had as good opportunity to know whether the front section was moving or not, when the intestate was between the cars, as he had with regard to the rear section; and the jury could well infer from this evidence either that the front section was not moving at the time, or that the motion was so imperceptible as not to be observed by Russell and the intestate.

Without commenting upon the evidence in detail, we think that the separation of the cars at that part of the train where they were uncoupled, and the distance between the cars 20 and 21 when the intestate stepped between them "to put the air on," and the testimony of the engineer that the brakes were stuck 10 or 12 cars from the engine (there being 30 or 40 cars in the train), and that he had to go forward to take up the slack, in order to come back again and move the cars so as to loosen the pin, was at least some evidence upon which it might reasonably be argued, and from which the jury might fairly conclude, that the rear car of the front section was standing still at the time the intestate went between the cars.

The question whether the front section of the train had stopped was submitted to the jury in the charge upon the first issue, to which no exception was taken; and the jury, by answering the first issue "Yes," necessarily found that the front section was not moving at the time the intestate stepped between the cars. An affirmative answer to the first issue would therefore necessarily call for a negative answer to the second.

The engineer knew that he was required to stop at the switch for the purpose of cutting off the rear section of his train so that it could be transferred to the side track, for the intestate, he says, had told him so at Newell's; and there was evidence tending to show that, after the pin had been drawn and the cars uncoupled, the intestate signaled him to go forward, and, instead of doing so, he moved the front section of the train backward. Two inferences might have been made by the jury from this evidence: First, that the engineer, knowing full well what was to be done, did not move back any farther than was necessary to loosen the pin, or "ease up on it," and then stopped, as he should have done; and, second, that the intestate, who had given him the signal to go forward, had the right to suppose that he would do so, and was not required to anticipate his negligence in disregarding the signal, if he saw it, or to presume that he did not see it; and, this being so, the intestate might well have thought, as a prudent man, that he could go between the cars with perfect safety.

The question upon the second issue was not whether there was any evidence that the rear ear of the front section had stopped, but whether there was any evidence that it was

moving at the time the intestate attempted to set the brakes on the rear section; and, unless the evidence was sufficient to satisfy the jury that the car was moving, the defendant failed, of course, to sustain its contention, and was not entitled to a favorable finding upon that issue, without reference to the question whether the plaintiff offered any evidence to show that it had stopped. This is clear, upon reason and authority.

Upon a careful review of the case, we are of the opinion that the state of the evidence was such as to fully justify the charge of the court and the finding of the jury upon the second issue. The objection of the defendant cannot be sustained, even if it had been made before verdict. Sutton v. Walters, 118 N. C. 495, 24 S. E. 357; Holden v. Strickland, 116 N. C. 185, 21 S. E. 684.

We see no merit in the defendant's motion to set aside the verdict because the juror Brown was asleep during the trial. The evidence whether the juror was asleep was conflicting, and, when the court denied the motion, it must be presumed that the facts were found in accordance with the affidavit of the juror that he was not asleep, or at least that the facts were so found as to warrant the decision of the court. State v. Taylor, 118 N. C. 1262, 24 S. E. 526; Albertson v. Terry, 108 N. C. 75, 12 S. E. 892. This court cannot pass upon the affidavits, but, in order to entitle the moving party to a review here of the ruling below, the facts must be found and spread upon the record, and the court must always find the facts when requested to do so. Smith v. Whitten, 117 N. C. 389, 23 S. E. 320; Albertson v. Terry, supra. It is well settled that this court cannot find facts or review them, as a general rule, but can only pass upon "matters of law or legal inference." Love v. Moody, 68 N. C. 200; State v. Best, 111 N. C. 643, 15 S. E. 930. Motions of this sort must be made in apt time. The knowledge of the alleged fact upon which the defendant bases its motion was acquired during the trial, and before a verdict was rendered, and the matter should at the earliest opportunity have been brought to the attention of the court. It has been said by this court that, after a defendant has taken chances for a favorable verdict, the purposes of justice are not subserved by listening too readily to objections not taken in apt time. State v. Perkins. 66 N. C. 128; Spicer v. Fulghum, 67 N. C. 18. There was a way in which the defendant could have the juror aroused, if he was asleep, without serious, if any, prejudice to its interest, and a proper reminder or warning from the court would probably have been sufficient to keep him awake until the end of the trial. The motion, under the circumstances of this case, was within the sound discretion of the court, and we do not see that it was improperly exercised. State v. Miller, 18 N. C. 500; State v. Fuller, 114 N. C. 885, 19 S. E. 797.

We have been unable to discover any error In the rulings of the court below. Judgment affirmed.

(132 N. C. 517) SHEPARD'S POINT LAND CO. v. ATLANTIC HOTEL.

(Supreme Court of North Carolina. May 5, 1903.)

TITLE OF

NAVIGABLE WATERS HARBORS
-
STATE-GRANT BY STATE-TI-
TLE OF GRANTEE.

1. The policy of the state, as evidenced by the course of legislation (Entry Law, Acts 1777, c. 114, § 15; revisal of 1836; Laws 1846, c. 36), was to retain the title of navigable waters in trust for the people. Code, 8 2751 (Acts 1854-55, p. 45, c. 21), provided that lands covered by navigable waters should be subject to entry by riparian proprietors "for the purpose of erecting wharves on the side of deep waters next to their lauds." The state in 1856 granted to certain riparian owners on a harbor a lot in the harbor in front of their lands between high-water mark and deep water. Held that, in view of the course of legislation, and the provision of the Code that such land should be subject to entry for the "purpose of erecting wharves," the grantees took only an easement as riparian owners to erect wharves, etc., and took no title to the bed of the harbor.

Appeal from Superior Court, Carteret County; Geo. H. Brown, Judge.

Action by the Shepard's Point Land Company against Atlantic Hotel. From a judgment for plaintiff, defendant appeals. Reversed.

C. L. Abernethy, Simmons & Ward, and Armistead, Jones & Son, for appellant. W. W. Clark and Lindsay Patterson, for appellee.

CONNOR, J. The plaintiff brings this action for recovery of possession of a tract of land described in the complaint as “lying and being situate in the county of Carteret, in Morehead City, adjoining the square on which the hotel building of the defendant is located, and known and described as 'Square No. 83' in the plan of Morehead City." It alleges that the defendant is in possession of the above-described lot, "upon which there has been erected certain walks, wharves, bathhouses, pavilion, etc., and that such possession is unlawful and wrongful."

The defendant denies that the plaintiff is the owner of the property described in the complaint, and denies that it is in possession thereof, except that it has a wharf, walkway, and two bathhouses leading from the rear of said hotel over and into the waters of Bogue Sound. It avers "that Bogue Sound is an arm of the sea, navigable for sea vessels and other ships, and the said hotel is about a mile from the Atlantic Ocean; the tide from said ocean ebbs and flows daily in sald sound and upon the shore whereon the said hotel is located, and the space between the said hotel and bathhouses and where the walkway and wharf are situated is covered by the waters of said sound, and the defendant is advised that the plaintiff has no title thereto."

The plaintiff claims the land, which is covered by water, described in the complaint,

and known in the plan and on the map of Morehead City as "Square No. 83," under the following chain of title, to wit: Grant from the state to John M. Morehead and W. L. Arendell, bearing date May 2, 1856. The grant is made to said grantees, "owners and riparian proprietors of the lands known as the 'Shepard's Point Lands' on Beaufort Harbor." It includes the tract or parcel of land lying around Shepard's Point lands, and between high-water mark and the deep water of Bogue Sound, Newport river, and Calico creek. The description in the grant covers 502 acres of land, and surrounds the lands known as the "Shepard's Point Lands," which by the charter of Morehead City embraces the entire water front of the said city, and runs out from high-water mark on the shores of said lands to the deep water of said sound, river, and creek. The Shepard's Point Land Company was chartered by chapter 136, p. 164, Laws 1856-57. The charter was extended by chapter 50, p. 100, Acts 1887. The town of Morehead City was incorporated by chapter 172, p. 203, Laws 1860-61. Section 6 provided "that the corporate limits of said city shall embrace the entire plan of the city of Morehead as published by the Shepard's Point Land Company, and from the terminus of the Atlantic & North Carolina Railroad Company to Fifteenth street."

The plaintiff introduced deeds tending to show that at the time of issuing the grant, May 24, 1856, the grantees were the owners of square No. 1, and that said square was abutting square No. 83, the latter being the water front covered by water and extending out into Bogue Sound. The plaintiff offered deeds tending to show that the defendant company had acquired title by direct chain from John M. Morehead and W. H. Arendell through the plaintiff, who owned squares No. 1 and 83 at the time of the conveyance of square No. 1, upon which the Atlantic Hotel is located. The plaintiff introduced a deed from the Shepard's Point Land Company to John M. Morehead, dated August 19, 1859, conveying square No. 1, "bounded on the north by Arendell street, on the east by Third street, on the south by Evans street, and on the west by Fourth street." The plaintiff introduced chain of title to square No. 1 from John M. Morehead to the defendant, and also introduced a map of Morehead City. It will appear by reference to that map that Evans street for a considerable distance, and especially between squares No. 1 and No. 83, "is covered by the tide water at high tide, and has never been opened between squares Nos. 1 and 83, and is not used as a public street."

W. L. Arendell, a witness for the plaintiff, testified: "The hotel is on square No. 1, and is known as the 'Atlantic Hotel.' The water front is square No. 83, and is covered by water. At low tide a small portion of it is not covered by water. The wharves and

bathhouses on square 83 were built in the latter part of 1850 by the Morehead City Hotel Company, under whom the defendant claims. There are two wharves or piers. They are about 8 feet wide, and one is about 200 feet long, and is connected with the hotel, and extends out into Bogue Sound; about 50 feet from the end of it is the gentlemen's bathhouse. The other pier extends out into the sound about 80 feet, and is connected with the other wing of the hotel, and at the end of it is the ladies' bathhouse. These wharves and bathhouses are in the waters of Bogue Sound, and on square 83. The depth of water at the end of the long pier is from 6 to 8 feet, sometimes more, sometimes less, according to the tide. The depth of the water at the end of the ladies' pier is about 5 feet, varying according to the tide. The tide water at high tide washes up to square No. 1, and within a few inches of the brick foundation of two of the wings of the hotel. Square No. 83 is south of square No. 1, and is generally covered by water. There was a street leading off, upon the plan of said town, between square 83 and square 1. This street is called 'Evans Street,' and is 60 feet wide, but it has not been opened between squares 1 and 83, and is not used as a public street of Morehead City. At high tide it would be very nearly covered by water. The grant to John M. Morehead and W. H. Arendell covers square 83. Evans street was laid off on the plan of the town after the issuing of said grant. Square 83 is always covered by the tide at any ordinary high tide, and the greater part of it is covered at low tide. The ocean tide comes in at the inlet, which is about two miles off, and ebbs and flows over square 83; this square is a part of Bogue Sound. Boats sail from the ocean and on the ocean and back to the hotel, and sail over and about square 83, and tie up and anchor all along the long pier from its end up to 75 or 100 feet towards the hotel, according to the state of the tide. Square 83 covers the deepest part of that part of Bogue Sound, and that part is connected with the balance of the sound by navigable waters for small vessels, both to the eastward and to the westward. The Shepard's Point Land Company and Morehead never did build any wharves or piers on square 83."

His honor submitted to the jury the following issues: "(1) Is the plaintiff the owner and entitled to the possession of the land described in the complaint as square 83? (2) Is the defendant in possession of any part thereof?" The court instructed the jury that if they believed the evidence they should answer the first issue "yes," and the second issue "yes," and the defendant excepted. It is agreed that the court answer the issues accordingly. Judgment was rendered thereupon, and the defendant appealed.

The plaintiff's title and right to recover are dependent upon the construction of section 2751 of the Code, being chapter 21, p. 45,

Acts 1854-55, in the following language: All vacant and unappropriated land belong. ing to the state shall be subject to entry except lands covered by navigable streams, provided that persons owning lands on any navigable sound, river, creek or arm of the sea, for the purpose of erecting wharves on the side of the deep waters thereof next to their lands, may make entries of the lands covered by water adjacent to their own as far as deep water of such sound, river, creek or arm of the sea, and obtain title as in other cases. But persons making such entries shall be confined to straight lines including only the fronts of their own tracts, and shall in no respect obstruct or impair navigation. And when any such entry shall be made in front of the lands of any incorporated town, the town corporation shall regulate the line of deep water to which entry shall be made." The question presented for decision is of great importance, and by no means free from difficulty. It will be well, before entering into an examination of the principles and authorities by which we shall be guided in reaching a conclusion, to note the history of the legislation in North Carolina in regard to the control and disposition of our navigable waters. It was held in Tatum v. Sawyer, 9 N. C. 226, that lands covered by navigable waters were not subject to entry under the entry law of 1777, "not by any express prohibition in that act, but, being necessary for public purposes as common highways for the convenience of all, they are fairly presumed not to have been within the intention of the Legislature."

Ruffin, J., in Ward v. Willis, 51 N. C. 183, 72 Am. Dec. 570, said: "It happened, however, that in the revisal of 1836 those parts of the previous act were omitted, and therefore the court felt bound to hold, in Hatfield v. Grimstead, 29 N. C. 139, that entries of land in Currituck Sound were good after it ceased to have a tide or be navigable by reason of the closing of the inlet, or rather of such parts of the sound as frequently were not covered by water. When the omissions of the revisal were discovered in 1846, the Legislature, by an act of that year, chapter 36, revived the provision omitted by enacting that entries of land lying on any navigable water should be surveyed in such manner that the water should form one side of the survey, and the land laid off back from the water, and proceeded further to enact that it should not be lawful to enter land covered by any navigable sound, river, or creek." The court in that case held "that land lying between the high and low water lines of the tide of the ocean or a navigable stream is not subject to private appropriation under the acts authorizing the entry and grant of lands by the state."

This continued to be the law until 1854. when the act, section 2751 of the Code, was enacted. In 1889 (Laws 1889, p. 517, c. 555) this act was amended by adding, after the

word "navigation," the following: "Provided further that no land covered by water shall be subject to entry within 30 feet of any wharf, pier or stand used as a wharf already in existence, or which may hereafter be erected by any person on his own land or land under his control or on an extended line thereof; but land covered by water as aforesaid for the space of 30 feet from the landing place or line of any wharf, pier or stand used as a wharf as aforesaid, shall remain open for the free ingress and egress of said owner and other persons to and from said wharf, pier or stand." By Laws 1891, p. 585, c. 532, the section is so amended as to read: "Lands covered by navigable waters, provided that persons owning lands on any navigable water for the purpose of erecting wharves or fish houses or for fishing in said waters in front of their lands, may make entries of the land covered by said water and obtain title as in other cases, but persons making such entries shall be confined to straight lines, including only the fronts of their own lands, and shall in no case extend a greater distance from the shore than one fifth of the width of the stream, and shall in no respect obstruct or impair navigation provided nothing in this act shall apply to Currituck county."

By the act of 1893, chapter 17, p. 41, section 2751 of the Code is amended by striking out the words, "to which entries may be made," and inserting instead thereof the words, "to which wharves may be built."

It is noted in the plaintiff's brief, and known in connection with the history of the state, that, at or about the time that the act of 1854 was passed, the Atlantic & North Carolina Railroad, having its terminus at what was to be Morehead City, although projected, had not been completed to that point.

The plaintiff's title is dependent upon maintaining three propositions: (1) That the title to navigable waters, sounds, arms of the sea, etc., is vested in the state, and may be granted by the state to private individuals; (2) that by the grant issued to Morehead and Arendell, pursuant to the act of 1854, they became the absolute owners of the soil covered by the navigable waters of Bogue Sound, Newport river, and Calico creek, described in the said grant, and containing 502 acres; and (3) that such title as they acquired passed to and vested in the plaintiff corporation, separate and distinct from its ownership of the soil theretofore granted by the state, upon which is located the town of Morehead City, including the defendant's lot No. 1, upon which is built the Atlantic Hotel, and that its ownership is in no respect dependent upon the use to which the land in controversy is to be put, or its riparian ownership of the shore.

It is abundantly settled by the courts of this state and the United States that after the Revolutionary War the states became the owners of and retained the title to the lands

covered by navigable waters, and that they have the power to grant those lands to private individuals. This has been the wellsettled doctrine in this country since the case of Martin v. Waddell, 16 Pet. 367, 10 L. Ed. 997. "The principle has long been settled in this court that each state owns the beds of all tide waters within its jurisdiction, unless they have been granted away. In like manner, the states own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running." McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248.

Ruffin, J., in Ward v. Willis, supra, says: "It seems thus to be clear that whatever soil is at any time covered by any navigable water in its natural state is deemed to be in the same state as if it were in the bed of the water; in other words, that it is all one whether it be under the channel or the mar gin between the high and low water lines. The same public purposes require that here, as in England, the state should reserve lands in that situation from private appropriation, and, although it may please the Legislature to dispose of that by special grant for the promotion of trade and the growth of a commercial town accessible to vessels, it rationally accounts for the restriction upon the common mode of granting other public lands, and enables us to discover the extent of the restriction imposed, and understand the terms in which it is imposed."

Mr. Justice Field, in Illinois Central Railroad v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018, thus defines the status of lands covered by tide waters: "It is a settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof when that could be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the states. This doctrine has been often announced by this court, and is not questioned by counsel of any of the parties"-citing Pollard's Lessee v. Hagan, 3 How. 212, 11 L. Ed. 565; Weber v. Harbor Com'rs, 18 Wall. 57, 21 L. Ed. 798.

For the purpose of this discussion, we treat the first proposition as settled. There has been, however, some discussion and conflict of opinion in respect to the extent of the right of the state to grant the soil under its navigable waters, held in trust for the use of all of the citizens, to private persons.

Mr. Justice Field, in a very able opinion in the Illinois Central Railroad Case, supra, in discussing the character of the title which the state holds in her navigable waters, uses

the following language: "The question, therefore, to be considered, is whether the Legislature was competent to thus deprive the state of its ownership of the submerged lands in the harbor of Chicago, and of the consequent control of its waters; or, in other words, whether the railroad corporation can hold the lands and control the waters, by the grant, against any future exercise of power over them by the state. That the state holds the title to the lands under Lake Michigan, within its limits, in the same manner that the state holds its title to soil under tide water by the common law, we have already shown, and that title necessarily carries with it control over the waters above them whenever the lands are subjected to use. But it is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States holds in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties. The interest of the people in the navigation of the waters and in commerce over them may be improved in various instances by the erection of wharves, docks, and piers therein, for which purpose the state may grant parcels of the submerged land, and, so long as their disposition is made for such purpose, no valid objection can be made to the grants. It is grants of parcels of land under navigable waters that may afford foundation for wharves, piers, docks, and other structures in the aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power, consistently with the trust to the public, upon which such lands are held by the state. But that is a very different doctrine from the one which would sanction the abdication of the general control of the state over lands under the navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public. The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of

such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled. General language sometimes found in the opinions of the courts, expressive of absolute ownership and control by the state of lands under navigable waters, irrespective of any trust as to their use and disposition, must be read and construed with reference to the special facts of the particular case. A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of navigation and the use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace. So with trusts connected with public property or property of a special character, like lands under navigable waters, they cannot be placed entirely beyond the direction and control of the state. * We cannot, it

is true, cite any authority where a grant of this kind has been held invalid, for we believe that no instance exists where the harbor of a great city and its commerce have been allowed to pass into the control of a private corporation. But the decisions are numerous which declare that such property is held by the state, by virtue of its sovereignty, in trust for the public. The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern to the whole people of the state. The trust with which they are held, therefore, is governmental, and cannot be alienated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or when parcels can be disposed of without detriment to the public interest in the lands and waters remaining." The plaintiff contends that this court has construed section 2751, and that the grantees, Morehead and Arendell, by the grant issued to them pursuant thereto, acquired the absolute ownership of the soil under the water, subject only to the right of navigation by the citizens of the state. If this contention be well founded, it must be conceded that the plaintiff may bring a possessory action and remove the defendant from any occupancy thereof. If the question has been decided by this court, we would feel compelled to follow such decision as a rule of property,