Public Access to the Water-1989

1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
DCM COPY DCM COPY
lease do not remove!!!!!
Division of Coastal Management
Public Access to the Water
Elizabeth City, North Carolina
January 1989

1
n
The preparation of this report was financed in part through a c
provided by the North Carolina Coastal Management Program, throe
' funds provided by the Coastal Zone Management Act of 1972 which
administered by the Office of Ocean and Coastal Resource Manager
National Ocean and Atmospheric Administration.
11
11

Contents
Introduction
Inventory
Existing and Potential Public Access Ways to the Water
Public Access to the Water: Tools and Techniques
Implementation Strategies and Priorities
Appendices
1. Recreation and Open Space Goals and Policies taken from Land use
Plan, Elizabeth City, N.C. Adopted by the City Council January 5,
1987.
2. Gaither et al; Pasquotank County et al. 235 N.C. 431 (1952) (note
added underlining).
3. Access Funding Sources, taken from A Beach Access Handbook for Local
Governments, Division of Coastal Management, Department of Natural
Resources and Community Development, Raleigh, N.C. 1985.
4. Land Acquisition Strategies, taken from A Beach Access Handbook for
Local Governments, Division of Coastal Management, Department of
Natural Resources and Community Development, Raleigh, N.C. 1985.

Introduction
' Elizabeth City is a coastal community whose economic destiny is
irrevocably linked with the coast and coastal water. One of the things that
sets Elizabeth City apart from other communities and that makes it a ver
y
1 special place is its river and creeks: the Pasquotank River, Knobbs Creek and
Charles Creek. They add beauty, grace, a sense of continuity and power, and
provide places for recreation. But their presence cannot be taken for
granted. The quality of their water must be protected in order for them to be
' usable for swimming and boating. But to be truly e� usablthe public must be
able to get to them. They must have "access". In earlier times it was simply
assumed that everybody could use the water and could get to it as best they
' could without great regard for who actually owned the waterfront. And this
system worked well for centuries. But now urban development is "fencing off"
the river and creeks, making it increasingly difficult for the g
public to et
P
to and to use them. Areas used for years for swimming and boating are now
exclusive subdivisions or other forms of development that exclude the public.
' And'as the ability to use the water is diminished so is the quality of life in
Elizabeth City diminished. And as the quality of life is diminished so is the
rattractiveness of Elizabeth City for economic investment diminished. The
water and the ability to use it, the real opportunity to use it, is
fundamental to the quality of life in Elizabeth City. The quality of life in
turn is fundamental to the economic vitality of the City. Hence, public
access to the water is not only a question of recreation, which is important
in and of itself, but it is also an economic development issue.
The underlying assumption of this plan is that the more opportunities for
access the better and that the City must move quickly to secure these

3
' opportunities or private development
p nt will effectively remove them and the
' possibility of public use.
The corollary of this approach is that it is important to retain whatever
' waterfront land the City has and to obtain any other it can get under
favorable terms without regard to whether the land is needed immediately or
whether it can even be developed within the near future. The assumption is
that Elizabeth City is going to grow and prosper, and that as it does, this
land and accessways will be needed and the new growth can help to pay for
their development. Indeed the availability of this land will make it more
likely that the City will
prosper and that the land will be needed -- almost a
self-fulfilling prophecy.
On the other
hand, it can be argued that if the
'
City is not willing to be
farsighted it
will not prosper and the land will not
'
be needed and the "nay sayers"
needed
can say "See,
we said this land would never be
and it isn't." The
point is, it
is not too late for Elizabeth City.
This document consists of three parts:
an inventory and description of
the existing and potential
accessways; a
discussion of what the City should do
jabout
or with each; and some suggestions
of how and in what order the City
1
should approach these questions.
This plan indicates that there are a number of wonderful opportunities
for Elizabeth City to secure waterfront land and accessways to the water at
relatively low cost. Certainly lower cost now than in the future. The choice
— is there.
Inventory
All existing and potential public accessways to the water were
inventoried by visually surveying the waterfront from land and water; by
investigating the tax records of all the land adjacent to the Pasquotank River
and the creeks; and by interviewing the local residents as well as city

4
I
I
L,
1
1
U
officials. The results of that inventory are located on the attached map and
are listed, first geographically, generally from north to south, and then by
ownership.
Inventory of Existing and Possible Public Access Ways
to the Water. Geographic Listing
1.
Brick House Road
2.
College of the Albemarle
3.
Albemarle Hospital, Inc.
4.
Foreman Land
5.
Elizabeth City Sewage Treatment Plant
6.
Owens Land
7.
Knobbs Creek Recreation Center
S.
Sanitary Landfill
9
Roanoke Bible College
10.
Burgess Street
11.
Elizabeth Street Canal
12.
Causeway Water Access Recreational
Facilities
13.
Causeway Water Access Recreational
Facilities
14.
Causeway Water Access Recreational
Facilities
15.
Causeway Water Access Recreational
Facilities
16.
Colonial Avenue
17.
Main Street
18.
Fearing Street
19.
Mariners Wharf
20.
Waterfront Park
21.
College of the Albemarle
22.
Butlers Lane
23.
Riverside Avenue between Carolina and Preyer Avenues
24.
End of Crescent Drive
25.
Undeveloped land
26.
U.S. Coast Guard Base

5
Inventory of Existing and Possible Public Access
Ways to the Water. Ownership
Owned by Elizabeth City
1.
Brick House Road
5.
Elizabeth City Sewage Treatment Plant
7.
Knobbs Creek Recreation Center
8.
Sanitary Landfill
10.
Burgess Street
11.
Elizabeth Street Canal
12.
Causeway Water Access Recreational
Facilities
13.
Causeway Water Access Recreational
Facilities
14.
15.
Causeway Water Access Recreational
Causeway Water Access
Facilities
Recreational
Facilities
lfi .
Colonial Avenue
1.7.
18.
Main Street
Fearing Street
1.9.
Mariners Wharf
20.
Waterfront Park
22.
Butlers Lane
Z3.
Riverside Avenue between Carolina and Preyer Avenues
24.
End of Crescent Drive
1
Owned by Other Units of Government
2.
College of the Albemarle
3.
Albemarle Hospital, Inc.
21.
College of the Albemarle
26.
U.S. Coast Guard Base
Privately Owned
1. Areas adjacent to Brick House Road
4. Foreman Land
6. Owens Land
9. Roanoke Bible College
25. Undeveloped land

�I
Existing and Potential Public Access Ways to the Water
1. Brick House Road
The right of way of Brick House Road extends to the waters of th
Pasquotank River but is too narrow to warrant development as a major
accessway. Additional land wou'' have to be obtained from adjacent o,
order for it to be useful for anyciiing other than a neighborhood acce:
The land to the north appears to be dry and firm but the land to the
appears to be under water much of the time. If adjacent land were to
acquired this site could be a useful boat launch site.
Policy: The right of way should be retained in the access invent
if land on either side should become available under favorable terms,
should be acquired. If additional land is not acquired, the end of tl
could be developed as a neighborhood access way similar to Crescent Dr
(See Number 24.)

L
El
I
I

9
2. College of the Albemarle
The College of the Albemarle is located on a large tract of lan,
fronts on Highways 17 and 158 and extends to the Pasquotank River.
appears to be relatively firm and dry to the rivers edge. The exist:
occupies approximately the front half of the land. The back half ha!
cleared and perhaps filled and although it appears to be unused it is
maintained.
Policy: The possibility of developing the waterfront portion of
land as a public access facility should be explored with college offi

0
-4
m= m r m ■r w m m m m m= m= m m s m

11
t
1
1
1
1
t
1
1
1
1
3. Albemarle Hospital, Inc.
Albemarle Hospital, Inc. fronts on Highway 17 and 158, but the 1
owns extends back to the Pasquotank River and along the river for som
Immediately in back of the Hospital is a canal that appears to be wid
for boat launching and similar activity. Much of the land is high an
but appears to become increasingly low and wet east of the Hospital.
Policy: The possibility of developing the waterfront portion of
Hospital's land as a public access facility should be explored with H.
officials.

N
1--4
m m m m m m m w r� m m m m m m m m�

13
4. Foreman Land
This is a parcel of land containing 604.9 acres, much of which
be swamp. It links the Hospital land with the Sewage Treatment Plar.
If it were owned by the public there would be the possibility of a I
facility combining active recreation with a natural area or sanctuar
Policy: Because most of this land is swamp, it is unlikely to
any significant way; but, if it were to be made available on favorab
the City should acquire it so that it could become a part of a large
facility.
1
1
1
t
1
1
1
1

1
H
11
I
n
1
fl
I
14
PAeSquorANK RIVER

15
5. Elizabeth City Sewage Treatment Plant
Part of this site is occupied by the sewage treatment plan, par -
used by the N.C. Wildlife Commission for a boat ramp, but most of it
and unused. Most of the land appears to be high and firm; there are
buildings that might be repaired and made useful.
Policy: At a minimum the City should retain this land in its it
In the future, it should be developed as a multi -purpose recreational
or as a part of a larger facility incorporating the Foreman land, the
Albemarle Hospital and the College of the Albemarle waterfronts.

16
t
1
1
1
1
1
1
1
1
1
1
1
1
1
r
ELI�ABETH� CITY
SEWAGE\TREA7M
PLANT
5 %k

17
6. Owens Property at the end of Knobbs Creek Drive
This is a low area that has been developed in the past but onl
foundations and other remnants of the earlier structures remain. I
obviously used by the public even though it appears to be privately
would provide a natural terminus for the major facility incorporati:
land and an entrance to Knobbs Creek and the already existing recre:
Policy: This would be a very nice piece of land for public acc
Purposes. It is large enough to contain multiple functions, is on
road and commands a beautiful view. The City should open communicat
the owner to explore, •at a minimum, ways in which the land could be
in a mutually beneficial way.

00
6

19
7. Knobbs Creek Recreation Center
This is an already existing multi -purpose center. It provide:
access to Knobbs Creek.
Policy; This marvelous facility should be maintained and enha
accordance with existing plans and policies.

zo
KN08SS\ cRjj K\\\\N
RECREATION CENTER,
GD F a ANDSE \\\��
a
b
rob

21
1
1
1
1
1
1
1
1
1
1
1
1
1
t
AW
8. The Elizabeth City Sanitary Landfill
The Elizabeth City Sanitary Landfill, known to some as "Mount
lies along the shore of Knobbs Creek upstream from the Knobbs Creek
Center. Although somewhat unkempt now, it has tremendous potential
future as a part of a canoe or boat trail and as a water oriented r!
area.
Policy: This area should be retained by the City and developer
future as a water oriented recreation area.
W.

N
N
m

23
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
9. Roanoke Bible College
This entire strip from Knobbs Creek to Burgess Street, with the
of the railroad and elevators is owned by the Roanoke Bible College.
it has been developed by the College as a recreation area and is use
public.
Policy: The City should stay in communication with the College
their plans for this land; if the appropriate occasion arises the C:
become a participant in planning for the utilization of the land.

N
i
= r = = = m = ■i■ = = = m

25
10. End of Burgess Street
This is a street end that provides visual access to the river
be retained as such.

26

11. Canal along Elizabeth Street
The flood control function of this canal probably precludes any use of it
' for public access.
d
1

28
P

29
12, 13, 14, and 15. Causeway Water Access Recreational Facilit
The causeway is one of the most important pieces of waterf
in Elizabeth City. It is the entranceway from the east and is
the water from much of Elizabeth City. The City is fortunate t
the waterfront land on the causeway but this by no means assure
aesthetic quality of the area. What is needed is an overall de
that includes the entire causeway -- public and private -- whic
development to produce the sort of urban environment that prese
natural environment, enhances the appearance and contributes to
economy and, of course, assures adequate public access to the w.
The Causeway Mixed Use District of the Zoning Ordinance re•
special value of this area.

30
12
HWY. NO AND N.C•

M

32
1
1
1
1
1
1
1
1
1
1
1
1
w. .*J. M w 7. Ia 9 ARM N.G. 3T
14

33
11
u
1
u

34
16, 17, and 18. Downtown Street Ends
These are street ends in the downtown area that, if for no oth
should be kept open to provide visual access to the river from the
As the downtown recovers economically so will the need for this sor.
access. In addition with the exception of Fearing Street where the
police/fire boat is kept, each could'be enhanced with small sitting
where people could sit to look at the river, have a brown bag lunch
of coffee in the afternoon. The presence of the police/fire boat s}
highlighted since it contributes to the visual interest of the water
See the Main Street -River Access Concept following the Main Street

J
03
;7s 9:�AmblwA0.GLi91. WATW =%

1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
35
16

36
i
1
1
1
1
I
1
1
1
I
1
1
1
I
1
1
1
1
EtI-.% --
I

F r
it
��jAIFIN ■fit! ;j ,,��!I' %� �����/�� _ice �� t ar ► 1;
` if, .• �. sv
r.•
0
� �,(L-ooKWO NORT
f�112C Q d V!f��

37
1
11
11

38
19. Mariners Wharf
20. Waterfront Park and Charles Creek Park
These are well developed existing parks that are a credit to E
City. The City should continue to maintain them as they have and s
resist any encroachment.

39
7

40
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
,a
�Iujqcjv
0-
sSN RO
�y.
4TERFRONT
� PARK
CXAR�fis
CREEK
PARK

41
21. College
of the Albemarle
'
This is
a multipurpose center owned and operated by the Coll
appears to house a variety of
activities ranging from sailing to t
While it does not provide access to the water for the general publ
'
generate the
sort of activity
that makes the waterfront a lively p
does provide
water access for
the CO A students and faculty who use
'
sail boats.
Policy:
The City should
work with COA to enhance this facilit
tfunctions.

42
rERPROMr
PARK

43
22. Burns Lane
Burns Lane is shown on the tax maps to extend to the river fr
Drive between Hunter and Agawam, about 100 feet past Hunter and 13
Agawam. Private usage appears to have covered any indication of t
that does not mean that the public no longer owns it.
There is some indication that the riparian rights which attaci
land have been intruded upon by an adjacent pier. There is also sc
indication that the owners of adjacent land are trying to clarify t
boundaries.
Policy: The City should clarify its legal position with regal
ownership of the lane as quickly as possible. Once this has been c
appropriate public use can be planned.

N
N
m m r m m r s m m m m m m m m m m m m

45
23. The Waterfront on Riverside Drive between Carolina and Preyer ,
When this area of Elizabeth City was subdivided in 1902 this p:
not made a part of a subdivided lot. In a case ultimately decided 1
North Carolina Supreme Court in 1952, it was decided that "... by fr
indicate that (the land] ... had been subdivided ... the Riverside
Company dedicated ... (the land] to the use of the public ..." (See
attached opinion.) The tax maps indicate that the land is still ow
public although it appears to be used exclusively by adjacent owners
a very important piece of waterfront since it seems to be one of the
publicly owned parcels where the water is suitable for swimming.
Policy: The City should clarify its legal position with regard
ownership of this land as quickly as possible. Once this has been c
appropriate public use can be planned.

46
1
11
F
1

1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
f
47
24, The end of Crescent Drive
According to the tax maps Crescent Drive was dedicated to the
the waters edge. The road has not been paved beyond River Road but
and open.
Policy: At a minimum the public ownership of this site should
asserted so that there is no possibility of it being lost. The sit
acquiring additional land could be a very attractive neighborhood a
for visual access, launching small boats (canoes, sail boats, etc.)
perhaps swimming. See the Crescent Street -River Access Concept fol:
site map.

co
m

m am Alm ---sip mg, -ow- or
dp
*,W-a^N *)nWAOdly•
mod �t'�Y'~04 YOW 4V&A WAtg �f'1V1� It �dd`71c1M�.{
SS3�
if

1
1
1
1
1
1
1
1
1
1
1
gl%/MR RoAv
•
„ L•.,
11 ��
C'Kwewr ivy. - KiyEK Aaaxh 60welu
5L.IZAPOIN 61-TY. W, JPL,� VIMW Ell
`6Al.6 : ON = to JRKK HoRTN

49
25. Undeveloped Land
This area lies just off the end of the runway of the U.S. Coast
Base and because of this is more at risk from aircraft accidents and
obviously subjected to the noise generated by aircraft using the run
of the runway will undoubtedly increase as will the hazards. In add
central portion of the land is in either the 100 or 500 year flood a
These factors present special problems in developing the land.
The City should, in cooperation with the landowner, the state,
U.S. Coast Guard, seek to formulate a development plan that would mii
risk and nuisance and at the same time protect the future operations
runway and Base. Such a plan might result in clustering development
less hazardous areas leaving open space for public use.
Mo-

O
in

51
'
26. U.S. Coast Guard Base
Probably the best swimming beach in the area is on the U.S. Coal
tBase.
Because
of the Coast Guard regulations and other legal problen
use of the beach is not possible.
It should be City policy, however, that if at any time in the ft
'
of the Base is available for public use the City wants to participate
deciding how it should be used.
1

52
*F*4
Us caasr &uA tD
r
1�
1
ss

52
Goals - Recreation and Bt1 Space
It is the goal of the City to ensure that adequate recreational
opportunities and open space exist for all residents. The City will make
' efforts to ensure that these opportunities are of appropriate quality,
' quantity and location to ensure accessibility to them by residents in all
parts of the city. Future growth and development shall provide, or contribute
' to the provision of, adequate levels of recreation and open space.
'
Policies - Recreation and Open Space
1. The City will develop an open space greenway system. This system
'
would be comprised of a network of natural and open space areas surrounding
the city, and could also be used for numerous recreational activities. The
proposed greenway system connects the Knobbs Creek Charles Creek and the
'
Pasquotank River. Such a greenway system is depicted on the City's land
classification map (see Chapter 14.0) and should be retained in an undeveloped
'
state. Development should be discouraged in these areas, and the City should
pursue the acquisition of land and easements here.
2. The City will seek to implement the recreational and open space
'
recommendations included in the 1976 Elizabeth City Open space and Recreation
Plan which have not yet been implemented. This plan should be carefully
'
reviewed and updated on a regular basis.
'
3. The City will continue to regulate development to ensure that
adequate recreational and open space needs are met. Specifically, this
'
regulation would address two separate issues: 1) the incorporation of
adequate recreation and open space within or adjacent to the development, and
'
2) contribution to the provision of broader, citywide recreational and open
space facilities.

53
4• The City will strive to provide a diversity of s open
recreational services and facilities P Pace and
to satisfy
the needs and preferences of its citizens.sfy the range and diversity of
5• The City will continue to seek to coordinate the r
recreational services by all provision of
agencies, institutions and civic organizations.
The provision of redundant or overlapping facilities and services should be
avoided. The City should also seek to work closely with, and coordinate its
recreational and open space investments with Pasquotank and Camde
6• Promoting recreational and Open space - n Counties.
opportunities which utilize
access to the Pasquotank River and the creeks which run into it will
priority. It is particularly important be given
to ensure that adequate boat and
swimming access points are
provided. The City will prepare a detailed water
access plan which identifies existing and potential boat and swimming areas.
It will also establish priorities for future acquisition
water access or provision of these
points and identification of the possible means for securing
Chem. The City will seek to obtain state and federal rant
be used to secure and develop theseg nt monies which can
access points. The City will work to
protect those access points that currently exist and should not
development or other activities to Permit private
occur which may foreclose their future use.
The City will work with Pasquotank
q and Camden Counties in protecting and
developing such water access points.
7• The City will, in collaboration with the -counties, work to develop
scenic canoe trails along the area's waterways and to protect th
e scenic
integrity and beauty of these waterways.
B. Providing open space and recreational facilities which will
accessible and attractive to visitors be
and non-residents is a viable approach
to increasing local tourism and promoting economic development. P t. Elizabeth

' 54
Public Access to the Water: Tools and Techniques
There is a wide array of legal, political and financial tools available
'
to officials and citizens alike which can be used to increase opportunities
'
for public access to the shorelines of Elizabeth City's waterways. This
section of the report describes some of these techniques, and how they may be
applied to particular sites along the waterfront which are listed in the
inventory section. The implementation these methods, however, will be much
'
more effective if efforts to increase public access were bolstered by a firm
overall policy issued by Elizabeth City officials. This fundamental policy
should involve statements to support the following principles:
'
• Elizabeth City should take steps to ensure that land which is
currently owned by the public remains in public ownership. Title to
all lands
owned in fee by Elizabeth City should be indisputable.
'
Furthermore, efforts should be made to inform citizens of their status
as owners of these lands. Parks and established boat ramp and other
such facilities
are already well -used, but other areas may be less
publicized
'
as available for public accessways to the water.
• Elizabeth City should take steps to ensure that land which may not be
'
owned in fee simple, but which the public has a legal right to use, be
protected for continued future use. All
public easements, rights -of -
way or other interests in property near the waterfront should be
carefully recorded, with the exact rights of use made explicit in the
'
recording instrument.
• Elizabeth City should take steps to identify all areas the public has
been
'
customarily using for water access purposes, whether title to the
land is in private or
municipal*ownership. Upon identification of
areas used by the public through c%Mtom, efforts should be made to
legally formalize and recognize the public rights there.
• Elizabeth City should be prepared to acquire ent o
the
h land calert
cshould
waterways as possible. Citizens and officials keep
'
to any parcels which are made available for purchase. Property
interests in fee simple would be the most versatile and afford the
most control over the land, but opportunities to acquire lesser
rights, such
'
as public easements or rights -of -way should not be
overlooked,
especially where acquisition of property in full title
would be
economically or politically infeasible. In carrying out this

54
City has immense aesthetic and recreational potential which ca
tourists if developed carefully and conscientiously. These cc
transient tourist on their way to the beach and those who vis
City as a point of final destination. Ideally, the City shoul
develop those open space and recreational resources, such as F
courses, which can be efficiently utilized by both residents b
s
(tourists).
9. As noted in other components of this plan, priority s
to acquiring additional lands, easements or other public actic
expand the potential recreational uses, both passive and acti,
Charles Creek and Knobbs Creek Parks.
10. Tourist -oriented recreational facilities should, to t
possible, be tied to the city's historic resources.
11. Where feasible, different kinds of recreational facil
dispersed throughout the community whereby they are accessible
residents.
12. Certain recreational facilities, such as golf courses
are few in number and in some cases inaccessible to the public
expenditures should focus on the provision of these facilities
13. Few recreational activities, such as playgrounds or t
for younger children, and future recreational investments will
go -
problem.
14. Future open space and recreational investments must t
cognizant of the increasing elderly population in the city.
increasingly plan for the recreational needs of this portion c
population.

55
Policy, Elizabeth City officials should not hesitate to acqui
property when there are no immediate sources of revenue avail
development of the land. Once property is acquired, even sin
' access facilities, such as a grassy walkway to the water, tra
receptacles, and simple benches would significantly increase
public's opportunity to enjoy the shoreline. If chances to a
property are bypassed through inattention or hesitancy, howev
land will be surely lost to widespread public use forever.
'
Dedicated Street Ends and Other Land
The inventory section of the water access stud v y identifies sever
'
dedicated street and road -ends which are currently available to the p,
means of reaching the water's edge. Some of these streets are paved
the water's edge; other roads end before the water is reached, the rer
1
distance being a rougher track or trail. There are no legal issues ri
when the public uses th
ese hese publicly -dedicated streets and roads. Howe
dedicated status of roads in North Carolina is not necessarily a perma
condition. Once a street has been designated as a public thoroughfare
'
government is
under some duty to maintain it in usable fashion. If th
municipality fails in this responsibility, the road or street can beco;
"undedicated."
Section 136-96 of the North Carolina General Statutes declares th.
road or street not used within 15 years after dedication is deemed abai
'
Every
strip, piece, or parcel of land which shall have been at an•
dedicated to public use as a road, highway, street, avenue, or fo.
other purpose whatsoever, by a deed, grant, map, plat, or other me
'
which shall not have been actually opened and used by the public
15 years from and after the dedication thereof, shall be thereby
conclusively presumed M have been abandoned by the public for the
purposes of which
same shall have been dedicated. (N.C.G.S. § O
The statute provides that abandonment of public right or easement
presumed until the dedicator files and records in the county register':
a declaration of withdrawal. If the dedicator does take such action, tl
landowners where the right was located are protected against the right

55
11
1
1
1
1
1
1
1
1
1
1
i
15. More attention must be given to ensuring that adequate open space
park land and recreational facilities exist on a neighborhood level.
16. The City will continue to give proper attention to providing needed
recreational and open space services to areas within its planning area, yet
outside its city limits. These services should be provided in conjunction
with the counties. In particular, the 1976 Open Space and Recreation Plan
identifies the need for additional park land and tennis and basketball courts.
17. The City will modify its regulatory review of new subdivisions to
ensure that the maximum amount of open space and undeveloped land is
protected. Moreover, efforts should be made to ensure, either through an
impact fee or land dedication, that new development is adequately and
equitably assessed for the additional recreational/open space demands it
creates.
18. The City will seek to develop a trail system for pedestrians, horses
and bikes, and to coordinate this with its other open space and recreational
investments. The trail system can be developed on an incremental basis,
adding to it as opportunities arise.
19. The City acknowledges the importance played by recreational
facilities in attracting tourists and economic development to the area.
Future investments in recreational facilities should take this into
consideration.

56
' public to insist on the dedication. (Osborne v. Town of North Wilkesboro, 280
N.C. 696, 187 S.E. 2d 102 (1972)). The owner may file and record a
declaration of withdrawal from dedication if the municipality has failed to
improve and open to public use the street or alley dedicated 15 years prior.
Elizabeth City should heed this statute carefully
to ensure no property
' owners are given the opportunity to act under this statute to file a
withdrawal of dedication of streets used by the public to reach the water's
edge. Elizabeth City may exhibit signs of acceptance of any street which has
been dedicated to the public by the registration of a map or plat showing the
street to preclude an effort of withdr
awal. Acceptance of dedication has been
' held to be manifested by opening, improving and maintaining the dedicated
street. Once the street dedication has become complete by the acceptance
thereof by the municipality, and the street is opened and maintained by the
municipality and used by the public, the right to revoke the dedication is
' gone. (Steadman v own of Pinetops, 251
N.C. 509, 112 S.E.2d 102 (1960)).
Use by the public of a dedicated street has also been held to preclude
withdrawal: the dedication of a street may not be withdrawn if the dedication
' has been accepted and the street or any part of it is actually opened and used
by the public. (Russell v. Cogs;, 232 N.C. 674, 62 S.E.2d 70 (1950); Janicki
v. Lorek, 255 N.C. 53, 120 S.E.2d 413 9 (1 61)). Even if only a part of the
' street has been used by the public, the withdrawal of dedication is invalid.
Where a street in a subdivision is dedicated to the purchasers of lots and to
' the public by the sale of lots with reference to a plat of the subdivision
showing the street, and the street is actually opened and used by the public
' even for a part of the width shown by
the plat, such use precludes the owner
' from revoking the dedication under the statute, even as to the portion of the
width of the street not used and maintained by the municipality. (Home -Real

57
Estate Loan and Ins Co v Town of Carolina Beach, 216 N.C. 778, F
(1940); Food Town Stores Inc v City of Salisbury, 300 N.C. 21, 2
' 123 (1980)).
From the foregoing comments, it appears clear that the actions
to preclude withdrawal of dedicated land is not onerous on either ti
' municipality or the public. Elizabeth City should take immediate s•
therefore, to avoid withdrawal of any area which may be deemed "abai
a period of 15 years. Maintenance tasks may be as simple as posting
(indicating the area is a public accessway to the water) and provid:
receptacles. At beach accessway s along the coast, the posting of s:
' the provision of a pathway has been considered sufficient to indicat
municipal acceptance of a dedicated accessway. However, since this
' been tested, more than the barest minimum tokens of acceptance woulc
i
11
advisable.
Development Agreements/Bonus Zoning/Trades
There are a few areas in Elizabeth City near the waterfront whi
not yet been developed. These lands are valuable as prime residenti
due to the proximity of water, and the pressure to subdivide is moun
is likely that current private property owners will subdivide and de-
riverfront land, or will sell the property to a developer in the nea
This imminent event can provide an opportunity for Elizabeth City of.
become involved in the initial planning stages of any waterfront sub(
coming on line. If the City responds quickly to any subdivision prol
these areas, and works closely with the developer, the City may be al
procure public rights of access to the shoreline located in the subdi
The following section outlines a few of the ways in which the City cz
active role in the development process in waterfront areas, resultinE

1 58
1 shoreline available for use by all the citizens of Elizabeth City, not just
residents of the subdivision.
1 All over the country, many local governments, recognizing that the
development of land has become a costly and time-consuming endeavor for both
1 public and private parties, have begun to adopt and use development
'
agreements. With these agreements, the municipality agrees to freeze any
applicable zoning, subdivision and/or other regulations. The government can
1
also exchange commitments to assume maintenance responsibilities or shoreline
1
erosion control improvements. In return, the developer agrees to proceed in a
timely fashion,
to acquire all necessary permits, and to P
provide specified
P
1
infrastructure (which could include trails and benches, bike racks, boat
launches, marinas, piers, playground facilities, etc.) or dedicate open space
1
as needed. The agreement can also be used to acquire public access rights
where shorefront property is being developed.
'
Development
agreements facilitate projects which require substantial
1
front-end investment in public infrastructure by assuring a developer that
future changes in densities or other development regulations will not affect
'
the project. Developers may agree to more concessions favoring the
'
municipality in return for the increased security of knowing that future
regulatory
changes will not affect the project.
One legal issue that has been raised in the context of development
agreements involves the contracting away of a local government's police
'
powers. Specifically, the question is whether a municipality may agree not to
1
enforce zoning, subdivision, and other police power regulations in the future.
The
agreement to "buy" certain amenities such as improvements and recreational
1
1
space from developers is arguably analogous to the purchase of other goods and
services; therefore, this aspect of a development agreement is likely to be

59
1
1
enforceable. The possibly illegal consideration given for these purchases,
however, might make a contract unenforceable; the city might not have the
authority to waive enforcement of its amended ordinances and regulations.
Under the reserved powers doctrine, a government may not agree not to exercise
its police powers in the future. If a government does so agree, however, a
competing constitutional clause requires that the state not "pass any . . .
law impairing the obligation of contracts." (U.S. Const. art. I, § 10). This
clause has been applied to government contracts in the past. Thus, it
arguably prohibits the rescission of a development agreement on the ground
that a new city ordinance or subsequent inconsistent legislation, such as a
zoning amendment, has impaired the contractual obligation of the development
agreement.
There are several provisions which Elizabeth City officials should be
aware of, and which can be included in a development agreement to help ensure
that the City will not give up too much control, so as to invalidate the
agreement. These include provisions:
1) for limiting the agreement to a specific duration indicating that the
municipality is not completely ceding control;
2) for monitoring the developer's adherence to the agreement and
authorizing termination for nonadherence;
3) requiring that all discretionary approvals be obtained;
4) reciting some statutory authorization for entering into -the agreement
(e.g., development agreement enabling, annexation agreement enabling,
or other contract power enabling statutes);
5) reciting the specific public benefits expected (to satisfy any want
of consideration); and
6) requiring conformity to subsequent local regulations that are not
inconsistent with the terms of the agreement.
A related method of creating access to the waterfront used in some areas
is the use of incentive or bonus zoning. In order to achieve the desired

11
60
results, however, foresight is needed. Incentive zoning is essentially a
trade between the community and the property owner. This technique of zoning
'
authorizes a municipality to allow developers to exceed limitations imposed by
'
the zoning ordinance in exchange for the developer fulfilling conditions
specified
in the ordinance. The classic example permits a builder to exceed
'
height limitations by a marginal increment in exchange for providing open
spaces or plazas adjacent to the building. A zoning ordinance which grants
'
bonuses or incentives can be used to encourage developers to provide a wide
'
variety of amenities including shoreline access. This method of acquiring
access is
not costly to the municipalities and not excessively restrictive on
'
the developers. Bonus and incentive zoning has great potential as a tool
which does not demand a sophisticated administrative framework to implement
'
and which provides flexibility in land use decisions.
'
Incentive zoning will have a better chance of meeting constitutional
requirements if it complements a rational underlying regulation and is a
Y g
'
reasonable means of achieving a permissible governmental objective. Most of
the purposes for which a local government would want to use incentive zoning
'
are recognized as valid public purposes, but commentators disagree about the
importance of the relationship between the amenity provided by the developer
and the bonus allowed in return. For example, an incentive ordinance may
y
'
allow a smaller lot size in subdivisiong in return for more open space; an
issue may arise concerning the connection between lot size and open space. A
'
more difficult situation arises when an ordinance allows smaller lots in
return for the provision of an amenity such as bikeways. It may be that
incentive ordinances for non -controversial are not like) to be
purposes Y
' challenged, and perhaps even a tenuous relationship between the amenity and
the bonus will justify the ordinance.

61
' Another type of trading which can be used as a tool to acquire access
' involves the exchange of land. If Elizabeth City owns non -waterfront property
for which it has no immediate or foreseeable need, such property could be
' exchanged for waterfront property having similar value. Any difference in
land values can be compensated for in money or in additional land or in
' development rights modification.
' The foregoing techniques to acquire access rights to waterfront property
in Elizabeth City may be applicable in some of the areas identified in the
' inventory section of this report. The implementation of one tool, or two or
more techniques used in conjunction with one another may allow Elizabeth City
to become involved in development in more than a regulatory role. Even before
' a preliminary plat or subdivision proposal is submitted for review, officials
could approach the owner of the Owens property at the end of Knobbs Creek
' Drive to explore ways in which the land could be developed in a mutually
beneficial way. The owner may agree to enter negotiations with the town
regarding development of the land if he were informed that in exchange for
' providing public access to the strip of his property located on the shoreline,
certain of the subdivision rules and regulations in force in Elizabeth City
would be frozen. The Town may further offer to maintain any improvements made
along the shore available for public use.
' Another approach may be to engage in a land trade. The owner of the
' Owens property would give the City the waterfront section of his property in
return for land in the adjacent parcel, the Elizabeth City sewage treatment
plant property, on which he could build additional units. This trade could
involve the exchange of titles in fee (title to the waterfront part of the #7
tract in exchange for title to appropriate sections of the #6 tract), or the
' exchange of property rights (public rights of access to the water for

62
development rights on more solid land adjacent to the public area and never
able to use it.
'
Or Elizabeth City could consider the grant of a density bonus to the
'
owner of the Owens property for such time as he would wish to develop the
land. For
instance, the Owen's property owner may be granted a permit to
'
construct a residential cluster development of higher density than usually
permitted, so long as the undeveloped area in the tract were dedicated as open
'
space, and the land immediately adjacent to the water be made available to the
'
public for access purposes. Such a density bonus scheme may involve a trade
of land in the sewage -treatment plant parcel, allowing e thdeveloper to build
P
'
a portion of his entire development plan on the city -owned tract, and the
remaining units on the Owens land. Again, the remaining undeveloped land
'
would be dedicated to the public as open space and for access to the water.

' 63
'
Implementation Strategies and Priorities
The fundamental goal of this plan is to provide a large number of
'
opportunities for the public to gain access to and use
8 the Pasquotank River,
'
and to a lesser extent, Knobbs Creek for a variety of recreational and leisure
activities. In addition, implementation of the plan will contribute to the
'
safety of residents by preserving the natural function of at least a part of
1
the flood plain and by precluding development in these areas. The beauty and
charm of the area will be enhanced by providing a focus for one of the area's
'
major assets -- the river.
In order to implement the plan and to achieve these goals the City needs
'
to be farsighted. It must act before the private market and others develop
the riverfront and effectively destroy the remaining opportunity for public
access.
'
There are a number of things that can and should be done. Some require
very little effort, others more.
'
1. Probably the single most important thing for the City to do is to not
'
lose any of the riverfront land it now has. There are three very important
areas that need immediate attention:
'
a. Butlers lane (22)
b. Riverside Drive between Carolina and Preyer Avenues (23)
'
c. End of Crescent Drive (24)
'
r
All of these appear on the tax records as public land but visually seem
to be used privately.
Simple maintenance and other routine assertions of ownership such as the
placement of a small sign would probably be enough to thwart any efforts to
'
defeat public ownership through statutory or common-law.

64
' The City should also adopt a policy which declares that it will not
dispose of any of its riverfront land unless replaced with a larger more
' usable amount of riverfront land.
' 2. Explore public ownership of the boat basin and launch site in
Riverside Estates.
' 3. Explore the possibility of a public -private partnership for the
development of the Camden Causeway which would work to the benefit of the
' private landowners and the public. This is one of the most important areas of
' Elizabeth City. It's development will affect the development of much of the
area across the river.
' The City might consider sponsoring a student design competition that
would generate alternative development proposals using public and private land
to achieve public goals as well as private.
' 4. Explore the possibility of a major facility using the land behind the
College of the Albemarle and the Albemarle Hospital, the Foreman property, the
' Sewage Treatment Plant, the Owens property and perhaps the existing Knobbs
Creek Recreation Area and the Sanitary Landfill on Knobbs Creek (see attached
' schema). A facility like this would contribute to the quality of life within
q y
' the City and the region and hence should probably be a combined effort of
local, state and perhaps even federal funding. This is an uncommon
' opportunity in that little land would be removed form the tax rolls but it
'
would be
a major
improvement. -
5.
Develop
the end of Main Street as a park.
P ark
'
6.
Approach
the owners of land adjacent to Colonial Avenue to see if
something similar
to Main Street could be done there.
'
7.
Improve
the end of Fearing Street to better showcase the police/fire
boat and
Mariners
Wharf.

65
8. Develop the Riverside Avenue site for use of the public.
9. Be open to and encourage landowners who would consider donating land
or making land available to the City for less than fair market value.
10. Be aggressive in looking for grants to improve and develop presently
owned land. (See Appendix.)
11. Explore the possibility of_a public -private partnership for the
development of the land adjacent to the Coast Guard Base which would allow
clustered acoustical) desi , y- fined housing and publicly owned and maintained open
space.
Probably the way to pursue this is to do an extensive study of the land
and develop alternatives based on this study.
i

t:.uru►:x P. 11ItrrlTA1.
R. t:AtT111RU Astt Ilt�.tt.tntt, 1V. t;, t;,�l'1'IT1:lt. Y. Ai.itl:a(.�Itf.l:
HOSPITAL, 1'Ve., AN '1•uc+r►:,: )ur 1'Atit11;U'1'.1V1C CAUYTY aro l'I'CY
41' h:l.l%.11tF.'TII Cl'L•Y, A%u CITY OF 1•:1.1/.A11t:TII CITY A:to L'A.'4QI)U-
TA.\IC CUIINTY.
( h•114.1 :tn AJeri1. i:L�L'.)
1. 1G•fcrcnre ej {�
Where de(endtuus ub)t.j•t rrt a „nnpnlYurr R'rt•reu
delerttte unlrn.l wilhuut llrxt
onc
• nnia;l their ph:u in bur of tI11c by adrwne lifim %siuel, belt tl,, n,.l jete ttlgKa! thert•frtnn, lht•r uut}• aut, elfler Wureute, uatinutin Iliut the
P:cu lel liar llrxt should h:Ive btrel dt•tertauttYl.
9. Reference § 1-In--
Where defentlnnht In a ctrtulelllxttry refertmttr n11'er nu evlllentti In xnpr dirt
of tlleir Itaa of rile ley udrt•rn(. lk""'e"tsiun aad fender nu Issue thl•rtun
With demund her Jury trial, III" waive the right In hove the phat lit bur
Wed by a Jury.
J. Apptal and krrur •{l>,1—
"11411nt;4 a!fact of ►ha n•ft•n•t• nl'1►rltrrtl hr the trim J11d9e are ttiun•lurire
On npltt•nl when xnpltttriml l►,r tiny ttnupeteut rvideute,
{. LWle•nrlan ?) :t: %Vnterx nett! %Vurt•rcuur..pts;j 1•,�
• Where the owner of lanilx rt•111I wile by mild lolls with n fertutr. to ,t pint
wwht� 7ltrtt•iimild nwd,t, t.:tcl, apt„tte of n list nttiluires All thtaenu•nt to
use all of INe atrtr•ts Hurl rtnuls xu sho)wa. Mud rills role extends tit file
dudkntlun of riparian ril;ltts olio: a nurlt;ubte xliiettut shown tonen lilt- fling.
Waters and �ti'atcreuur.r. § I'r
'Navigable water" cnrtitifute n I►nbllc highway which rile ptd)lie• is rnfitlrtl
or
owners* right oflvirlier for aca tis u w the irl;:I t of prWate prulkrty In fire bato file nlaslof
the stream.

M M M M M M M M M M: M M M M M i t i M
432 IN THE S1,;1'RE ': ('01'Iti.
r
l:_vrmcu v. Ilurrir.,ou.
it. 9a►Ine: 11-•dlctllloo Q ::—
Tilt- ut%1---r of In11J.r oil -ma: /t tilt%lgable strr:uu yo111 -,:one %0111 reference
Ile at little whmwila,: it r+lrerl ulmllt, the ricer a'ilta It strip mf title-[ nl•c.•r %%It!er
012111 Nix to.4.1 !I,•IIIg Iw1wrru tI!e ri%er it Jilt the Arret. 111Id: 'file I►u%chnva•ry
of 1111+Ntr11111-e Ih-- right I nccrs% to site :dtlr %%tlter In tritest mr the rltlrroty
Nlrlp tot Small, ulall air eulltltA !o rc�lluln nn..thor ;;rinit trultl 111t.114 III
for mmllow wmer tit trout let Ili+ Itr.-Ilerly, w 11-4 to Inlrrfrre with .ruck
right t-t lal't'1':tY.
T. %Vnirrr select Wittercour:.t•y § 12—
't•llr finial:: lie let hold nndrr slalmom %%liter tll-wg at emv!g.lb!e river In
match a nuttmer lam to cclinaltule is Inatrrlut ubrtrlJi•ll.un to cununll•nt. e•••t•un:
land exparla!oata nuvigittlun conytlftitey it natisnnee 11111WIth-41:111gtng tblit the
td►x!nictlon war be- it not:rre m! puhlle hewltt, latest the crrlltlun of stil•h
n11+N1111t•e Imly be rc4trahivil. U.S. 11•13:9.
H. App.'r11 sand Vrrtlr § :!Ile—
Where pl:lhllltf 1-1 entitlr.l to the rellrt m•.1lght ultun his /trigiwtl coeu-
phllut Irrt-sipon-tive let ulh--iltluny cmn1tl111rd in hies Attila-11IN4t t'e,111111AIlt. the
-•r-err of Pat- Wool ruort •rllowing the Wills; of else uu�roloh•d cmati111:11ut <anr:er
1-e tire ;-ld!rl:lt evl:n t!mlalg!j the awetiduat•at he be}•uetl the 1H,4:re.tl1,n:Iry
:lower of Ilse ro-art !1 ul!ow-
ltAaYlllLt. J.. 111Sr011a tin the gatcstlon of derllcntlea.
, -rVAt, by dldrudanti front F'rizzelle. Judg;- rieliug the Fir. -At Ju-.licial
District Superior Contra:, Y9 D-.-vrniher, 1951, of P.i­;CurANK.
Civil at'tlltll 1U 1:IIjU!!1 Ill'fcll-!%lilts, (!It'Ir t .1'nts. merviltlli and o.-ut )lioyee+,
fron, building it break -Witter nom ig, and conytructirg It public pork out tat,
tile- deep water lint: of Pustiilutilnit Itiver in froul, a-m! to tit: east of pl:tin-
tilfe prolwrly frvtiting oft Itiv--r,We . vinlue its the: city of Llizabetli City
anti raaquoisluk County, North Carolina.
Plaintiffs Alt-;e in their ronsplaint facts it, rey;►cet of the dera-&"Inlent
of title by the respective parties, tile- lihvsieut aitulttialn, tiro announced
purpuie of dt-fem!alits, stud the' e!icrt of lite praipo-ell Burk oil their ltrn;►-
erty, sal.stunti.lPy its accord with Endiatgi of fuct Made by the referee :u
hereinafter nhown. They further allele in substance:
(1) That if t!e:fendunta are p erutitled to eterrp out their purpose of
construrtiug it purls A-, ill4ir►Ited, pluintilis will be deprive4 of their
riparian rights. tend the privilege: of enjoying the use of the water of
Pli.quutank Itiver adjacr it to the land in gortltion, and will suffer irrepa-
rahle Will.
(2) That tl4entlants have no title to the lauds under the waters of
Paselnotrnk Itiver which would either justify or permit suid break -water
and fill, u,-I iWendunts have tie right to ronstruta.aame, and the acts of
defendants in that respect are wrongful and unlawful end constituto
en_r^•lrhmen( -►on the rights and property of the plaintiffs.
1
i•
e:.%rrrlr:lt l-. ll.,,irirm..
(1) That Isle ?tit•,•r'l sets. L:ul.) ('ullllglnv, Inl villri Snl.l the lots now Owned
by p:aiulilf Ile!en R'. lulillsrt, ill rrferene,: to the plat, Jill those elainlin,4
111111vi- it, iiiel11-ling t!1-!cell-I:Illt4, Ille e•tllvillw-I from cle troying or cltlltlgltlg
the :!nid ricer• ill fr-tut of :aid lots, lull plaintiffs exprt•s.!v plead tuch
.•.►. a p licit.
91':-'It-limey, a:14%v•1•:It,-f, Ilse ("I'llplmllit, whitit that the street degignnted
11n !�u• Isla: lay •'Into r•ndl" lsu. I„•1 e1 mltrU,•11 Ill Ilw i,e111.1.111 ptiblie mitre flat-
111:1.1 :�.I� 11�:I1•iv! m! ty•1'11t'-1 hell f itt•y /!-,Iiv Ill Itisiteriil) Ilylivet ollivr ulk-
''.\nil fur furtlsa•r awl :vp:u•:Ile uns%%er by wily of defetise," defendants
ai•lrr :
'•lei. 'flint. Ina are 1141visr41, believe: land Ill.-refure idlrge, till:
t!t:felat!alaty lacreill a!,,l 01-I.e tllle!I-r i0imel thev cluiln llitve heel% ill the
e1 wii, n-it-ir1-mi aft-1 11 -c-iswit of the laoida he cotltroversy 1wrrin,
t:n1!.cr kroien :Ina! :luonilurics fur more then set•et years under color
of tlt!e Illl-1 fnr 1►111re thall ttr.•at�•-elite �•I'ars wi&-r color of title, fur mow
I!,nn tllcnly vein:+ la1m1 fall- More thin t!lirty ears, and the sail! ieven- anti
twenty -one-year uu-! tu',vll�- 111111 ll,irty-year -itulittes of Itmntuttuus tire,
't1:r�hy ;� ends-1 in loar 1,f piAvoiti•e' rig! it to recover herein."
Plailllitf•l tit \ovett0-'r Term, 05ti, ntoca:-1 fur it reference. The court
fint!tllg its :l fact ilia! 111:y ;11 f :tell IIIY1li11 i a etolliplic tted question of title
awl huunlluries and %tale :1 refrrcnee is esycntia! for a comillete develop-
int'ilt of the facts till-i r-»I!rn!itlil: of the purtiei, a reference was Ordered,
art! Franc B. Avcork wa•► :1pp•liutctl referee and directed to hear the
evie!ence: ;tits! cat:,tr:ltion; 4 the parlici and to report to title court his
findinl;y of fact a•ml c0nr1114,11i of how. And this entry uppt-urs: "The
d1-fen!!Jints except to the forr-g-ling (artier and reserve Jill rights to which
tht;v ull:y he: entitle'!, inrintling the right to trial by jury if they so elect"
I'enlltitg the Whig of report of referee!, plaintiffs moved for permi•iion
to luneild their rmotpluiut I. utldilig at the cud of sectiotl l:: the following:
'.That pluinti:fi are rt•iillenti of I'lisquut;llsk County nud are taxpayers
of 1ni-I County a:rl of tilt- Cifv of hlizabetl, City. 'Clout the construction
of the proposed conerere breakwater and the construction of said park ill
I1rid river will cust these pluintifss anti the other tuxpnvers of said Cou11tV
anti City it barge situk of nloaev, and that such construction would in itself
be a crimintil Oct. Furt'wrtl ire, if defentlsuits are permitted to procce:tl
with the construction of said breakwater anti to fill the some in for it park,
said tire& ,would inuut•diatel-v heconie public lands subject to entry which
entry the defendants are, by 1ltatute, precluded from ranking, and the
entire expenditure on the part of the defendants would be a total loss to
be borne by the taxpay.:rs of said County and City."
The referee, being of opinion that the prgposed amendment to the coln-
plet did not change substantially the clel m. or defense, that the sami

r rig
431
r r r r r M
1\ THE SUPREME. covi •l'.
� r r
[235
r
,:.%ra tn:u r. ttusri r.tt..
evillence won!al silpl,l,rt flat- s"I'Vil.hmrllt 914 q•toll!al --Ill.pt)rt the co-tap!a%n:
in urig;nul form, that tilt• Matte relief Icould 311,0v to the original cont-
1,111int null to like coal[ Taint ns :u11rnJ1Y1, that the te�timnony ulrt•utly taken
In this l:awe l'llt`+,'mlaa,s+Yl ail purlsa,rti:4 f,ICts no- es ilrC to slipport file 11!le-
gritions in the nmemIt'l cl.uadlnint, ullolve'l the nlofitoli. De(endant+except.
tiullt as G►!If•w.r:
1. That )it or 0-mil 1 Jime, 19112, Hiversi-le ImiO Co mlVlllf, n t•+11•'1••ra-
trmn, tilt.- then owner t►f eerlaits lands sit"alral toll Pasti!:o1s ak Itivrr in
Pu,at4uobhnR Chanty, Furth t. ;arolin;l, cnuacal life !uuals to be lurvcced and
n plat made land reciertled in the of!iac of register of daveds of said county) ---
the !and nut.• being in the rity limif,i of E!ir.:hhe t!1 City.
2, That the- corporation, Itiverside Lunen Company, tva9 dissolved in
'May, 1914. +
3. 'VItat ilia this plat there was laid out it passfigewity de•sig!Iaba! as
ltiveriMe! Avenue,—rvpre!�eattng it street or avrttue ar the getterul use of
tilt llu!►'ic, utit! extending from talc wet-lerit line of the property "enit-
witrdlV ultil►.. that iwrt.herit p01716M thereof, to a point within a fete feet
of the 1'asquotittik ltive•r :ms,l tlo•ttra- south 4 aleg. west 475 feet list([ votith
11 4eg. cast 105 feet to what is kitown as Mit'snw. t property; that t!te
s<tryGt kill the cwar-w %,)tall •1 t!I.g. wept egtt :t-$ 5o fret in wi,lth arc!
nivux the entire coun-v ran within it fi7:v fret a•f P:rlluotmik Itiver; that
the pint as rterarded itldient.•a that UtlIto poilit betccel► Calrolilllt Street
land Preyer Street wits 11o'sc more titan ti fret I•etwcen the hi;;lt wnb:r
rllar't t•f the river, stu•1 the eumert bunt:dary of lUversitle avenno, and at
latest points there was Ir-s bank 6 feat; :and that fliver::tle avenue between
Caralina and Pr,•; ••r Street-4 is an improweel hard -surfaced road, 16 feet
in width, in general us,! by the pshblie.
"Al. That raid pint in,liwt!(•. llltlaerogv lots. b6l oil nod numbered for
purpurs of sale tat tb(! 1•11161ic. That ilia ilia- va,lwart'ly cwirse of River•
iiido Avenue there were nntnrrun: 50-fuo►, lots, lurid ulf :%fill numbered,
betaecu suid Itiversitle avenue uml the 1'it„lmasink- River. That some of
the lots were of it dept}1 betweeit Itiverside .lrruue nn,1 11uasluutanit River
of as little us 9 to 13 feet: '1'htl, :+perilit-sill y, flu: lot designa led its NO. 161
land a depth on one, title of 11 feet vital fail flat! other side of 12 feet; t.!::at TAt
No. 242 bud a depth ton Otte tide faf 1st feet and on the other a depth of
15 (get; that Lot \'a. ilia had it depth ton one aide of 15 feet and on tile
other A& 24 feet. That oil the course of Riverside avenue running south
4 4t14;. west where there wait i+tdieutrd it strip of huh,[ not more than,.tut
feet wide at any point !.,, lots were laid off and numbered.
''b. That all purties to this action claim fcoin a common source, to wit,
the Rived Land Company"
r r OEM r
SP111 \ G TEIBI, 1952.
GAI'lii►A v. 111tttetir ,i-
r r �
435
6. :lint ltivrrAde Loud l_'famnpunv, on rivell tlntt•s in the t•rnr 1
ltlwe conretitnrr+ �±ute ifah► the pQi�ae+liltn tof plt,illtitf+ who nnL " 6- ;
that be ween the+e Wts un•l Pustm-slhmlk Itiv,•r dime is that Rftv-fnnt tvialtil
of tZir,•r.isl atruur smo! "the afisrrniv itionsril Ytril, of land" between the
er.s!e'rit Iltye toe !,. mid.iry t.f t!N' tlwe!tlle laltll the river, "It . I-Yreelling
r) feet lit :fury_ t,')Illt firvisr-Sne to the-UlAtn_"'s h'va-1 911f11•P rena-hine. fat as
tuwnru it nairrow Aftttu ueurn wfityli _ - uu•n etolntlF stouts to the water'a
edge in a c•ompairittively re3•IfU1 r� m=anit11r,"; that according to nteasure-
tneut tll:n!e tot fire srparata points between the cost cd;;e of these lots,
Ses. 152-136, eastward:v to the break in the river bank the distances
ru^.e from 33 feet IQ tP) feet; that according to measurements uu(tlC at
same time wheat the tide I a.,; 10 inches below high tide, and at ilia! Bantu
points to the u•uter'i edge the distances ranged front 60 to 32 feet; that
between the lut:a, where they abut the wetitern line of Riverside avenue,
and tilt. ed-c of tale water lit 1111ruil Leigh tide, the distance is nhorc than
51) feet; and shut .!It. tides is Pat •Iquulauk River are wind tide's land are
not iniue+7cl.d i,y toe ovemi tiles.
7. T::at tbereafter Riverside! Laud Cumpaay, by deed dated 9 May,
1204, null recur&d in .I unef 11104, Bows 27, page 504, conveyed to J. 1<L
L'Ito1• lot;a ttutibervil Ili]. 10*#2, 169 anti 75, its :,)town uu the glut of
1 Jose, 1992, lineal in'!!a aliute!v following the desrriptiott of -said lots, the
deed contains tae folh,wimig:
"Also the lands utider the water ititd right of cutry for wharf purpose's
in front of said lot: ,�,I69 uud 9161, uud Ktai:; and also the handy under
the Witter nntl the rigitt of entry fur wharf l►urlsoies, bt•ginnind at lVeat
line of lot "N2 on 1'u{,luutmnk Ritcr; throve Vusterly and Southerly,
bintUtig Itiwe•r•ti.le..1v(•nue to Mrs. S. L. Iluthaway's tine; thence Easterly
i with her line project -A to drop waiter line On 11tastiuotank River; thenco
lbialinthe urthty tietterlg y to oppusilt:lot 161, thence to
t
the beginning'"
(Witt► certstin exception not now pertinent.)
And that J. It. LeRoy and wife, by pitl,er writing dated 7 January,
1014, and registered, purported to eouvev to the Elizabeth City Hospital
j Compunv certuiu described property, substantially ilia same as in the
above den -al (ruin River:.i•'s• Land Company to J. It. LeRoy, and "also his
i right, title and interest, in land to the long above described for wharf
r � purposes its by Grant Number 76467 issuedb p p y the State of North Caro-
line, to said J. H. LeRoy oil the 13th dry of February, 1905, and arse
1 ber 16497 iiiued to T 1T T-11— 1.•- .1 ^

m m m M1= m= m r m m
r m r m m m m m
4.14 ix rim til;1'REME (:Ol'lt'1'. 1235 x. C.]
C.urucn r. 11u,r1 .r.\I..
the 9tll [Illy of \l:tv 15i15. which gr:ulta are dull• rccort!ctl in the o!5ee of
tlto Sccrrtnry of Stsltc, ctl•.
Acid that thror1-!1 collllected elntiu, art Out its derail, n paper u•itinq,
dated 1 Oetubllr, ,9:t5, slotl rrgi�terrJ, from .lulu) ti::'iba, purported to
Convey to tilt.. MlIv:smi-N.- lluspitul, lac., "all that p„rtion elf suid property
Iviug south of cite uurthern :ine of t.'anllinu Avruut' ill Said laity of 1•:lizn-
l•cl11 City, maid line extradi:h to deep wiper of Piu-iluolUllk Riv,`,
Jilin IN'lllg Ilse •!ivisiu:l [Ill[' f,l :1t1','ll care !: m AV!1:1m. :Ilnl S:I:t! live -live
I•x!PIIdvsJ1 till,[ silt,! hoslaIllll ,;rutllids l,r,llier, l•t'lll, so) tr:lr%et! by I•m.-te
hl••lgr •,
(It being found fillet the origit:al runveylloc(•a Joy Itiversid,r Listed Com•
jollity Of tutsNoi. 152-1560 Ilntt•tate t!u• cullveyaticl: to .1. 11. Lelt,ly a+ set
forth altnve.) I
ILQ. 'Clr.1t the 1'ustlnlil:us!c ltiver is n large witten•ourne upon lvlcch
illirly !:Ir;r ruunncrri:e! \'•'�>e!3 j.!v alai SU, II 1111•In1; said river way
all, Ile reaell the „Grail, vartUai Ill!:Illd \1'll►t'r4 an.l Isle 1111vIgaYe \valor!
Ot other St:t:e±. That the 1'sluluutank ltiver i•+ it nnvigsll'e s!rrane. 'L'h:1►.
Ilse cllanne' .in said navil;uble +hrnln iy „•\real limidred [•arch east of
ltiversi,!e Avt'uue in frwlt /►f lotx \o�. IS_' . ""'a: ill:nsl,lialc!1• in
Cron: , . hrtiv,•t a 1'n �, r stn,l C'itrsolina Str,•t-4, tow wmers ... are.
/•"IIIpUrll ti\Y •!y i!1:11!•IN' fs'uUl till• alN•t'r line t•, Il•illl,s 1(io fvvt out in
tile, river This! -:Ii,l rllsel!I,w water[; del',! rnl•+ll•!,• of I'Oatl:llt s;ItTi "P."
l,ntall boats still! slush craft lulvi;;nte the waters of cite ... river 1lirect!y
east of said lots from cite shore line ullt.
"0. That the city of Iaizat,ctll �,ity I111.1 till• (_'Imlay Of I'asgnntnn't,
with the ronst'nt Of the A11-1•onurlc Intve exprt•;-,:d their
intention to build a Lnikbestl ter bren!twater 154 (,•ct f rum the allure line
intmc,liately to the ellst of ltiver4ib) Avenuo :unl in front of lot's Not.
154-lion. 'that the dt'f, nd:ulti less,: express-4 their further int•:n!ion to
fill the +part: hetwrrn tilt- Shore line will, tla: ln!':!t1 sod \rids d,•bris and
earth in s,rder to cull\•"rt tilt' will :1rcu, now lyin;; ceder the \suers of
1'ulujune:ulk River, into a public pn::t. 'Plait •tw!1 propn!rt park would
)PC an (A-structiou in tlw waters of itnnvi;;abh• strr:un, but avu!d not
oloatrurt t.lu: rhulnecl of 1'u7,plutank River.
4410, 'Chat ►t... !►rup•••�^•t netiu•, I►•o the mart of the t,-fend:lilt+ as set filed\
Sl'ltl \(: TER1l, 1952.
437
'.mrimn r. fl.•.r,•\•..
dnnlagem that Inlly Its.:n!Trrt,I Ly ►Ilya• 1,!aiutilTs IVonl,l arise frail a dielti-
r.!Ils,•at in nr+tsetse valln•s nt.►v elljo,v d IY Ow"t. p%lintllTs by t't'a;ull I,f
the Iluxitnity of suid Iws 1
. to f.n u'utt'r,l of the . . . river. '1'but
th:.4 dinlinutloll ill Ill•stlll•tiv value :11111 IUIIB,YIIlrllt ,111111.1ge would not
arise fruits the threwo-tletl Ut.atl'nl'tloll .It' 11l11'I�;IIt1411 �,,:r fit,• I,IIt 1\'Ultld be
inci:xnt to and it hv-pr,ulnrr .•f illt:h O!,str,lcti,•n of navigation.
I'll. That 1011.11'IIT.v will YIIITI•r-wriml.; l!;IIIUhI: If lilt! 1'e+tl':IIIIing orsllr
prayt',l for is nut 6,11-:11. '1'It:lt then,!ants 11 ill 3utTcr nu dunul;;e if
touch reslrainillt; or,ler issm•:,
"12. ':llut Illi tit.- originrll t•ullrI.-YUH •t•s b;• the Riverside Land C'uulpnuy
to the l►urties herein apt!/ur tlivir pre,!et'rrSors in title wore by lot munber
and reference tit tilt ufurrnl, nti„n,',1 1.!.It. 'flutt ;+ai,i plat shows the
Pasysot:w'c River as souO of the !;Pugrsll.ltical hunn•larilrs of till: soul Of
Ole ltiversi•le l.unll C'untlultly. T4at ,!I if till• lays m,rutiuutll s,ariu and
all file lufy 01town w. the VIIIII•1. 1-hit aloe 01.,1rtl Oil the Il!Ut Its Ilblltting the
:1J.,ar `Jill,• Of Streett, awl al'! t11Ut+,
"13. 'ritsit flu• pl:tiutills ure tax payers in the city of Mizuheth City
gill Cooney of 1': -luotank. Dust the 1113iutills have mode no delnattd
upwt the �,rr►uin;; boar,ls of the city of Elizahttit C.'ity ou•l C 11, it Of
Pas,lllUtallu that lido} tt•.ytit fl'..nl tll,!ir I►hlll Ili act forth ill sects'
but the d-4undau►i hurt. III[.,1 tst'ir intrnti,•u to curry out the .lull
iless restrain,,d by sorties. of cuurf.
"11.1. That ['see run4rueti,►u r,f said bulk-healall, 1 1 fill for the purpose
of constnu tint; sail I.url: ►rill ro:1t a ronsil!er+lb!e Sunl of moat•}• which
will Lc paid fl•vnl nlr•ni, y raised I y taxation in th.: city of Mi ubclll City
gull the
,� Coutlty of !'u,,ln•)r:u1k."
UtIonJda'to fart tteo •t• r
• se cmt�udt.d a: Illnuers of law
"J. That this psl'sutilfs were tiller no Ica -al ditty to mako persollul
protest to tilt: t overlthuo, blNlies of tills City of rltYlll,Ctll city airs the
i County of 1'ut;•luut,ulk ('aunty l►efure bringing this Itctioll.
Thut Lo-ts \t•+. 152-156 abut and are bounded by the wt'stern edge
of Riverside A-11iw. Tout plaiutilTa ns.e n,�t ripariuu O\vner unJ hale
no riparinu rust: inch u+ would entitle chilli to enter suit lundy for
wharf purposes, or claim title to Ian,[+

r M-' M_ M_ M M M M M M M M
439 IN TIE SL11.1111E COURT. (235
t:rlTltlllt U. 11011-ITAt..
presumed that the title to lands under nnvig;ub!.! water is in the State in
the Itbarnce of it shotvinK of connected chitin of title with It -ant elated
between ISM A.D. said 14•15 A.D. +1'llut at the point in lloestiutt in front
of Lob NIN. 152-156, J. It. LeRoy did not obtain the right to ether fer
wharf porposm ►old Ilia buccesserr in title, the defendaWs, are! not riparian
owners :Ind have no ripuriatt rights in or along; the Pu+quotank Itiver
intruetlintely in front of suid Lots Nois. 152-1:54.
on aattl plllt that there wit+ I►Wy It
q!S w •tr,t ► ui uuUiC Ital- _ _ ell 9111a11Yltled Illltl b In • sold
ia_ u plat�and lot nunilMr, the Riverside Lind Caimpsiny dedicat.41
aIICR ItarretY Ntr11i or .lank too the it, for ttlL• i-ublie in ;cachint; the waters
"A. Tint ttuch defencluuts its are loartic.•i to this action cannot t►- pre-
elu'led and estoppt•il fan thest' fucts frilm perforiniag a u:-eful public service
and Mur►ructinft a useful public work and the defendants are ittit cstopped
frum the construetioa of the suid park.
" 8. That the defe!udatits have no, Iebal right to emer into the hurls
under waters of Pa:mluotank River and uhstt•u(..t the saute. That the c-)Il-
atrile0on of said park would coif.stitute a huhlic nuisnncc. J'hat if dle
defendanta owned [lie aforementioned six -font strip of land as allown by
the plat, then the cunstniction of suidl purl: would constitute a public
"ragce. That if the defendant, ownl�ll said strip of bank and the lands
uadtir water in fruut of Lots -Nos. 152-I56, the construction of staid park
would constitute a public niiiintice. That the said proposed construction
of the park should bP enjoined as a ullisunce.
"T. That if and wlieia the propu:le+l park is constructed the lands in
said park as artificially raised allure the waiters of the Pasquotunk River
will become vacant slid unappropriated handy subject to entry by tiny
citizen of this State. That the dcfeut!:lnlj fire not uunom„ the class t,iat
rosy ima',te entry and obtain n gratit to such Ian-!s. That such construction
would netxsitarily result in t;erious loss to the plaintiffs ns taxpayers aw!
such expenditure of the funds of the defcn-\,tits with consequent lu-s
should be enjoined."
The record allows that: "The defendants except to the report of the
refem and for their exceptions say": Theft follows exceptions to finding
of fact, a portion of 'No. 9, an-1 all of numbers 10, 11 and 1.1 for that, in
Substance, each is not supported by the evidence —but no issues were
tendered.
Then t!•-••e follows these exceptions to eotle'usions of law:
" 1. The defendants except to the Referee's Conclusion of Law No. 1
for the Sam(.. contrary to law, slid the Referee should have ennel--•t-4
`1'IWN\G TERM, 195.2.
439
(flat the pL•tinti!rs w.-r-! tin-!er lrgul lluty to, make l-rrtest to the g 4ovi-rtiing
belies of the defer- ant County atld the def-endunt City, in warmer still
firm a+ rciluired by law.
"a. l)efend:uits t-sct-pt to so nolwis of file :eg•und t..WIC!1191011 of Law air
reads as fo!luwi: 'T!Ic pla'lutitfs -.Io have rights ill 1'loaluutultk River as
a 119Y:c th-wo lg;hfure rate if poi -tic wily. for that such conclusion is Poll•
In!ry t.� !-1w loath the Referee +ht-10-1 \lave cuoehl-lcd (lust pluintill's fun•e
Q!1!Y Ylll!1 !•Ig:llt� 111 the pUrtl-•tl t-f PllvImst:111l: ItivCr aUtlg;hlt to be 11(Ill%t'-1
as it pitrk its is by lam' tit-clir-lc-I to till Uther hidividuu1s, fllllla or CUI'pUra•
tious not o iiing, riparian rights thereof,
"1. Defeudunts except to Ctmichision of Law \u.:1 for that such can-
! cluiion Is Contrary to law ill its elitirety, us file Referee should leave con-
rlu•!ed that the -!erl dated May tl, 1904, recorded in Il-u-k 27, pag:-t 504,
in t!te Public Iteg;istry of .Vail-lu,-tlllllC C'ottuty comeveil from The
River -side Laud Couip:my to J. If. 7.tatuv all luud.rf of tilt grantor lying; to thu
coast of Riverside Avenue betw-•en Carolina Areivie utid Pryor Street,
and that the .111-cutn0e Iluspital, Ine. is oow tile o► iter in fee of said
lituds, tngethcr with fall riparian rights aftcuduut thereto.
"4. vie defecdants except to Conclusion of Law -No. 4 for that the
611/1:0 is contrary to flow furl it entirely unsupported by fuct upon which
5!Ich P-inellisi0tt emiltl lir--l-t-r!Y lie nlillle.
i " 5. The rt:fendwits except to the (;th Conclusion of Law for that the
• satue is contrary to htw and is entirely unsupported by fact, furl tilts
Referee shoul-I Have cunrludctl that a;t 11911 ist the 11111ilatitfs-tile defend-
ants land thr, right to construct the public park into the shout waiters of
1 Pasquotank River in so far as the chantief thereof wits not ubstrtirted;
4 that said public park would nut constitute a public nuisance slid that if
it did in Net constitute a t-ublic nui:muace, flint plaintiffs reinedy is not
by injunction hmt bt• suit for diming;es.
(lefeu-!alit+ excel-! to Cbtichisiuu of Low Xo. 7 for (hut the
%sane is contrary to flow and is entirely unsupported by fart or proper
pleAfl i ng.
"Exceptidns to the Referees Allowing the plaintiffs to File A-lditlonal
y Pleadings Following the Clusitig of the Testimony:
i "The defeuduttts except to the Referee's sustaining plaintiffs motion
] to file additional pleadings as is set forth in the "Supplementary Tran-
script of Furtlw-r Proceedings" for that the antendinunt to the complaint
}' so allowed constituted a new and different cause of action."
r'
On the other hand, the record shows th4 plaintiffs excepted to the
fifth conclusion of law act forth in referee's report "for tbat there was
ns •idence.or finding; of fact to support -Rome. On the contrary. th

.1Jnsluunuw Is Set •ltnull J11110 all) up •03.1.1pi alit Sol toapp.,;t all n 6NuI
-111141(l alto Xq [09111J FJ.1gllyllt Fu ilim Fee 'anFFl Flil) little '1••111NA1 m lij%;
Flg1 aanaiapi luaFutla 11 ..I•Ilaallla>, ;Nl Split 111%+tJ "I'LL •SJII, u Sq 1►31J1
-milli Of pa1111ua air F.lapilaJo) :►gl g•lIl1m I.IIIJ Jn An%Ft ttls FJ•:ISJ waill IIJnt,
•FAauA Jagtn FnuJAuuul Joulr 'll;.f '.)'\ ti;; 'yGralu�J •J
•>;JloW.) %1.111.1.1.1JJ.1 Si11F1116111111.1 It illllJ.rJo.hr J410J.I41 ),I 104st)11-111 :1V11.1J:1i1 line;
miull 01 aq IIIIIrs.11 „a.1tIll.Idt7J•l Joe :I,.I1e1.1 Ci.l•111.111 till Ill a7liallJ/l JO .0111J
•Ili1
1nu„
'uollan Jna,nra 1:jltlt111o) n1 I1 il 1101y r1.r I
�ttn
F11 11a111 all) 11!113 It.0Is.1.111t1:1 •,11 1! J! 'Fill) 01 F\- „j•1a11 aj.11J SJUFlo1111110i
Jot Jallill till i1111J•/1tIJ 01 It -lid aci.).1llq Jo p,1111 r.11111PI1.1pis Jp
IsJ�1►tiFlp aAlttl lino, ago lliungti., : F Ill PI 11.1111JFAJ.1 1101),anh ls:Jl1 .011.1
'JIr.1f f It 01 A101,111 loll VI J41.1.1•11 ilelAlplll•.J. Jod.t.splaseJ 314#19 II.J. f 1l ISO JFI*
AVE- - . -• -1 - --�. ..1:/.1111 11111 5.11 '_/1'' :all) II.,:IIAI IGI J(►JJa ,•
Mile t•11 VIIUIl`•11111 JII'•) 'i1:•0411: Fill) till :1J.rti Ji.11Ti j•.IJ.I
. r•)ItitlalAJAp .1q1 F1ule11•1. ,��. .J. ':�nn11"�1.11
•r)tyulpthli► N/•`l.'.I1 ;1• u,/n./!.11 Porn
•l:.1.111.hlfll►'Yl�rll/ll•lll Jrt, .l.l tl.rr'll :!1 fll.l O,i1
•.Ih.lr•1 Ilalr.cp S.1i1; put: •1.II,ti, 1 a11;J.11iitl
.11 ISuit IsIt! It Ill ItJoI1.1JAlo .11oi.141 ),Illila .1111 3•1 111.r111: al' •1111 ti1•..1) jrlil it111•
)11•tltl;litl.l •►;I) Jss jttli.1.1111.1 pull 11111h.ts 1111
ir) !:it 11.im Fp-111a111ilpiel' ail) Ili 11.11nil> !-It Fn11tltti little %%it, JO Fllbl%110110.1
aq1 111111tJallllltta ,f:F.nul�1►1 sit Is.►1►IA.►xA .ulltl loll: ill sllepi•nA1Ail a111 .i;:•jcJ
-Ih1.1: It1.1t11 Jn Il.IItJ to) Joliet '.gol•nl lo.1.t.►f11111111 Islllf :IwIllai.:l; loll.; oil 11,111141
-11111 .111,1 JO ItnIF111.1Ih1J Ilap.1 n,l.•, : 111.1.1.1111 ,.I1:•nI'11: will i 111.1%oli•►J .I:i.l.
'.li.nll:tltini 1.11 .1111;1:1F Ali) J.► sta.11
11.111) -poe'llilic O) ,'Jilt IItA) .l.l.l11.1.1 all) JJr'1.1'1 i1:11) .nit lie a.111.1JoIA•1 nil Is.1.1.11;II
Fltllti111•IJ•sil all) tl!Il) V.11f.1J, to,111 I1:•141111f Ills lrl lr,ltl.l.t,1 .f:1 L
1.11001•0•1 Fill fit it Fit ..:1,1•l i•li .1111 jot ).►t!1 jo i lllill::r
.1.IA.1.1 Joliet Il.11hl 3,I1111'Itl, 4•1 :IIIIIsIt.01 IRi.l) •1111 Ion i••►.1.1J�.1 .s.1:;.sill.la VIL11 A.Lsei;
11111i 'VYllllll J.111)/► IIse1t11t ',Al11gF 11:.111•I1! sill .Ia1t.1 It.►.1Jat! Jf. isifl•1:IJ all.i.
„• 1.111/1� J .,I1I.1.11111� .1111 :11 11:./,1.11, .1:t11:� IIIf1•IJ Io1:11'�•I.1.1\.1 •l:lllt i'111
Ill Fill 111111apil.111)'�,11;) 'i• X.Irlelwi• 1141 `I.1•li•►.1111 Sol 1..1i11 Joliet 1.•).\1•t.►.1.1 111i1:
'I!'1;1 '67 .1.111111.LLg1 Ihl .1VIIII1 it il�J.li.l:11 •Iq1 ,�.1 ;..s,t•oi•Il.s.l 111.1111 1•111• •loll
40.1.., :�.IN1111t) FIS .Ivliilr •0111 _\.J 11.111:1� `••1.1111.1 it:...l.le! >,11n1i: Jo.Itld.l.l •i11.1.
.1'i•tl.11`tll Itl:.111'e11' 1F.II:I ;I1111'11l '�: 11111.
•.�1lllen, l �n1:1o1nL>r,1 ttI nIJAI ;n
11.111'tIN JI Flt i:s.1j1.1 Joliet .1,1.1.11 .11111:: •ilil 11)IA% 1•01.ii'll r ..lit J.1 11:t► ioell: W.I.i;
i11.1 11.It1: I, k1 jildleluIs111' ,till 'FItILi.11..j•11• 1.111! F111111:f:1,1 �.1 Ilia, ..I S, r
rtl i��1i )IA.i. !I\i1;.lti
•lualw`pn[ Ftlll illl.tl j.:e.daJ F,aaJJJA11 ag1 pJoaaJ 11!4• 31"D atlsl,
'�l'1ii!l'inaAn I1lnlua >ri Jill FI lualillllollpt,
'y.Jalf� a111 poi paxnl nq 411 F1srsJ J13111 JdAIIA.IJ F1i1l►i1rlll 0111 111111
..flttnn,7 nurlonloim,1 jot FlisaaU Jo JJll:laA11 alj1 Ju Jaglo all) too ';goal a;lletl
'y7, ,ouf1 ut Joailit)JAi •.�updulu,] Istnr•J aJo1FJAAt?l jet luill uu uA1011R 1'u llyl
p:tlt s�i pun fi;81 1'llli TS[ ptni oil 'Fn�� visit vie Isalnu!itFap FJI!lu!p(d J0 ►lnl
0q) JO l?JCM16112 S121111p.,1111111 Fs CIIA1a.%I.lp JO 1a•1J111 1(:)IIIM 111111 aAU(1 0111P
-moll Fr o) ltaJJ:1J.t.t .111AWA1JIs JU 1: -111e; .1111 Ju JIJ11.1 liti t SI,IlaIIm llllI losses
eq ::la.lrt; lole JoaiJtil Ira 'ill %tut ,nm timi j.pilir J•1)r.n ; taiel plus ;fnllaoistmoue
Inesg p:n:lnJlFaA ileus 11.1111161.1 SelaJJli a.11I .,A111 little 1.111Ault F)un
',111.11t11 J1.11i1 •FtII1t Is11.1J•s() :sell 11:111 :.1v111L/ Sly tit 11.6.1.1110 0.111.1111a alit
Sri Ild'iJpfi•ll:� 1i•1IIIv a.lp ';.Illn.l Vi111 •\ol Im. I Jn F.-Ill
.10111.1 a111 iNllt '•►aJ•tJJ�J
wi1,1e 1;)u,i Jolt FYtttpnl�l .nil lltlil It.m.A.►ail Is1111 11.1yi.u(i►le r.1JnJ.1.1mil'N111„
. •ltt.nuJo::.►uln Joiu>': ulJu►Iln iapJn ,aaJaJJ�i
:o y Flailjttna .snit polls 111.140j 1.1-9 nl.►.L.q; .n •1.1 nl vPlIJ :nl) 6plly '1:11t1:Il1Ilo;
a•J JOJ pilkilill 111.11111111.111111 :1111 GI l.mil'ai li;l.11 .1.IJ•lJ.ltl alto Jr, .illll>:r.1N'.J'd'
) . J:':1'IJn. O I111.LKIIp.1 a.luluilk .unJ ,L;mil1•u11; Ilua AIMI ;.tells.) Fell
.1 J .r. 1 { .t.•:
'i1.1�1:.tJ�•.1q Wlt Vj1lilloll.li4lo
:1; Jol Fll wed-1JX.t •1111 lllllf 'iu►IIII:jc:IF ,1 FJII)tl_1a11 .►oil Jf) ssu1j•IJAX.I ag•i.•,
p.1swIttill lone: Ps1:.•11J:I.Ij,11rtJ IIIf.JJ 11.►1111i:1.►J'I 11111s Is.1.!.It11;.1 .1.111 .4;11l!p1laJ•Ill .,Ill 11:I11 Jllti jr.
.I.•;jl:lll It Fit rpinll A%11t1 Jesse: t 1 1 .i, .tAfilltltll AIVI ill IIti1,111.1110.1 9.111W.Ms► I1111
.LTolllle 1 1'lJlln� • r.11l selt►.1.1 yat�j, iKIJ•1141�1:111 Irlllt
f i ti. 1 �ti-� t-1 i r I i Li.• . 1 ti. r �A
,Gll'i �ij'; f)iTF1 u,), r111 tl 1i;JuJ 1A, Fn •IA.tAiA?� .uil Joe %JpJ Jet FUGu coll. aJ
••jt LInG., Vlllj Jft Fla►I�II�JI:n.t aqJo l 1•It V1f n. 1 ..Aire:I )J114.1 ..�.L•r
• '111111!t!.1.1.1 Jo.1:•1.1.1 •1.1.111 11 Fit .�;;IIJ ►es l.l:irbj
sill Jn 1.!Itll Jolll; all) Not alal:.; .1111 Fl•llyl. lselt! .1•►J•sJ.11l Is v?:
►uu:1.Ito;) .owls Lint ,'ll n11.1i'Ll.• Jule .ti1J; 1.e,1 , . IIIu.tA•oj•.Ir r'ilu.l.l.•. tins-�,
.4;le.l.l•'1r 1111\Iti, r ll'J�.'tr .•t1lJtlt►ar • 11.1111Tt 11,IIOA:1� •;tJI
111 1• �. • I,, ��• J•s 11111 s.►11t11..IG• 1 11111. Jf1..1J•1':1.1.1:►J:111 .loll 111 111411J
►
)d: Flo aft 01 Fl:1rJ :1111 Fpt111 .gall 1.11M.1 Mli :411.0.1.1111 V::ul)•I:..'X:/ .1111 Islip
'J.1JaJA?1 -1111 JO Atill jot .,M) i.ns.lA p11:: tJr.J J11 F: n:Istty All) l►uu AJIw11.►:r ail
't Ilowl!t1 illIli.l.l.lI1.V1111.► 1.11lt isit.1.1• 11 J .;!.1 n1:i1 Itr '
Loot)
••I:.IIa•.l .il•,111 i►.111....1.1•1 : IIt.11al A111L•11;1.11.111 i1111t .11llllll:lfl JuJ 1.t:111116.1•, .
: V.tlrl�ioJ !le Nel*i•ll...1 ,U.1:n..I rot Jo.r.1.Ie 11.1 J„JoIII A11� •V.11 i.t 1:U .1.1;)a.N i.1i
".1 ^'i I sill V11•t1 i' .Lly.l ..Ill Ilu .II LILn .IJ Ilu .111111A .s, 1111.1 .nil 11•t 1111
••f.r.ntin. rr1un11u.r
.: IIIh.IJ :ialllll111.1 cfl,.l C.1 l�►! 'p.1.la ,�..�1.1•i .oil) .1- 0101411 il.IJ:11!1.►If amill X111.1
t
i.•yl la *1li�li lii111: a111f1 ;StllttnpiA x)ttlelott.IJ.1Jo ani little -in-4:►Ill �Il Imolli,
,1: +ut.$; ::1:;.1V.►J •I.Lt .till .Ilfl:u) : Iu.l poi .�nuf!Int►, l Jo111:•i ai11 • �.n:a Isa.ntlJ tf•;
i'l i:� �1111se:jJ11.I l�n4J IN. -A) i1.11.11;.Llill Jo1111 M l: Vllilli.11•opit.4111 111111
-n'tt.lt:.•ll •J r.•n1tn;1
!:•t;� '.I.1i.10.1 '•lIC:ilitl.iti :1ii.l.

�•111:„I'1'� his 'S11171,11111 his 1`\I:r•Ir1 !•r11, 31!1•1 :{i•I�.'il!
fl'11IIt 014: lilial jilligist1•Itt." 11'•/l„'f'I, .1.. 111 Pe l-hell r.SIll1/,l,l I'll„ 15.1
S .l'.:;1 {, 1;:1 ti.l:.:.' 1:1; /hr/ r r r. I;l/u 1►r,l v, 176 N.C. :.►'_':1, !17 `~. � :. l i. u►1
uti,er 1.'I19r+.
I11th••••1, if the uta,j,-vWl.s vier! 1.1 Ink.! flat' L•Ittel• cola-f, tilcir rig%f W
ituce the is. -Ile Ilnsrll oil thf! I'lem in Liu• trivet by it jury, nlav Ill; Ivaitv1.
H"uker r. 11 ighhts,ds. I:t`t N.C. '.Y., 1:►f S.E. (13.1; lfrou a r. iNelftelil ('u.,
217 N.1.'. 47, l; S.F. '_'d 1-1_/, and va:c: cited.
Its RMA-er 1'. Ilry/Ilfjids. %oyra. .tiler. Il. C. .1.. st.ilte-4 ri4t11'iY and ekm-
1•i•cly the prrlcr•lilre %%111:11 titil.,t Iry pair-mv.l itt a ctont-Ill.ftry r••fl.reur0, is
4,ra!f:r tit tirl•m-rye the rlh!It lu :1 tria! tt1' jitry (Illt• linit two rt••lu;ru!11vul-i
heing purttut•tit to ea_r is, hun•!), ua follow:
111. ()I1j.•rt to the (•1Avr t1C t•i•fvrl•nrf: at. fill- tiler it is Ime!t! . . .
'il. Chu tilt: l.uuliug in for the relnut of 1111 n ff:rf ncr, if i! I.e ndrer:r.
fill? excepti"11-4 111 111,1 lime !.) I':Irlivular A1,11.11;.;4 of tali t•::N!r I.y site t'eh
vrfT. h•11tivr al•i.t'gp1'Ia'r l:alt•r !•aa1••! 1•11 the falutn pn111ta•41 frtlt :It Ile'
1.1414116.11s illltl )':list•.! II\' 11tI' I•!•':11!11lr, �. :111.1 fi. •111:1:1.1 11 �111'�• tl'l:11 111! .•:•."1
of the i'sur:1 thtla Ictll!c►ell . . .
At--] "a fui•.tirc t•' t.!l.crcr itliv out! of thl•:f• r,-ftllircllivilk nUl�• con,tivi!e
it %giver of the pat-. 's ri: t, 10 hay-• tilt- 1•1nlrovcrtcil rll:ltters '411umit!I,.
too .1 joirr imol illi01.•1.1'/..• Ow !'1 1•:1sY 1111.1•1 III,- 1•xecl•limis tvif!1!,•J: 6t:
still 1!f it jibs." All'lllt.-Al, ti,•r. 52.19.
Applyiu.; this prin:cdnrf; 141 the rose in 11.11161, it appelivi that whi!f: d,:•
fendunts ext:f•ptcd to life firt!vr air rldcrcul.f•, ;uul fill.(! excretion it) certain
ittlren.e f111.1tilg'I of fill-: i1Pit l.nllc111+IUI1+ of law jim4c toy the refei• e, VIA
lhey did it -it trnlb_r auk i�ruh:;, am flid they dl.uun{d a jury trio' un u::v
i++ue. hence, tea! right tit have like iMille rui.l.,l toy Illeir I►'1m in h:u' I0,:d
Is a jury is witivell. Julies-,1, thev ulfrr,d no evidence in support of a1!ch
iairlut`. .lad the rulings of the jal!�t:,lula,!c Itpun Uxcclltimli to) the rcptirt
of referee, while out vxl.ressly vt/ NI:Ited, ul'c (IIIlhllillitlllt tU hO:dlllg Ntiall?fit
dt:ft!nd:utts all their l►Ivu in her.
The secuuil 1111cit1011 is slated by aplwllusttl in tit is words: "Does the
a u rasa I ComI111111• t11„t, �hotviul: a strip of land
fltcoraintlon tan tin Iti • le Lunt
fat shot..11yt ftr RiversiMe Avenue tea Illl•li idVI illtut rftnaill.i),(r ti >letltt`Nth)11
In this crinliectiun, it is appropriate too nu!e that, in this
findings of ' ••t llulde by a vft•reo, whan there is evidence
I
i
t
1
(
{
M1.1 t �11•,11 ,i:rl: II• _ toy ul•I•rllnul. i; licatrd I 11114111
Il:.nl,1:11-
111vilt+ IIINs11 k-Xv Irlllllv4 if, (•ulll'111ilulli of i:1\\' LllpruviA Il\
IIm ildge :still tit r/.11•Z!Ih!U{t. •4 Law 111111!t' 11� 1!Ilt �111!gl'. 111.111l1: the I•ivolat
41111•41it111 Iti u'!11'1!n'1' 111.; !Itltll}1'•. l.� f1U'1 �U J.u1'i thl�l af1111t• 1lfltla i11 ut, yl�
• .:.? t w.lr 1.; u! 1• .!1:?till :lilt! Ill-Yi •! 1 r�Y
' 1 -- — -- - - --- . I0114
nw-
It Is a `;ettet) pl'111C1p!e ill this Shia! Mat Wiles, the owner Uf hliid,
I.-,atv.I wittl•t or %vitlimit It r!IY A.I. tuu'll, 1111`I It Stilli vided illlll p1:111c.1
into tut,, rt►,>l.ty, alit t., , -1 pa:'k., nit•l ails itn•l eomrl.ys the lots or folly
of till -lit \\':!11 1'1'f•'!'/'ll1'l I" Ille 1-!;It. 11.11Illllg a•Isl! ill/Irl:t{rlllj;, Its: 1111.1•0-y
,!•'d:,'Ul1.1 till' a4,4.0:4. uVey-t, :HLI park-A..11111 .111 of Ilivill, to till.' list: of the
1.:irchaa.r;, im.l th.,•e f:bliulill; nu•Icr 014•111, 1111.1 -of tilt: i►ilblic. tics Ifix.
I'V. {', t.'/ffU/r,I.f It•'flf'/1, 2 I/ N.,' I fS. 1 ti.l:. 441 .! W. %%here perllllellt lleci—
VJ'1� of this f',111rt :11't' :1-�I'llllrh'•!. Allso 1i; Ill., r3t,1•s cih•d arc: 1. ria►•ufl
►. I..tnd Vii., 1YG N.C. 7i1: :tli 5.1:. '_.S•S; /'ullin.t r. Luufl L'A.. 13ti N.C. Mill/Wx 1. 1•l.rri•. 1.;4 -N.C. 157, 411 S.E. l�:I lj• I
Jl rt.er. ! 11! N .C. L11. _1i 8. 1•.. II I I'l'1 rl !'.
f :. .1; Nr.rlf•u r. ltili:uhrth 1'ilq. ll;!1 X.1'. a�Ei
\•. ti.i:. 311: Il'#Hxml I.. 11 .1• II N.V.'
I.11 •elf!/. :1 .li:! Itl:l S.1:. 1g. � !,
I'•,-alcr 1. Altr•,Iler. _•'_'t1 X.C.•17'' :;x ti ..1 1 ce a .►
-, . Is d a 11i.
III fill. i'Ifliins Cora.'. Mlpro. 1! li !14•111 1.111:1! It (It:llf or Joint referred to Itt
N 6lC•1, I•l'luftli_i .1 part of tlw ,tt•1•41 w, If It ucre wrltiell tlrreltl• solid (oats
lh� rcforc, tvf! plan illdiculvd all the 1.1:1! is III, be regarolf-ti Jim it unity, auth
the p:trelia.wr of it 1i•t ucll:lirrri a rig!it to Ililve e.te , and all of the \eav,
stud streets oil tit,• lout. or inap, kept open." To supllurt this ciety tll(!
t'uiirt quu!e!i wilt aplu•oval lift• fullowia;; from U'lliott ors 1toul1s, Sl.l.. 121):
''It is 110t ImlY tho,t• u'!lo I'lly 1:111•1i (11' iota uhnllltlg flit u road far stri-t.•t
Itliil uut on it it for itl:it tlt:lt 1::Ict• a right to Insist 1111011 the uplcuiug of u
rusd or vtro:1a, hilt will -re strel.t.:olltl 1711.14-4 aro markel! fall a l►1ut nod lots
ere bought Nnal -at,!,! kith rcf,:rral.c to the dote air phf1, till t\•h.t tally «•ills
n•fereilce to tilt: };em.;:tl if!im air +rheme diselusell by till,phlt or map
uc•lu'tre a riglit to till the public wuys dl•jguNGltl fhercull 1111141 llltly vitfuree
the dtdicatiuu. The plan or scheute indicilletl oil the Imilt or plat is re-
garded as it unity, and it io presnlmf_i , it, well it way ilea that all the public
1►•ays add ruluc to all lots i•u111rut"I its the g1•ncrul pbtn far melevuot.."
The reason for the rule, as slutetl in !lrreit 41..ililler,.•copru, is thut "fill:
grantor, by Ilutkiu;; sot Il it cunrtyunce of his property, induces the pur-
chaser to believe that ths: strcet!c Nllll alleys, squares, courts and parka will
be kept open for their use aril henefit, uutl lt.tviug acted upon the faith of
his ' lied repre:entutions, bused upon his conduct in glutting the land!

• m
444
t A
Jeff-] ­41ill.,
ai %%4:11
Ole
7 A. I.. It
AI It
or :1, '"
!Iklt 1111!J!jill.,.,
hilt foot." all hat t I
WMAI 'tal V� 111.11
tini!.v*' Move
ll 9111101-4. Joe W11411, -lot 64:W­ for
to it 1-1481, or jolill 114,1111ir'.. 11 11 1.
to III(- 1pip of 3,11 Y
I
R! Stri-1:1.'i .11141 JIj I'l
PlAt", its Ivel! eve of
"r 4811wr lifillp
JVI i!lo,:i ItA tho. . tIT of Ow St.p.. I I ...,I I. A 1!41
fit tl* P.M. ( wil 4. r 'V
11, ... got- .4 Car-1
1111it -
it i, Ill't (A that 11.1
rt'll I I I. -%fill Ilav ig:014, waf,., Is if
1 *4 volli�fitlllq! a
P"Yir is vilti"It-l! !41 1,-(' fill- I! W
11,1-11sill.e. .4 Of till%..
1.11 f#jl. t.r
Aul. St. Itt'll. S76
p 17 Awl. 4351, 129
If, . -["r. G72 IV., 1 1. right Of flift-igali-.11
life ripari.111 of%% r. "ll, ljf!4! 0.f!".
Or
ricer
of uaYit;;tlj,,a,to) right, a;to Olt, r-ght
loatik at :1
"a
Stri-aill I.f fill, to%t,l16W if)#!
it it v.:Ivi.
r- 47 t-- See. 2 1 :1.
117 -N-(. 12 S.I,'. "I" the flimpliet. for 21il. thim r_qoplrt I ..Illy hp.t.1.11 11. gisla!itmoll prietor silill it ripartall .1., 1 l!"! i•I., I
. t lithora! fire)-
pruperty ill tll,.. %Vale,. fl.o.11l:lgt! Y 4,4111el .1"I. leave? 'j fIjjaji!jt:,j
111119ill", I)v
growing llilt of to) 111(*ir 1:111(i *I.,
h1l; it lit
the ri..Ilt elf
flw rig!lt fit fr(,!It'3
Witte-r I'll
eunslrllct I tit
pie r'
or'eI9'14*1111
exercl.0 of it, .4
for in !Sc
111101,11111t, %vu tero." rig!ltj ill riverg still
Again it, t!gj..
T Ill it i
IlrOliverty. that It, (11"filig to) wt..l I dedilrell
HeArIv . I I SeWed TIIi3 fludlifie'l
to riparian OtieftersIlilo, the . . 11:1 i'Qurprelt.-If in
('X-Iti.'nsiff .4 1pecPisurily i I t!le big!IC-4t enlil If
Witter froint of the .411hille.l. K I
Ilurtictlisir pr, "I !need bol.11ILM
Oprictor, tll,.. I je
purml!eJ line.. •orojed(A firtsin l."Iell Side of !kis front luv'gliblt! Welter me-eli two .1
to lifevigillole wu!er."
X. Cj 111"I N( : TEIC M, 1.
-115
212 N.C. N3, 192
P. v. Wily. 1f;!1 *12.
11811,11wHy. . Ow right ul lot 11.16 - gah!,- %vati-1.3 over 11.1javelit
1.•-Ill,!er I It It felt- Ilill is io-sto.41 ex1-Iiiih-44Y ill the mi,iii-r 4-f
..11111s. 41114 Ify .111411114-1. wO Y I.Y*61-1111. I-f is grillit got-
!-Y <110- in a I.r1.pj-r0.V right, it is said, it) lilt
!1;9l1wi-P me laii-!. 51; kill. Jim 677,
App!vivg jjw-v
I:vipw, fit fill- ill liall.l. fill- Itivel-Ad.. Land
ril'ariall im llo.t off . Lillif follitilig all histillwallk Itiver.
sti-I-am,sun!aeem-dallel. %%ills, Ow plat lov which
it%,-!#* I'lo! fit-- I-IgIlf I.. lot mi-Ow,er, of ,tech 1-,!s acce-ss owur
"i tv; I t I -I. fri I;w fd 011. riv.-r. All -I the v1,11011,io.11, 41f
wI Ow favl, f..Ill:.l ill -j-ar
'11J.-. 61.1-4 111111 fool!1*01 3., sla!vjl Ill't? dlv.•: (3)
OW fl,.!Il r el .1. if, ;it! I,) 11111t.litl their Cul,11,141ilij,
.11:.! ti-A olit :1 O"ur an 011.
.1 tilt.
it" 114,6-11 4 .1 IsArk I'll the 1010T. hum-11 :111-1 slialNow
%VH!(.r I-1111lit. Ituiralite, 111111 rezilh
11 .1114111 fill all'
.411 lill'awfill the
II,U 1-'a ll iiwiwaiia if taximp-r'..4 fictitiel
'w 11-133
11111! "if :IllY pl1'„13 11;01 All-tifleill'. is!all-ls III- ill wir 4-f the
Ittil(T-4 #-f IIIe (.;Ii! 0.1* Ille Atlillitie 4 Line Railrmid ".11111kill..
top
lot. to the Noorth Carolimi-Virgiiiin state
sliAl In 9,lil!.v Of it The Clitirt will take
Of Ill.• filer that the hlsq it fita Ilk Itiver is 4.11A of t1w Ill-Uve
. % .
1": 1;'1'! it its -56 Am. Jilr. GS11, Waters, 21-A, illicit
highwilys, it full-m-.4, im-ler Oeiiwii!ury
pr:l*.(*;I.!V.l Of Ow e-11111114111 Illat , :lily *111ire-ustionaWe obstriwtion thereof,
i.r of ImOgati-111 is flillaWfIll. In general, the rule is that sell
material to, Ilavigil. ,i,III Itt.,t "I'dwrizoAl by the limper g(overit-
1111:111A authority fire 1,10,tie 1111i.altres. See 3119. too. ". R. R. Co., 117
57!). 2:1 43; r. S-m-yer. 135 X.C. 323, 47 S.F.. 7oll;
v. R. C. 11. %;. 1,-. 14:1 N.C. 4135, .55 S.F. 877. Compuru
0- -1111irld "PI. :!:!:,I N.C. 22"T, 25 S.E. 21d ssil.
Indevol, it is stateol that it is Itot meezostiry that ubstrow-tiotis in list- wity
of 11.1vigatioll :111011M liuv-! actuidly interfeked with, or done it in circler to
rcii-ter such III, i.ill Iteem ; it is Allilicient if navigation wave
P 'y rell-lered I
WS'no 11"Ifivellivilt, seetare, mill expetlitiotij. The fjkct tit.

IN 'rj!j., LvUxr.
0! t: u6structitill lins . V !K- -I m-urry i-� ptOOH: 11t-fi0it has brvit uvt to
i, ils v!mra,-!,-r
Ifie N.g.111 t-f Ow hurt. mule III re-,jot-vt of ht- befir4
mid 11f the Ist-iiiciple htm .11611111. :0104-d' if
thurt- be vrrur lit to whirls 01-jectml is Itiativ, is
11"t 111o1letir to lit. fore :mjlj---.11 lit deff-1111'.11w.. th.q.. 11111K.H.111--i.
Lit Ptillellisitill, 111111 after dwe v"11,116-1-:11ioll lit a!*—.1,11111,11� It,!*
V.1114 .4..! afni is w.,(ell

I�
I
SECTION 2. ACCESS FUNDING SOURCES
'
The purchase of land and materials for the construction of access
sites can be funded not only by existing federal and state grant programs
but also by drawing on other sources. Federal and state grant programs
are extremely competitive. By drawing on an array of funding sources, the
'
local government's chance of actually receiving a grant to construct a new
accessway is improved. Public accessways can be constructed as a
community -wide endeavor by developing local funding sources and utilizing
volunteer labor as well as private contributions and donations. This
section reviews available funding
sources and programs and cites contacts
for further information.
FEDERAL FUNDING
The Land and Water Conservation Fund administered for the U. S.
'
Department of Interior through the N. F.-Department of Natural Resources
and Community Development, Division of Parks and Recreation, makes funds
available on a 50 percent matching basis to local governments for outdoor
'
recreation planning, acquisition and development activities. Each year
grant criteria and the amount
of available funds varies. The funds can be
used for the acquisition of land and the construction
of public recreation
facilities including public access facilities. Past projects include
'
regional and neighborhood access facilities at Nags Head, a regional
access project at Fort Fisher and the Wilmington waterfront development.
Contact:
Jack Frauson, Recreation Consultant
Division of Parks and Recreation
N.C. Department of Natural Resources
7225 Wrightsville Avenue
Wilmington, NC 28403
Phone: [phone]
Steve Moler, Recreation Consultant
Division of Parks and Recreation
N.C. Department of Natural Resources
1502 N. Market Street
P.O. Box 1507
Washington, NC 27889
Phone: [phone]
1
2-1
and Community Development
and Community Development

1
STATE FUNDING
The Coastal and Estuarine Water Beach Access Program administered
the Division of 'Castal Management makes funds available to local
governments to acquire land and make public access improvements. TI
amount of grant funds available varies from year to year. The divisic
has an annual project application and grant contract cycle. Past projec
' include numerous neighborhood and regional access sites at Kitty Hawf
Kill Devil Hills, Nags Head, West Onslow Beach, Surf City, Wrightsvill
Beach, Fort Fisher and Long Beach.
' Contact:
Julie Shambaugh, Shorefront Access Coordinator
' Division of Coastal Management
N.C. Department of Natural Resources and Community Development
P. 0. Box 27687
' Raleigh, NC 27611
Phone: [phone]
The Civil Works Program administered by the Office of Water Resource
'
makes funds available to local governments on a matching basis for tht
following types of water resources development projects: general
navigation improvement; recreational navigation improvement; water
'
management (flood control and drainage); stream restoration (clearing at
snagging and limited channel excavation); beach protection; and land
acquisition and facility development for water -based recreation sites.
'
Contact:
John Sutherland
Office of Water Resources
N.C. Department of Natural Resources and Community Development
P. 0. Box 27687
Raleigh, NC 27611
'
Phone: [phone]
The Wildlife Resources Commission has constructed 145 public boat
launch areas throughout North Carolina. The commission makes its
'
technical services available to local governments that have secured a site
and funding for boat ramp construction. The commission may construct a
ramp on public property or on private property with at least a 20-year
'
lease to the commission.
Contact:
' Dick Hamilton
Wildlife Resources Commission
N.C. Department of Natural Resources and Community Development
P. 0. Box 27687
Raleigh, NC 27611
Phone: [phone]
17
1 2-2

1
SURPLUS STATE PROPERTY
'
Real
property no longer needed by state agencies is disposed of
either by the State Property Office or by the N. C. Department of
'
Transportation. The normal procedures for disposal of surplus state
property by the State Property Office (SPO) are set out in G. S. 146-27
through 146-30. In general, these procedures entail a declaration of the
'
property as surplus by the state agency managing the parcel; an appraisal
of the property by an appraiser hired
by SPO; advertisement for public
bids; and selection of the highest bid, approval by the Council of State,
and title transfer with the aid. of the Attorney General's office. While
'
there is no specific statutory program comparable to the federal program
for conveying properties• at a discount to other governmental units for
specific purposes, G. S. 160A-274 generally authorizes the state to lease
'
or sell real property "with or without consideration" to any other
governmental units in the state. In the past, surplus properties which
other state agencies and local governments have shown interest in have
been conveyed to them by the State Property Office at discounts up to 100
percent.
The N. C. Department of Transportation is responsible for its own
' property transactions. The disposition of surplus property depends upon
the nature of the title: most highway rights -of -way are only easements,
and when these parcels are abandoned, the Department of Transportation
' simply quitclaims all interests it held in the property. Rights -of -way
owned in fee simple that are to be abandoned are usually put up for public
sale. If other state agencies or local governments are interested in the
' property, it is possible for them to receive title from the Department of
Transportation at discounts up to 100 percent.
Contact:
' N. C. Department of Administration
State Property Office
' 116 W. Jones Street
Raleigh, NC 27611
Phone: [phone]
N. C. Department of Transportation
Division of Highways
Right -of -Way Branch
' P. 0. Box 25201
Raleigh, NC 27611
Phone: [phone]
' LOCAL FUNDING
' Towns and counties have a wide variety of funding options to choose
from. Some of these options are described on the following page.
1
2-3

1
• General Appropriation
' On an annual basis a town or county can appropriate a portion of
recreation or public works budget to general beach access developmen
for the acquisition and construction of specific access projects.
• Parking Meters
tThe
revenues collected from parking meters during the peak tour
season (or throughout the year) are an appropriate source of funds
continued facility development and maintenance. Proceeds from off-st:
'
parking facilities may be used for any public purpose, but those -from
street parking must. be used for enforcement and administration of tra:
and parking ordinances and regulations (G.S. 160A .301(a)).
'
• Water Fees
'
A percentage of the revenues collected from water usage
(particularly summer
water usage as a result of peak seasonal use) cc
be allocated to the development of access projects.
'
e Accomodations Tax
A percentage of the revenues collected from an accomodations t
could be directed toward the development of increased public acce:
opportunities. In the coastal area, only New Hanover County, Ocean I
Beach, Topsail Beach and Surf City have authorization to levee an
'
accommodations tax. In New Hanover County, 80 percent of the revenue m
be spent on erosion control 20
and percent on promotion, travel an
tourism. Ocean Isle Beach, Topsail Beach, and Surf City have broad,
authority to spend revenues.
1
Local citizens and civic groups can also be valuable resources. T
may donate materials or funds, volunteer labor, or act as coastal
'
watchdogs to ensure that beach access facilities are properly used.
including such groups in town or county access projects, communit}
involvement, participation and commitment can be strengthened. Retire,
'
local scout troups, Kiwanis clubs, school clubs, university groups
garden clubs, clean
county groups, local civic and local or nationa.
environmental organizations are among the numerous groups which would
interested in such coastal activities. Several local groups include '
Neuse River Foundation, County Crossroads, Onslow
_Carteret Count,
Conservation Group, North Carolina Coastal Federation and the Pamlico-:
River Foundation.
Local
corporations can also be valued supporters of public access
Timber companies, for instance, have had a noted history of land ane
material donations. Such donations, along with the contribution of fu
'
for access development, strengthens the corporation's support of th.
community and its citizens.
1 2-4

NONPROFIT ORGANIZATIONS
'
The Trust for Public Land (TPL) conserves land as a living resource
for present and future generations
and works closely with governmental and
nonprofit agencies to acquire and
preserve open space to serve human
needs, share knowledge of nonprofit land acquisition processes, and
pioneer methods of land conservation and environmentally sound land use.
'
Because donations of land to the TPL are tax deductible, individuals
or corporations may be able to
take advantage of substantial tax benefits.
Once the TPL acquires land -through
purchase or donation, the land is
conveyed to a government agency s
8 cy for public open space
preservation.
Contact:
Kathy Blahs
Trust for Public Land
219 East Fifth Avenue
Tallahassee, Fla. 32303
Phone: [phone]
The Nature Conservancy is dedicated to identifying, protecting and
managing important natural
areas throughout the state. The Conservancy
identifies land that supports the most significant exa Tles of all
components
of the natural world. It protects habitat and natural systems,
assists
or advises government or conservation organizations, and
increases public awareness of the need
to safeguard natural diversity. It
also manages numerous Conservancy
'
-owned preserves in North Carolina.
Land donations to the Conservancy are tax-deductible and therefore
individuals
or corporations may be able to take advantage of substantial
tax benefits. Once the Conservancy
acquires land through purchase or
donation, the land is often conveyed to
I
a public agency.
Contact:
I
Frederick W. Annand, Field Representative
North Carolina Nature Conservancy
'
209 N. Columbia Street
P.O. Box 805
Chapel Hill, NC 27514
'
Phone: [phone] _
'
VOLUNTEER LABOR SOURCES
The Community Service Work Protram is administered by the Division of
Victim and Justice S— er-1ces
'
under the Department of Crime Control and
Public Safety. Community service is work performed without compensation
by
an offender for a governmental or nonprofit organization. Individuals
convicted of offenses
commonly contribute 20 to 200 hours of community
service work. Services performed can include office work, construction,
clean-up or
project design depending on the offender's background and
training. Contacts are listed in Appendix
C.
'
2-5

4
SECTION 3. LAND ACQUISITION STRATEGIES
Continued acquisition of land is necessary if adequate public access
to the shoreline is to be maintained. There are generally two approaches
to acquiring access: direct acquisition techniques and land use controls
which incorporate public access requirements. The strategies presented
here -can be used by local governments to assist in acquiring waterfront
property.
rDIRECT ACQUISITION
• Purchase
The purchase of property at its fair market value is the simplest,
most direct means of acquiring land. A disadvantage of direct purchase is
that governmental agencies have limited financial resources. A further
disadvantage of direct purchase is that the seller's net profit from the
sale would be affected if the seller of the property is liable for income
tax on the capital gain of the appreciated value of the property. Other
purchase options, including bargain sale or installment sale, may benefit
the buyer and seller by stretching a land -acquiring agency's funds and
reducing immediate tax consequences.
In a bargain sale, the landowner sells the property to a governmental
agency at less than fair market value. By doing so, the seller will be
able to receive some income from the sale of the land and will be eligible
to claim an income tax deduction for a charitable contribution on the
difference between the bargain price received and the fair market value of
the land. Thus, the amount of the capital gain would be less and so would
the accompanying tax on that gain.
In an installment sale, an agreement is made between the landowner
and the purchaser whereby the purchaser agrees to pay for the land in
annual installments or agrees to acquire a portion of the total property
each year with'an option to acquire the remaining tracts in future years.
By spreading the income gained from the sale of the property over a number
of years the seller may be able to spread taxable gains and any associated
taxes over an equal number of years.
An easement, or right to use private property in a specific,
designated manner, may also be purchased. The purchase of an easement
entitles the purchaser to use the property for a specific purpose, such as
conservation, passing over the land, or installing a water or sewer line.
The ownership of the land remains with the property holder, but the use of
3-1
I

a designated portion of the land for a specific purpose is trai
' the acquiring agency.
Easements are typically purchased when it is not possible
' land. Although there is no requirement compelling a landowner
easement, landowners may be interested in the resulting tax
Where easements are sold, a decrease in property tax value would
• Donation
The donation of property or an easement involves a landowne
' the property to a government agency. that has agreed to accept
donation, the donor receives no cash'for the property although
tax benefits are realized. These benefits include real estate,
and income tax reductions as well as no capital otherwise result from the sale of the property. gains tax tha
p p land donation is a governmental agency, donor If the recipiei
claim an ii
deduction based on the market valuey of the 1 ndcan as determine(
' qualified appraiser. In the instance of an easement, the donor
the difference in the value of the land after the easement as a cb
deduction. (See Appendix D, Tax Credits for Donated Properties.)
' • Prescription
' which aneasement
individual oregro pestablished
obtainsttheuri prescription,
useioa, the sprc
in a specific manner. In this instance,g use aaothez's F
prescriptive easement haize t
s been established f the followinghe courts tests f
' 1) the use has been open;
2) the use is adverse or under a claim of right;
' 3) the use has been continuous and uninterrupted for 20 year
4) there has been actual use of the property by the general i
and
' 5) the same path has been used for 20 years.
Currently, North Carolina does not have
addressing the establishment of a any case law dire
ach
context. It is difficult to establish prescriptive
prescr ptivvee easement ebeca
the requirement that the use of the property must be adverse. Ir
case, "adverse" mejkns that the user of the property did not have
owner's permission and t instead, used the pathway in the belief th.
had a right to use it. Permissive use, no matter for how long, can
be the basis for a prescriptive easement. A local government may .
' consider legal action to establish a public easement where it beli,
prescriptive easement for beach access exists across private propert,
• Dedication
A dedication , ication begins with an offer to dedicate the use of land -
offer is made by the landowner to the public and must be followed
' local government's acceptance of that offer on behalf of the public
_ 3-2
I

I
'
dedication made orally or in writing is called an express
"certificate of dedication"
indicates an individual essi intieontion
to dedicate an area to the public.
'
An implied dedication is based on the property owner's intention to
dedicate as indicated by conduct.
For instance, the owner's intention to
dedicate may be indicated by
'
recognizing the rights of the public in a
deed or by the owner's actions with respect to permitting the
use the land. A 1970
public to
Supreme Court case
confirmed the public's right to
use two privately owned beaches
in California. The court said that when
the public has used a beach for a long time with paying
s
the fact that
!
the beach is attention to
the public s a legal
right to use that beach. The owner's intent �to
give the land to the public
may be implied from his conduct of not
'
preventing public use of the beach.
And the public's acceptance of the dedication may be
use of
implied from public
the beach. Nothing need be written by either side -- the dedication
and acceptance is
'
implied by conduct. With respect to beach access, a
public access sign at an accessway is one indication by a local
of an express
goverment
or implied dedication.
'
Cities and counties may accept dedication offers for the maintenance
of roads and pedestrian
easements running to and along the beach. Before
accepting a dedication offer, it is
"chain
recommended that a title search or
of ownership" survey be conducted to ensure that the offer to
dedicate has at no time
in the past been withdrawn.
'
Cities and counties may own, maintain and manage land for
recreational purposes including
possible for cities is
to own public streets and roads, coup ies cannot.
Itis possible, however, for
counties to accept the dedication of certain
roads so long as they were dedicated to the
Although
'
public prior to 1975.
a county may accept such a dedication,
to maintain or improve a county is not authorized
such roads.
'
In many local jurisdictions there may be a number of accessways and
roads that have been dedicated
by the developer but not yet accepted by
the county or municipality. These
accessways represent opportunities to
local governments that should not be neglected. The actions necessary to
show acceptance should be high
given priority in light of the provision of
the state law allowing developers to
'
withdraw unaccepted, unimproved
dedications after a period of 15 years'(G.S. 136-96).
s
LAND USE CONTROLS
Local
governments are able to use t to
he Police by the state to protect the public's '
might
ownership of and to use thranted
shoreline to the mean high water e
'
mark. As the beach erodes and the mean
high water mark moves landward,
the boundary between public d private
property moves landward. Land
use regulations or loci ordinances c n be
used to protect the public's
ownership and right to use the shoreline.
When erosion or storms destroy structures, local
ordinances can require
3-3

i
i
the property owner to remove, within a given time period, all debris which
may endanger public health, safety and welfare. This is particularly
I important where remnant bulkheads, building foundations, pilings and
septic systems would be located below the mean high water mark or on the
public beach.
Local governments can also use land use controls to compel developers
to provide public beach accessways. Through zoning ordinances and
subdivision regulations, developers can be required to dedicate, Pa a fee
or reserve access areas, as outlined below. (See Appendix E, Model Land
Development Regulation.)
Dedication
State enabling legislation for county subdivision regulations (G.S
153A-331) provides that such ordinances may require "the dedication or
reservation of recreation areas serving residents of the immediate
neighborhood within the subdivision and of rights -of -way or easements for
street and utility purposes." The comparable legislation for cities (G.S.
160A-372) is virtually identical. Likewise, the zoning enabling
legislation for counties (G.S. 153A-340) and cities (G.S. 160A-381)
authorizes local regulations to provide for special use or conditional use
permits. The conditions for approval of these permits may include the
dedication of utility rights -of -way and of recreational space.
A local unit of government may require the compulsory dedication of
land for public recreational use consistent with local subdivision
regulations and/or as a condition of a special or conditional use permit.
In requiring a developer to dedicate recreational land, the local
government should ensure that the location of the access area will
adequately provide for the recreational needs of the residents in the
development as well as the residents of the immediate neighborhood within
the subdivision who might otherwise be precluded from general use of the
area.
Definitive standards for the size of such areas and the types of
facilities to be installed should be specified in local subdivision
ordinances. The regulations should specify why, when, where and how much
land will be required as well as criteria pertaining to the type of land
that may be offered for dedication. A formula for determining the amount
of land a developer must offer should be made explicit. The amount of
land to be dedicated should not be based on an arbitrary case -by -case
basis. Instead the amount of land to be required for dedication should be
' related to recognized open space standards and should reflect the density
and type of development proposed.
' As a condition to a special or conditional use permit, access should
be provided for when the permit is issued by the local governing board. At
that time, a plat should'be prepared and incorporated by reference into
the terms and conditions of the permit. The plat should bear a
' certificate of dedication and both the permit and plat should specify when
improvements by the developer will be completed.
' 3-4
i

State enabling legislation (G.S. 136-102.6) requires .that
subdivision plats filed since 1975 designate all streets as being public
or private. Streets designated as public are presumed to be offers of
dedication.
r` Subdivision ordinances can also require that interior subdivision
streets be dedicated to the public. The subdivision enabling statutes for
both cities and counties allow local ordinances to provide for "the
coordination of streets and highways within a proposed subdivision with
the existing or planned streets and highways and with other public
facilities." To make use -of this authority, the subdivision ordinance
I should clearly indicate that streets and roads running generally
perpendicular to the beach be platted to extend to the mean high tide
line.
1 I • Fee
County subdivision regulations provide the developer with the option
'
Of paying a fee to the county in lieu of dedicating recreational land
(G.S. 153A-331). The
developer may be required to pay an amount of money
equal to the value of the
'
space required to be dedicated. This money
should be placed into a fund
specifically designated for the acquisition
of
access areas. The "fee in lieu" option is not available to
municipalities.
t'
• Reservation
An emerging land use tool allows both county and municipal
subdivision regulations
to require developers to reserve land for
recreational purposes and for
'
street and utility rights -of -way or
easements (G.S. 153A-331 and G.S. 160A-372). One advantage of such
reservations is that they do not impose
dedication requirements in
instances that
may amount to a taking without just compensation, yet they
give the local
government time to acquire funds to purchase the property.
As this is
t
a relatively new tool, its advantages and disadvantages have
been
not evaluated.
Case law regarding the use of developer exactions to provide beach
'
access is poorly developed, particularly in North Carolina, and the
ability of local governments to use these techniques is apt firmly
'
established. There are a number of questions regarding the implementation
of these measures for access
purposes. .As there are few court decisions,
these
standards should be carefully studied before such measures are
attempted. A thorough reading and understanding of Dedicating and
'
Reserving Land to Provide Access to North Carolina Beaches (September
1982 Richard Ducker of the UNC Institute of Government, is highly
recommended in addition to contacting and consulting one's local
government attorney.
t
3-5