## Facts

- Landowners claimed title to coastal marshlands in New Hanover County, North Carolina, located between the mean high-water and mean low-water marks in the Middle Sound area.
- The marshes were periodically covered by tidal waters; the landowners contended the areas were not practically navigable by boats even at high tide.
- The State Board of Education conveyed the marshlands to private grantees between 1926 and 1945 by deeds purporting to grant the tracts in fee simple; the landowners traced their chains of title to those deeds.
- A 1965 statute required persons claiming beds beneath navigable waters in coastal counties to register claims by January 1, 1970, on pain of forfeiture; the landowners (or predecessors) registered claims that included marshlands and some areas beyond the mean low-water mark.
- The State later asserted that the public trust doctrine barred private ownership of lands beneath “navigable waters,” arguing that tidal influence placed the marshes within public trust waters and that any conveyance could not extinguish public rights absent clear legislative authorization.
- The trial court ruled for the landowners, holding North Carolina applies a navigability-in-fact test (not an ebb-and-flow test) and finding the marshlands nonnavigable because they had not been used by vessels.
- The State appealed directly to the North Carolina Supreme Court.

## Issues

1. What standard determines “navigable waters” for public trust purposes in North Carolina: navigability in fact or an ebb-and-flow (tidal) test?
2. Under the proper standard, what showing is required to treat marshlands between mean high and mean low water as subject to public trust rights?
3. To what extent can the State convey marsh or submerged lands in fee simple free of public trust rights without clear legislative authorization?
4. Whether the trial court made legally adequate findings and applied the correct navigability standard.

## Decision

- The Supreme Court held that North Carolina determines navigability for public trust purposes by navigability in fact, not by tidal influence alone.
- The Court clarified that navigability in fact turns on capability of navigation in the water’s natural condition, including use by small recreational or pleasure craft, not on proof of past or current use.
- The Court vacated the trial court’s judgment and remanded because the trial court improperly treated lack of actual vessel use as dispositive and failed to make sufficiently specific findings applying the capability standard to the tracts.

## Legal Principles

- In North Carolina, “navigable” for public trust purposes means waters that, in their natural condition, are capable of being used for navigation by useful vessels, including pleasure craft.
- The ebb-and-flow of the tide does not, by itself, establish navigability for public trust purposes.
- The public trust doctrine protects public rights in navigable waters and related submerged lands, including navigation and recreation such as swimming, fishing, and hunting.
- State conveyances affecting submerged or marsh lands are construed narrowly; extinguishment of public trust rights requires clear, specific legislative authorization, and courts presume against surrender of public trust interests absent unmistakable intent.
- Private title derived from State deeds may remain subject to public trust rights to the extent the land lies beneath navigable-in-fact waters.

## Conclusion

The court reaffirmed a capability-based, pleasure-craft standard for navigability in public trust cases, rejected tidal influence as determinative, and required tract-specific findings on whether the waters are navigable in fact before resolving the extent to which private title is burdened by public trust rights.


Gwathmey v. State, 342 N.C. 287, 464 S.E.2d 674 (N.C. 1995)