CARTERET CO. NC
COURT RECORDS
 

"Reports of cases at law argued and determined in the Supreme Court of North Carolina, from December term, 1853, to August term, 1854, both inclusive" by Hamilton C. Jones (spine title "No. Carolina Reports [Vol.] 46 - Jones' Law); Vol.46, pgs.234 to 239 (California State Law Library, Sacramento, 1/2004)
      DOE on the Demise of the COMMISSIONERS OF BEAUFORT vs. THOMAS DUNCAN; Supreme Court of North Carolina, Raleigh; 46 N.C. 234; 1 Jones Law 234; December, 1853, Decided.
      Action of Ejectment, for a portion of land lying in the town of Beaufort, tried before his Honor Judge MANLY, at Spring Term, 1853, of Carteret Superior Court.
      By various grants, deeds and acts of Assembly, it was made to appear, that a body of land, extending along Core Sound and the Thoroughfare, as delineated in the diagram below, was and had been for many years in the Commissioners of the town of Beaufort, as a body corporate, and that the lessors of the plaintiff were, at the bringing of this action, corporators duly appointed, in and by regular succession, under the laws regulating the corporation. The defendant gave in evidence a deed from one James Davis to Benjamin T. Howland, and from Benjamin T. Howland to himself, bearing date on 4th day of June, 1832, conveying to him "the lot of land in the town of Beaufort, known and distinguished in the plan of the said town as number 111."
      The defendant offered in evidence an ordinance of the Commissioners of the town of Beaufort, dated May 1816, that Jonathan Price should survey the town of Beaufort, and make a plat thereof. Also, he offered in evidence a private act of Assembly, entitled "an act to confirm an accurate survey of the town of Beaufort, in the county of Carteret, and for other purposes," which act recites that, "whereas, disputes have arisen concerning the true lines of the streets and lots of the town of Beaufort, in consequence of which the inhabitants have employed Jonathan Price to survey and make an accurate plan of the said town: Be it therefore enacted, and that the lines and plan of the town of Beaufort, as surveyed and established by Jonathan Price, shall hereafter be considered in all cases as the lines and plan of said town of Beaufort."
      The defendant then offered the plan or map of the town made by Mr. Price, and which was proven and registered in the Register's Office, and filed in that office, whereof the sketch below delineates a sufficient portion to present the question upon which the opinion of the Court proceeds.
      It appears from that map, that lot number one hundred and eleven (111), as represented in the map referred to, does not reach the thoroughfare, but that there is a small gore of land (which is that in controversy), between his Western line and the water. The scales and measurement of lot No. 111, were 50 feet on Front street, 175 on the line of lot 110, and 132 feet, with the line of lot No. 35. (MAD: sketch of Front Street, and lots on Core Sound)
      The defendant proved by James Davis, that, in the year 1817, he was the owner of lot 111, and that the water then encroached upon his lot, and that he then drove down piling along what he conceived to be his Western line, to keep it out, and filled it in. That he had been informed by old citizens of Beaufort, that the channel between Piver's island and the land in controversy, used to be dry at low tides, and that a log was put across the same, for persons to walk over, and that the dogs used to cross the same in going to hunt on the island, and that, in his day, a pilot-boat could not turn about in the channel; but that, at this time, the channel was between fifty and a hundred yards wide, with a sufficient depth of water to admit vessels and steamboats of the largest size to navigate.
      Defendant also proved, by one Joel H. Davis, who is the son of the foregoing witness, that he lived with his father on the lot No. 111; that his father built a house on it, and that the ordinary high water would come up to the edge of the piazza of the house on this lot; and that, West of the house, there was a dry sand shoal for fifty yards; that a storm had cut open the channel, and that the same gave away and cut away the shore, and that the water ebbed fifty feet West of his father's piling.
      He also proved by one Whitehurst, that he first knew the land in controversy, in 1811, and that there is more land there now than was in 1811. The possession of the defendant, of lot 111, had been continuous in him, and those under whom he claimed, since 1817. He insisted that this survey by Price, and its recognition by the act of Assembly, with the subsequent deeds, amounted to evidence of title in him, and that it, with the testimony of the witnesses, showed that the line was co-termining with the water mark, and that the strip in question, being by gradual accretion, belonged to him.
      It was insisted, on the part of the plaintiff, that the lessors of the plaintiff were not only entitled to recover the premises in dispute, but that their title included all the land between the high water and low water mark; that the deed of the defendant, not calling for the water or land, he was confined to the mathematical line, and that this was a question of law.
      The Court was of opinion, and instructed the jury, that where the land in the town of Beaufort was bounded by the water of the harbor, the margin made by the ordinary high tide was the true boundary; the space alternately covered and left bare by the flux and reflux of the tides, not being the subject of entry in North Carolina. He further instructed them, that, in relation to the subject of a water boundary, they were to fix the boundary on the land West of and adjacent to lot 111, at the time it was laid off and sold; and if the water boundary was identical with the mathematical boundary of the lot called for in the plan of the town, then additions made to the land by gradual accretions, through the action of the winds and tides, belong to the lot and owner of it. Under these and other instructions, not excepted to, the jury found a verdict for the defendant.
      The lessors of plaintiff moved for a rule, etc., which was granted and discharged, and plaintiff appealed.
      (opinion) BATTLE, J. It cannot be doubted, we think, that the defendant claimed under the lessors of the plaintiff. His lot is described in his own title deeds, to be "that lot of land situated in the old town of Beaufort, and distinguished in the plan of said town, by No. 111, (except forty-two feet on the North part,)" &c., and it does not appear that the lot had ever been claimed, otherwise than under the Commissioners to whom the two hundred acres of land upon which the old town was, had been conveyed, for the purpose of being laid off into lots, and sold. The defendant then was estopped to deny their title, and the only question was, whether the Western limit of his lot was the mathematical line from C to A? Or was the line of high water mark, between the main land and Piver's island? The defendant contends for the latter line, as his true boundary, alleging, that, when the lot was originally laid off and sold, his Western line, though not calling for the thoroughfare, was in fact co-terminous with the high water mark of it, and he was, therefore, according to a well settled principle of law, entitled to the gradual accretion or alluvion made by the recession of the water. Were the allegations supported by the proof, an interesting question would arise, whether the doctrine of alluvion applies to any case where a water boundary is not called for, though the course and distance, called for, may have been co-terminous with it? We do not feel at liberty to decide the question, because we are clearly of opinion that the evidence given on the part of the defendant, does not raise it. That evidence consists of the map of the survey of the town of Beaufort, made by Jonathan Price, in the year 1816, and the testimony of James Davis, a former owner of the lot, and his son Joel H. Davis. Price's map shows that the water of the thoroughfare, between the main land and Piver's island, was, in the year 1816, nearly fifty feet West of the mathematical line from C to A. That line, then, was at that time, so far as the map proves anything, the Western boundary of the defendant's lot, No. 111. The testimony of the Messrs. Davis is not very explicit, but supposing it to be established that, in the year 1817, the earliest time to which it seems to refer, the water of the thoroughfare encroached upon the land, so as to come up to and be co-terminous with the line from C to A, it certainly could not have the extraordinary effect of attaching to the lot in question the right of alluvion, which it had never had before. That proposition was not even contended for in argument.
      The charge of his Honor applied to the condition of the Western boundary, as it existed when the lot was laid off and sold, and we are unable to find in the bill of exceptions the slightest proof that, at any time prior to the year 1817 the mathematical line, from C to A, was co-terminous with the water mark, high or low, of the thoroughfare. His Honor ought, therefore, to have instructed the jury, that there was no evidence on which to raise the question of alluvion in favor of the defendants, and that, consequently, he was to be confined to the mathematical line, from C to A, as his Western boundary. For this error of the Court, in submitting a material fact in the cause to the jury, without any evidence to support it, the judgment must be reversed, and a venire de novo awarded.
      Judgment reversed, and a venire de novo.
 

"Reports of cases at law argued and determined in the Supreme Court of North Carolina, from December term, 1853, to August term, 1854, both inclusive" by Hamilton C. Jones (spine title "No. Carolina Reports [Vol.] 46 - Jones' Law); Vol.46, pgs.239 to 243 (California State Law Library, Sacramento, 1/2004)
      DOE on the Demise of the COMMISSIONERS OF BEAUFORT vs. THOMAS DUNCAN, et. al; Supreme Court of North Carolina, Raleigh; 46 N.C. 239; 1 Jones Law 239; December, 1853, Decided.
      This was an action of Ejectment, tried before his Honor Judge MANLY, at Spring Term, 1853, of Carteret Superior Court. The subject matter of this action is the strip of land lying between Front street, in the town of Beaufort, and the water of the harbor south of that street, and designated by the letters a, b, c, d, e. (See the diagram in the preceding case.) (MAD: pg.234)
      The leading facts of the case are set forth in the case of DOE ON DEM OF THE COMMISSIONERS OF BEAUFORT v. THOS. DUNCAN, decided at this term. The defendants, Duncan and Thomas, had had more than seven years possession of the sections lying across Front street, opposite the second lots, which are those marked in the diagram at 111 and 25. The other defendants are the owners of the lots between 111 and 25, but they did not have seven years possession of the land in question opposite their lots.
      The defendants insisted upon certain defects in the title of the lessors of the plaintiff, which they pointed out in the bill of exceptions; but, as this Court has put the case on the ground of estoppel, it is not necessary to state them.
      They further contended that by the ordinance of 1782, (which see recited in the Opinion of the Court, following,) the sections in question were conveyed to the defendants; at all events, it was a color of title, and the defendants, Duncan and Thomas, had acquired title under it by their adverse possession. This case was submitted upon the facts as here stated, agreed upon by the counsel upon both sides; and, upon consideration thereof, his Honor gave judgment for the defendants, Duncan and Thomas, and against the other defendants; from which plaintiffs appealed.
      (Opinion) BATTLE, J. In the case of the same lessors of the plaintiff against Thomas Duncan alone, decided at the present term, we have shown that the owners of lots in the town of Beaufort, who do not set up title to them in another manner, must claim under the commissioners; the lessors of the plaintiff, therefore, are estopped to deny their title. Neither of the defendants, in this case, pretends that he has acquired title otherwise than from the lessors of the plaintiff, and the only question will be, whether either of them has acquired a good title from them.
      The defendants contend that they have acquired such title by force of the ordinance passed by the commissioners of Beaufort in 1782, or by the force of that ordinance coupled with an adverse possession for seven years, of the small parcels or strips of land mentioned in it.
      The ordinance is in the following words: "Ordered that, for the future, whatever small strips of land are to be found between the outward lines of Front Street and the water, shall be the property of the person owning the front lot on the opposite side of the street."
      It is very certain that this ordinance could not operate as a deed to pass the title, proprio vigore, for the want, among other things, of the seal of the grantors, and of a consideration from the grantees, even supposing them to be properly designated. But the counsel for the defendants contends that the ordinance operated at least as color of title; so that seven years adverse possession under it would perfect their title. To constitute color of title, there must be some written document of title professing to pass the land, and one not so obviously defective that it could not have misled a man of ordinary capacity.
      Viewing the ordinance in the light of a conveyance, we think it so obviously defective, that it could not have misled a man of ordinary capacity. Besides the want of a seal and a consideration above mentioned, it is altogether informal and does not appear ever to have been delivered to the pretended donees. The last is a decisive and fatal objection, without adverting to any others, because delivery is essential to give effect to any instrument of conveyance inter vivos, and must, in the very nature of things, be as necessary where the instrument is to operate only as color of title, as when it is to convey a complete title. This disposes of the defence set up by the defendant Thomas. But the counsel for the defendant, Duncan, contends for him, that the evidence, though not color of title, had the effect at least of extending the boundaries of his lot, number 111, to the water, and that then the deed from Howland to him, and his possessions for seven years under it, gave him a good title to the parcel of land which he claimed. This makes it necessary to consider whether the ordinance had any effect, and if it did, what it was. It was certainly intended to have some effect, and if there is any which it can have, the law will, to that extent, sustain it. We have decided, that it cannot operate as a conveyance inter vivos, either perfect or defective. It cannot, therefore, convey even an incorporeal hereditament, as, for instance, the easement of a right of way over the small strips of land mentioned in it. The only other effect it could have, would be to give a license to the owners of lots on Front street, to use those strips of land for such purposes as they might think necessary. Supposing, then, it was a license, it could not pass as such under Howland's deed to Duncan, so as to give him anything like a property in the land, or an easement on the land, but it remained as it was before, a mere license to use the land, without being liable tobe sued as a trespasser, until it should be revoked. The deed of Howland, under which the defendant Duncan claimed, conveyed nothing, therefore, upon which his seven years possession could operate to give him title. As a license, it was revoked by the repeal of the ordinance in 1817, and the defendant was notified in writing to surrender the possession before the suit was commenced. The defence set up by the defendant Duncan thus fails also; which entitles the lessors of the plaintiff to have the judgment in favor of the defendants Thomas and Duncan reversed, and a new trial granted. In discussing and deciding the cause, we have not found it necessary to consider particularly the arguments of the learned counsel in relation to the nature and rights of a seaport town, nor whether such town or an individual citizen of it has a right, without a grant, under legislative authority, to erect wharfs into the sea, as an incident to the ownership of the soil adjacent to shore, to wit: the soil on which the sea ebbs and flows, between high and low water mark. It may be well for those who are interested in the question, to satisfy themselves in relation to it before incurring the expense of costly works, to which, at last, they may have no title. They will find the subject fully and ably treated of in the recent work of Woolrych, on the Law of Waters, (68 vol. of the Law Library.)
      Venire de novo awarded. Judgment reversed.
 

"Cases Argued and Decided in The Supreme Court of the United States; December terms 1865-66-67; Book XVIII; United States Supreme Court Reports Vols. 70, 71, 72, 73" by Stephen K. Williams; Vol.18 Lawyer's Edition pgs.135 to 137; Vol.70 U.S. pgs.768 to 774 (El Dorado Co. CA Law Library 12/2003)
      "The Brig HERALD and cargo, WILLIAM FOLKER, Claimant, on behalf of DAVID HUNTLEY & Co. and WILLIAM WILLIAMS, Claimants of part of cargo, Appts.; Supreme Court of the United States; 70 U.S. 768; 18 L. Ed. 135; 3 Wall. 768; February 5, 1866, Decided; December 1865 Term. (MAD: see Carteret Co. NC)
      Appeal from a decree of the Circuit Court at Philadelphia condemning the Herald and cargo as prize of war, for breach of blockade in an attempted exit from Beaufort, North Carolina; in part as enemy's property, &c. The case was thus: On the 27th April, 1861, President Lincoln, reciting the insurrectionary action which had been for some time going on in the South, and the blockade which he had, on the 19th previous, announced of ports of South Carolina, &c.; reciting also insurrection in North Carolina and Virginia, proclaimed that "An efficient blockade of the ports of those States WILL also be established." (part omitted here)
      In this state of public announcements, emanating as mentioned, the "Herald," a British built, and originally a whooly British owned vessel, arrived at Boston on the 20th May, 1861. She carried a British register and a British flag. A portion of her was owned, however, by De Wolf, a merchant of New York. This interest, acquired in 1854, was never registered, nor was it evidenced by any proprietary document.
      On May 24, 1861, while lying in Boston harbor, the vessel was, as alleged, chartered, through the master, to a Mr. Williams, a citizen of the United States and a resident merchant of New York, for a voyage from Boston to Beaufort, and thence to Liverpool. There copies of the charter appear to have been executed by the master.
      Having effected this charter with Williams at New York, the master returned to Boston, and cleared his vessel at the custom-house there for Turk's Island. "The reasons why I cleared for Turk's Island," said the master after capture, "were, that I did not wish my crew to know that I intended to go to a Southern port; and I also designed, in case I found Beaufort blockaded, to go next to Turk's Island for a cargo."
      With this clearance on board, the "Herlad," on the 25th of May, set sail from Boston, without cargo, and arrived at Beaufort very early on the morning of the 9th of June. The master did not go in on arriving. He gave this ascount:
      "The wind being then off shore, I hauled the brig up by the wind and fetched in close to the land, about twenty miles to the southward of Beaufort harbor, and then I tacked and stood off and on all that, the ninth day of June, till about seven or eight o'clock P.M., when and because the wind was ahead, and the lights at the entrance of the harbor being out, I anchored about seven miles to the southward of the entrance to Beaufort harbor, where I remained till about half-past one o'clock on the next morning, when, the wind being more favorable, I got under way and stood up towards Beaufort harbor; and on my way up, the morning being dark, I ran aground. I got off again, and proceeded up towards the harbor till daylight. Soon after I hove to, and set the English ensign at the fore as the signal for a pilot, who, in about half an hour, came alongside, and of whom I then asked if the port was or had been blockaded; and he answered me that it had not been and was not, and that no vessel of war had been seen off that port."
      He immediately reported his arrival to a Mr. Charles Parmlee, of Goldsboro, North Carolina, and delivered to him a sealed letter which he had received in New York from Mr. Williams, the charterer. Its contents could only be inferred by the court. Under the direction of Mr. Parmlee and his brother a cargo consisting wholly of the staples of North Carolina -- turpentine, tar, rosin, tobacco, &c. -- was shipped; a portion of it consigned by Parmlee, as "agent," to the consignees of the vessel at Liverpool, and the rest by various shippers of Newbern, Wilmington, Beaufort, and Petersburg, places in North Carolina then the war against the United States, to Fraser, Trenholm & Co., and W.A. and G. Maxwell & Co., of Liverpool; firms, the former by distinction, in close and active complicity with the rebel enemies of the United States.
      The vessel remained at Beaufort about a month, taking in a cargo there, and at Morehead City, and meeting some opposition, as the captain testified, from the civil and military persons then in control, and who, he stated, supposed that the cargo might belong to merchants in the North, and contemplated a seizure of it. He sailed for Liverpool July 14th, got fairly out to sea -- a hundred and forty-five miles from Beaufort -- testifying that it was not till then that "he saw or heard of any blockade or blockading vessel." He then heard of it; being captured. He had no copy of the charter aboard. On this examination in preparatorio, while saying that he "had seen no blockade yet," he added: "About three weeks before I came out of Beaufort I saw what I supposed to be a man-of-war, from the tops of the buildings. I saw two spars, but no hull, with a glass, and saw she was standing to the northward, almost a week before sailing. The British ship Gladiator came near the bar. These are all the men-of-war I saw before the capture."
      A ship-hand, Homer, said that he knew no cause why the vessel had been captured, other than that she came out of a Southern port. Interrogated as to what vessels he had seen, and what notice was given, he added: "During the time we were lying at Beaufort, I saw three different men-of-war off the harbor; and during the last two weeks we were there I saw a man-of-war as often as once in three days.No notice or warning, as far as I know, was given to the captured vessel."
      The mate of the vessel testified -- "I suppose we were captured because we sailed from a Southern port; but we saw no blockading force off Beaufort. It was reported three times from Fort Macon that a man-of-war was off the harbor, but I only saw one while we were lying there."
      A letter, from which what follows are extracts, found on the Herald, gave some information on the same matter: "BEAUFORT, July 11, 1861. MESSRS. FRASER, TRENHOLM & CO., Liverpool:
      GENTLEMEN: We take the liberty of addressing you these lines, as our country has become divided into North and South, and we, as full-blooded Southerners, shall carry this matter out.
      Formerly our business has been done principally by New York merchants. We have dealt with them and owned vessels together, and have no fault to find with them directly, only they are North and we are South. Circumstances have changed, and we, as well as a great many of our Southern friends, intend to change our business.
      We are carrying on the distillery business, and buying spirits, and hope soon to have the chance of making you a good shipment from this place. T. Thomas and ourselves have on board the Herald ninety casks of spirits shipped to you.
      There is a great chance here for any English vessel that comes and can get in to this place clear of the Federal men-of-war. When they fall in with an English vessel bound to a Southern port they only order them off, and not let them enter.There is no blockade at this place that can be considered as such up to this time. There has been but one steamer, off this place, near enough to see the hull, and no time near enough to tell what she was by her colors. There has been a smoke seen off in the offing at one tiem, and it was thought to be one of the blockading squadron; can't say whether it was one or not. I see no difficulty for your vessels; if they should be ordered off, they could go elsewhere, and if they get in they can get a splendid freight.
      Very respectfully, yours, &c., THOMAS DUNCAN & CO.
      The libel demanded the forfeiture of the brig and cargo as prize of war. The master prayed restoration of the vessel in behalf of six alleged owners, all British subjects, of whom five were domiciled in Nova Scotia, and one in New York. He also prayed restitution of a part of the cargo, which consisted wholly of turpentine, tar, rosin, and tobacco, products of North Carolina or Virginia, in behalf of owners living in North Carolina; and of another part, in behalf of persons believed to have an interest, residing in New York, South Carolina, and in England. Restitution of the rest of the cargo was claimed by Williams, already mentioned as a merchant, native and resident of New York. No proof of ownership of cargo was made, except in behalf of Williams and the parties living in North Carolina.
      Condemned, as already mentioned, by Grier, J., the case was now here for review.
      The CHIEF JUSTICE delivered the opinions of the court. The principal question in this case is, was the brig lawful prize? She was a neutral vessel, and the answer to the question must depend on her employment at the time of capture.
      The actual establishment of the effective blockade of the ports of North Carolina, in pursuance of the President's proclamation of the 27th of April, 1861, was notified by Commodore Prendergast on the 30th April; and it is a matter of history that the notification, as well as the proclamation, became at once well known throughout the country. It is impossible to believe that the master of the Herald, at Boston, on the 22d May, could have been ignorant of facts so notorious. His conduct on arrival near Beaufort strongly indicates his apprehension of capture. The lights at the entrance of the harbor had been destroyed by the insurgents, and yet, though arriving in the morning of the 9th, he lay off and on, some twenty miles south, all that day, and went in during the succeeding night.
      We know of no case of prize in which a captured vessel has been restored under such circumstances; but we need not rest the decision of this case upon this evidence of attempt to enter a blockaded port.
      The vessel, when once within the harbor, proceeded to take in a cargo. Some difficulties were encountered from the action of the rebel military authorities, and from the disturbed condition of the country; but the lading was at length completed, and the vessel sailed, as already stated.
      During the month which elapsed from arrival till departure, the effectiveness and stringency of the blockade were materially increased. The master, it is true, asserts that he still remained ignorant of its existence; but the evidence shows that it was the common topic of conversaion in Beaufort and Morehead City; and he says himself that, while he was taking in cargo, about three weeks before sailing, he saw from the tops of the buildings, with a glass, a man-of-war off the harbor. It remained there, for he saw the same vessel about one week before sailing. Another witness, a hand on the brig, says, during the time the vessel was lying at Beaufort, he saw three different men-of-war off the harbor; and during the last two weeks he saws a man-of-war as often as once in three days. A letter from one of the shippers of the cargo, found on the brig, informs his correspondent that "a smoke had been seen off in the offing at one time, and it was thought to be one of the blockading squadron."
      It would be difficult to make more conclusive proof of the existence of the blockade, or of notice of the fact to the mater of the captured vessel.
      The cargo was shipped to be conveyed from the port by this brig, and was in the same offence.
      The facts of the case supply other grounds of condemnation. The shares of the vessel owned in New York, and the portions of the cargo belonging to Williams, of New York, might to condemned for trading with the enemy; and other portions of the cargo might be condemned as enemy's property; but it is enough that vessel and cargo were equally involved in the attempt to violate the blockade. Both were rightfully captured. DECREE AFFIRMED.
 

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