News: CJ Exclusives

Court: Manmade Ditch Is A Navigable Waterway

Public trust doctrine requires access to waters on private land

Is a manmade ditch considered navigable under state law, and thus public property, if fishing boats use it? The state’s second-highest court ruled May 18 that it is — and such manmade waters are subject to the state’s public trust doctrine.

Patrice C. Clarke and Fish House Inc. operate restaurants on adjoining properties in Engelhard in Hyde County. On the border of the properties lies a canal called the Old Sam Spencer Ditch that 30-foot long fishing vessels use to get to the fish houses. In October 2007, Fish House sued Clarke for trespass, and sought an injunction to keep her from using the canal. In response, Clarke argued among other things that the Old Sam Spencer Ditch was navigable water.

Superior Court Judge Quentin T. Sumner ruled that the waters of the canal are indeed navigable and dismissed the trespass claim.

Fish House then brought the matter before the N.C. Court of Appeals. On appeal, it argued that based on federal law, that even if the Old Sam Spencer Ditch was indeed “navigable,” Fish House could still keep Clarke from using it.

The appeals court, however, was not persuaded.

“We agree with the trial court and defendant that the canal, although manmade, is a navigable waterway held by the state in trust for all citizens of North Carolina,” wrote Judge Cheri Beasley for the Court of Appeals.

The state’s appellate courts have held that the lands under navigable waters are held in trust by the state such that “the benefit and enjoyment of North Carolina’s submerged lands is available to all its citizens, subject to reasonable legislative regulation, for navigation, fishing, and commerce.” This is called the public trust doctrine.

There’s a simple test to determine whether a body of water is navigable. As the N.C. Supreme Court stated in a 1995 case called Gwathmey v. State of North Carolina, “if a body of water in its natural condition can be navigated by watercraft, it is navigable in fact and, therefore, navigable in law, even if it has not been used for such purpose.”

Old Sam Spencer Ditch is not a naturally occurring body of water; it is manmade. Does public trust doctrine extends to it?

For guidance, the N.C. Court of Appeals looked to South Carolina case law. The law in both states is similar and in a 1990 case called Hughes v. Nelson, the S.C. Court of Appeals was faced with the question of “whether the waters of the canal are navigable waters, making the canal a public highway, or whether, on the other hand, the canal is private property, like a privately owned road. … When a canal is constructed to connect with a navigable river, the canal may be regarded as a part of the river.”

The Court of Appeals also noted that the N.C. Department of Environment and Natural Resources’ Division of Coastal Management handbook for development regards manmade water bodies as subject to the public trust doctrine under certain circumstances.

“[T]he controlling law of navigability concerning the body of water ‘in its natural condition’ reflects only upon the manner in which the water flows without diminution or obstruction,” wrote the court. “Therefore, any waterway, whether manmade or artificial, which is capable of navigation by watercraft constitutes ‘navigable water’ under the public trust doctrine of this state.”

As the canal was being used for commercial purposes and navigated by 30-foot long boats, the appeals court held that it was navigable and the public trust doctrine applied. State courts previously have held that private individuals lack the standing to sue for damage to public lands. Thus, Fish House couldn’t sue for trespass.

Because the ruling by the three-judge panel of the appeals court was unanimous, the high court is not required to hear the case should Fish House appeal.

The case is Fish House, Inc. v. Clarke, (09-1047) .

Michael Lowrey is an associate editor of Carolina Journal.