-enacted in the Code as Section 2751; Revisal 1693, C.S. § 7540, now G.S. § 146-1.
And in Hatfield v. Grimstead, supra, an appeal from Currituck County, at Spring Term 1846, and involving two grants, dated in 1839, located so as to take in a small quantity of the marshes at the banks, and then run out with the channel about 1½ miles into the Sound, the trial court held that the Sound was not the subject of entry. This Court, in opinion by Ruffin, C. J., wrote as follows: "His Honor probably founded his opinion that the grants to the plaintiff were void upon Laws 1715, Rev. Code 6, Sec. 3, and of 1777, Ch. 114, Sec. 10, which directed how land lying on a navigable water should be entered and surveyed, not adverting to the circumstance that those provisions were not in force in 1839, when the grants were issued. Whether the locus in quo would have been the subject of entry or not, under those acts, it is not material to inquire; for the Revised Statutes, Ch. 42, omits the acts under consideration, and so left the matter at common law. Now, at common law this land could clearly be granted by the sovereign, for this case does not state any regular flood and ebb of the tide in Currituck Sound since the closing of the inlet. The omission in the act of 1836 has been supplied by an act at the late session of the Assembly which re-enacts those parts of the acts of 1715 and 1777; but while they were dormant, and the common law alone in force, the grants to the plaintiff were valid."
And in Ward v. Willis, 51 N.C. 183, involving boundaries of the town of Beaufort as contained in its charter, Ruffin, C. J., adverting to the above statutes, and cases, had this to say: "The Acts of 1715 and 1777, in regulating entries and surveys on which to found a grant, provided that land lying on any navigable water should be surveyed so that the water should form one side of the survey, whether the water was the sea or a bay, creek or river. In Tatum v. Sawyer, supra, Judge Henderson intimated that those provisions could not be considered as prohibiting the entry of land covered by navigable waters, but said, nevertheless, that it was not subject to entry, because, being necessary for public purposes as common highways, it was to be presumed not to have been within the intention. It happened, however, that in the revisal of 1836 those parts of the previous acts were omitted, and therefore the Court felt bound to hold in Hatfield v. Grimstead, 29 N.C. 139, that entries of land in Currituck Sound were good, after it ceased to have a tide or be navigable by reason of the closing of the inlet, or rather of such parts of the sound as were frequently not covered by water."
In the light of these decisions we are constrained to hold that the provisions of the Revised Statutes (1836), Chapter 42, Sec. 1, did not have the effect of abrogating, or repealing the common law rule that navigable waters were then publici juris, and hence not subject to entry and grant.
The answer to the second question: "If the plaintiff is not the owner of all the land described in paragraph 2 of the agreed statement of facts, is it the owner of that portion of said land which is described in paragraph 11 of the agreed statement of facts?" is found in the fact that that portion of the locus in quo, described in paragraph 11 is covered by navigable waters, and is not swamp lands within the meaning of G.S. § 146-4. Hence, the North Carolina Board of Education was not vested with authority to convey it. The cases relied upon by appellees are distinguishable in factual situation.
The judgment below is reversed.
