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Property Owners Win Victory In Marshland Case

The News & Observer Raleigh, NC

Copyright 1995

Saturday, December 9, 1995


Property owners win victory in marshland case

Joseph Neff
Staff Writer

The state Supreme Court handed a victory to coastal property
owners Friday, ruling that owners of submerged lands fully control
their property except for waters where boats can go.

The ruling, which may affect up to 30,000 acres of tidal
marshland, will allow property owners to restrict trespassers and
control shellfish beds. But the ruling will not open the door to
development of the marshland, which is restricted by state and
federal laws.

In other rulings, the court refused to overturn a $7 million
verdict against Charter Hospital in Greensboro. Charter had
discharged a 16-year-old boy with depression and suicidal impulses
when the boy’s insurance ran out, and he committed suicide two weeks
later. And the court also said police can seize and search trash
once it has been taken off someone’s property by trash collectors.

In the marshland case, five property owners in New Hanover County
urged the Supreme Court to affirm their full ownership of the
marshes, as a Superior Court judge did at trial last year.

The five property owners held title to wetlands originally bought
from the State Board of Education. In the 1920s and 1930s, the state
board sold about large tracts of salt marsh to raise money for local
school systems.

The state argued that the public was entitled to full access to
all navigable waters, and argued for this broad definition: Any water
is navigable if it is subject to the ebb and flow of the tides.

That would have meant that any swamp, marsh or grassland where
water fluctuates with the tide would be public land.

Writing for a unanimous court, Justice Burley Mitchell disagreed.
The standard is actual navigability, Mitchell wrote – whether one can
actually pilot a boat on the water in question, “including small
craft used for pleasure.”

That presumably means that if a fisherman or boater can go there
in a canoe or jet ski, it’s a public waterway.

Experts said that the ruling meant that fewer people would have
access to marshlands.

“North Carolina has a very large area of coastal sounds, and there
are a lot of submerged lands claimed,” said Joe Kalo, a law professor
at UNC-Chapel Hill. Kalo, however, said the ruling may end up being
less than favorable to the landowners because courts will determine
each claim on a case-by-case basis. The five landowners in this case
will return to court for a judge to decide whether their waters are

“They may end up losing the war because they don’t know whether
their land is navigable in fact,” Kalo said.

In the other cases:

– Joe Muse was a patient at Charter Hospital in Winston-Salem in
1986. He was released when his insurance benefits had run out, and
he killed himself 17 days later. His family presented evidence at
trial that Muse was in worse shape upon discharge than when he
arrived at the hospital.

The jury awarded $1 million in compensatory damages to make up for
the boy’s future earnings. The jury also ordered Charter Hospital of
Winston-Salem to pay $2 million as punishment, and Charter Medical
Corp., the parent company, to pay $4 million.

“Charter sent him home, not because he was better, but because his
insurance ran out,” said Wade Byrd, attorney for the Muse family. “They didn’t know how sick their child was, and they took him home
and he killed himself.”

The court didn’t overturn the verdict, but ruled that it was wrong
to assess separate damages against the hospital and its parent
company. The case will return to Superior Court so a jury can
determine the amount of punitive damages.

In a similar case from Raleigh, Charter Northridge Hospital agreed
in 1992 to pay $3 million to the family of a man who shot and killed
himself in 1989, one day after the psychiatric hospital discharged
him when his insurance ran out.

– The court ruled that police can seize garbage from trash
trucks as part of criminal investigations.

Acting on a request from Winston-Salem police, a garbageman picked
up Allen Hauser’s trash and turned the trash bags over to police, who
found cocaine residue. Police used this as a basis for obtaining a
search warrant and found a pound of cocaine in Hauser’s home. The
Court of Appeals ruled that police violated Hauser’s right to privacy
by diverting his garbage.

The Supreme Court disagreed, saying police did not trespass on his
property or rifle through his garbage cans, and therefore did not
violate his privacy.

“Defendant Hauser’s garbage was picked up by the regular garbage
collector, in the usual manner and on the scheduled collection day,”
Justice I. Beverly Lake wrote for the court. “No one other than
those authorized by the defendant entered the defendant’s property
and no unusual procedures were followed other than to keep
defendant’s garbage separate.”