Who owns the new dry beach land at Wrightsville Beach, North Carolina that was created by pumping sand from Banks Channel, after a 1939 special law granted the original beach to the town and a 1985 state lands amendment shifted title to publicly funded raised land to the State?
Plain-English summary
The Town of Wrightsville Beach has been actively rebuilding its shoreline for decades by pumping sand from Banks Channel and depositing it as beach renourishment. After major storms in 1996 overwashed parts of the beach, the Town applied for a Coastal Area Management Act (CAMA) permit to bulldoze sand into a protective berm. The Division of Marine Fisheries asked the AG who owns the resulting beach, in light of a 1939 special legislative grant and a 1985 amendment to NC's State Lands Act.
The 1939 grant. Chapter 246 of the 1939 NC Session Laws was a special legislative grant tailored to Wrightsville Beach. The Town had been restoring eroded shoreline by pumping sand. The 1939 act fixed title to the new land by reference to a "building line" drawn on a professional survey:
- Land restored west of the building line: belongs to the adjacent landowner.
- Land restored east of the building line, down to the low water mark: belongs to the Town of Wrightsville Beach in fee simple, subject to two restrictions:
1. Nothing may be built on that land.
2. It must be kept open as streets/highways for public use, and developed as a public square or park as defined by ordinance. - Reverter clause: if the Town fails to observe these restrictions, the land east of the line reverts to the State.
- Adjacent landowners keep their littoral rights as if they still bordered the Atlantic Ocean.
Public trust rights survived. The 1939 grant did not extinguish public trust rights. NC's public trust doctrine creates a strong presumption that the legislature does not intend to convey lands beneath navigable waters without expressly reserving public trust rights. Gwathmey v. State, 342 N.C. 287 (1995). The 1939 act conveyed in fee simple but with use restrictions that affirmatively protect public access (no structures, kept open as public streets and parks). So public trust rights stayed intact.
The State Lands Act didn't undo the 1939 grant. The State Lands Act of 1959 (N.C.G.S. § 146-1 et seq.) generally prohibits conveying submerged lands in fee. But the State Lands Act was not in force in 1939, so it does not retroactively undo the special legislative grant. Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297 (1970), made the same point about a parallel 1963 Carolina Beach grant: a special legislative grant can override the State Lands Act because the legislature has the power to amend or carve out exceptions to its own statutes.
The 1981 amendment confirmed the grant's effectiveness. Ch. 618 of the 1981 Session Laws amended the 1939 act, replacing "building line" with "property line" and authorizing the Town to set minimum building setback requirements by ordinance. The legislature's choice to amend rather than repeal confirmed the 1939 grant remained good law.
The 1985 amendment changed the rule going forward. Chapter 276 of the 1985 Session Laws (effective May 30, 1985), codified as N.C.G.S. § 146-6(f), added a new rule:
Notwithstanding the other provisions of this section, the title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed projects which involve hydraulic dredging or other deposition of spoil materials or sand vests in the State.
So after May 30, 1985, any beach renourishment funded with public money that raises land above mean high water vests title to that raised land in the State of North Carolina. Privately funded renourishment vests title in the adjacent littoral property owner. Either way, public trust rights apply to the raised land.
The bottom line for Wrightsville Beach. The original 1939 grant gave the Town good title to the strip between the building line and the low water mark. That title was valid. But continuing publicly funded beach renourishment activities after May 30, 1985, including the proposed 1996-storm-recovery beach bulldozing, would have transferred title to any raised land back to the State under § 146-6(f).
Does it matter for the CAMA permit? No. The CAMA permit application can still be processed, even if the Town does not own the renourished beach, as long as the application meets the other Coastal Resources Commission guidelines. Title and permit eligibility are separate questions.
Currency note
This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
NC's beach renourishment funding has shifted toward larger federal-state-local cost-sharing under the Army Corps of Engineers programs. Title questions about renourished beaches continue to arise, particularly after major storms. NC's coastal management statutes have been amended several times since 1998. Anyone analyzing a current Wrightsville Beach title question should pull the current § 146-6(f), the underlying 1939 special grant (as amended in 1981), and any post-1998 court decisions on raised-land title.
Common questions
Q: What is "mean high water"?
A: The average level of high tide over a long observation period. NC uses this as the dividing line between privately ownable upland and state-owned submerged or tidal land. Land "raised above the mean high water mark" by renourishment is new dry beach that was once submerged or tidal.
Q: What is "public trust" doctrine?
A: A common-law doctrine descending from English law and reinforced by NC constitutional provisions. The State holds navigable waters and their bottoms in trust for the public. Public trust rights include navigation, fishing, swimming, hunting, and recreation. Private ownership of submerged lands is limited by these public rights.
Q: Why did the 1939 act use a "building line" rather than the high water mark?
A: Because Wrightsville Beach was actively renourishing the shore, and a moving high water mark would have made title uncertain. A fixed building line drawn on a professional survey gave everyone a predictable boundary. The 1981 amendment renamed it "property line."
Q: What is the reverter clause?
A: A provision in the 1939 act that returns the land to the State if the Town fails to observe the use restrictions (no buildings, kept open for streets/parks). The reverter is enforceable by the State if the Town builds prohibited structures on the granted strip.
Q: Does the post-1985 title shift mean the State can sell the renourished beach?
A: No. The 1985 amendment expressly says all such raised lands "shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage of the people of this State." State ownership comes with a public trust overlay; the State holds the renourished beach for the public, not as alienable property.
Q: Who pays for renourishment?
A: A mix of federal funds (U.S. Army Corps of Engineers projects), state funds, and local funds. Whether a particular project is "publicly financed" within § 146-6(f) depends on the source mix. A privately funded renourishment would vest title in the adjacent landowner rather than the State.
Q: What if Wrightsville Beach wants to bulldoze the storm-damaged area?
A: The Town can still pursue the CAMA permit. Title to the raised land vests in the State under § 146-6(f), but the Town's permit eligibility does not depend on owning the land. Other CAMA criteria (consistency with the local CAMA land use plan, no significant adverse environmental impacts, etc.) drive the permit decision.
Background and statutory framework
NC's coastal title and renourishment law sits at the intersection of three legal regimes: (1) public trust doctrine, (2) the State Lands Act, and (3) special legislative grants to coastal towns. Each layer adds rules.
The public trust doctrine is the oldest layer. It treats navigable waters and their bottoms as State-held for public benefit. Private ownership of submerged lands is constrained by this doctrine. NC's case law has been clear since the nineteenth century that the legislature cannot easily abdicate public trust rights without explicit language.
The State Lands Act of 1959 created the modern framework for state-owned lands and what can be conveyed. Submerged lands generally cannot be sold in fee, only easements. The Act expressly applies to submerged lands under navigable waters and the Atlantic Ocean within three miles seaward.
Special legislative grants are the third layer. NC has periodically granted specific tracts to specific towns by special act, with use restrictions and reverters. The 1939 Wrightsville Beach grant is one such example; the 1963 Carolina Beach grant addressed in Fishing Pier is another. The NC Supreme Court has consistently held that these special grants survive against later general statutes like the State Lands Act, because the legislature retains the power to carve out exceptions to its own laws.
The 1985 amendment introducing § 146-6(f) was a policy response to the growing scale of publicly funded beach renourishment. Without § 146-6(f), the title rule would have been complex: who owns the new dry land when the State pays for hydraulic dredging that pushes sand onto privately or municipally owned beach? The legislature picked a clean answer: publicly funded raised land vests in the State, with public trust overlay; privately funded raised land vests in the adjacent owner.
Citations
- Ch. 246, 1939 N.C. Session Laws (special grant of beach east of building line to Town of Wrightsville Beach)
- Ch. 618, 1981 N.C. Session Laws (amendment changing "building line" to "property line" and authorizing setback ordinances)
- 1985 N.C. Sess. Laws ch. 276, sec. 2 (adding N.C.G.S. § 146-6(f), title to publicly funded raised land vests in State)
- N.C. Gen. Stat. § 146-3 (State Lands Act prohibition on conveying submerged lands in fee)
- N.C. Gen. Stat. § 146-6(f) (title to publicly financed raised land vests in State)
- N.C. Gen. Stat. § 146-64 (definition of submerged lands, including Atlantic Ocean to three miles seaward)
- Former N.C. Gen. Stat. § 146-1 (1939 entry and grant statute prohibition on entry of lands under navigable waters)
- Gwathmey v. State of North Carolina, 342 N.C. 287 (1995) (public trust rights survive conveyance absent express reservation)
- Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297 (1970) (special legislative grant survives against later State Lands Act)
Source
Original opinion text
April 6, 1998
P.A. Wojciechowski
Division of Marine Fisheries
3441 Arendell Street
Morehead City, North Carolina 28577-0769
RE: Advisory Opinion: Ownership of Renourished Beach at Wrightsville Beach; Ch. 246, 1939 Session Laws; N.C.G.S. § 146-6(f).
Dear Mr. Wojciechowski:
You asked several questions concerning Chapter 246 of the 1939 Session Laws (hereinafter "1939 Session Law") regarding title to land built up and constructed in the Town of Wrightsville Beach as a result of certain erosion control work. The issues arose from the Town's application for a Coastal Area Management Act permit for beach bulldozing to create a protective berm in areas overwashed by 1996 storms. In particular, you asked whether the 1939 Session Law conveys fee simple title to the Town of Wrightsville Beach to the low water mark of the Atlantic Ocean. You also asked for a clarification of the restricted use clauses concerning public use and reversion. After careful review, we conclude the 1939 Session Law, as a special legislative grant, conveyed good title to the Town of Wrightsville Beach subject to public trust rights. Although good title was conveyed in 1939, publicly funded projects since May 30, 1985, which raised land above the mean high water mark by hydraulic dredging or deposition of spoil or sand, would have vested title in the State by operation of law pursuant to N.C.G.S. § 146-6(f).
Background
Since the Town's act of restoring eroded shoreline by pumping sand from Banks Channel created new land, the 1939 Session Law attempted to fix title to the new land, define the use of the new land and define the littoral rights of adjacent landowners. It fixed title by reference to a building line drawn in a professionally surveyed map. Any land restored west of the line belonged to the adjacent land owner. Land owners abutting the new land retained their littoral rights as if they bordered the Atlantic Ocean. The 1939 Session Law conveyed land east of the line to the low water mark to the Town of Wrightsville Beach, subject to the restrictions that nothing could be built in the area, and it would be kept open "for the purpose of streets and highways for the use of the public, and further for the development and uses as a public square or park" as defined by ordinance. If the Town failed to follow these conditions, the land east of the line reverted to the State.
Public Trust Rights
Regarding your question concerning public use, an examination of the public trust doctrine reveals the 1939 Session Law did not limit or remove any public trust rights. In North Carolina, the public trust doctrine results in a presumption that the General Assembly does not intend to convey lands without reservation of public trust rights. This presumption can only be overcome by "expressly conveying lands underlying navigable waters in fee simple and without reservation of any public trust rights." Gwathmey v. State of North Carolina, 342 N.C. 287, 304 (1995) (emphasis in original). The 1939 Session Law grants and conveys the land east of the building line "in fee simple to the Town of Wrightsville Beach" upon certain restrictions protecting the public's right of access, but does not expressly convey it without reservation of public trust rights. In fact, the 1939 Session Law names at least two public trust rights which must be observed, i.e., that no structures will be built upon the land and that the area will be kept open for public streets and highways and for the development and use as a public square or park. Therefore, the 1939 Session Law conveys the land to the Town of Wrightsville Beach subject to all public trust rights.
Title to the Raised Land
Regarding your question concerning title to land to the low water mark, the prohibition of submerged land conveyance in the State Lands Act of 1959, N.C.G.S. §§ 146-1, et seq., does not affect the 1939 Session Law conveyance. Generally, ownership of the foreshore, which is the land between the high and low tide lines, is vested in the State. The State Lands Act, the current law defining State-owned lands and specifying those which may be transferred, specifically provides that submerged lands may not be conveyed in fee, but easements may be granted. N.C.G.S. § 146-3. Submerged lands include those under navigable-in-fact waters and under the Atlantic Ocean for three miles seaward from the coastline. N.C.G.S. § 146-64. The 1939 Session Law transfers lands lying between the high and low water marks of the Atlantic Ocean in fee simple to the Town of Wrightsville Beach. Although this appears to be inconsistent with the prohibition of submerged lands conveyance under N.C.G.S. § 146-3, the State Lands Act does not apply to the 1939 Session Law conveyance, since it was not in force at the time of the special legislative grant. Further, Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297 (1970) found the 1959 State Lands Act did not bar a similar session law adopted in 1963 (after the effective date of the State Lands Act), from granting the Town of Carolina Beach the land between a building line and the low water mark of the Atlantic Ocean. Like the 1939 Session Law, the 1963 Session Law at issue in Fishing Pier repealed all laws in conflict with it. The Court recognized the Legislature's power to amend or make exceptions to its own acts and found that it had done so in the 1963 session law. Id. at 304.
Likewise, earlier statutes which only allowed entry of land under non-navigable waters did not bar the 1939 Session Law conveyance. The entry and grant statute in effect at the time the 1939 Session Law was written contains a prohibition against entry of "[l]ands covered by navigable waters." Former N.C.G.S. § 146-1. However, it only applies to grants made pursuant to the entry and grant statute. Although the State owns lands beneath navigable waters in public trust, the General Assembly has the power to dispose of lands lying between the high and low water lines by special grant. See Gwathmey, 342 N.C. at 293. The 1939 Session Law was a direct grant from the Legislature, not a grant made pursuant to an "entry" under the entry and grant statute. Therefore, the prohibition against entry of lands covered by navigable waters did not apply to the special legislative grant to the Town of Wrightsville Beach.
After the State Lands Act came into effect in 1959, the 1939 Session Law was amended by Chapter 618 of the 1981 Session Laws. The amendments replace the phrase "the property line" for "the building line" throughout the original act. It also gives the Town of Wrightsville Beach the power to determine, by ordinance, the minimum building setback requirements from the renamed "building line" established pursuant to the 1939 Session Law. The fact that the Legislature amended the earlier 1939 Session Law in 1981 shows an intent to maintain the effectiveness of the earlier Session Law, as revised.
However, a later amendment of the State Lands Act by the Legislature allowed title to shift from the Town of Wrightsville Beach to the State. In 1985, the State Lands Act was amended to establish title to certain lands raised from navigable waters. A new section was added addressing title to land in or immediately along the Atlantic Ocean raised above the mean high water mark. Act of May 30, 1985, 1985 N.C. Sess. Laws ch. 276, sec. 2 (codified at N.C.G.S. § 146-6(f)). The new language reads:
(f) Notwithstanding the other provisions of this section, the title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed projects which involve hydraulic dredging or other deposition of spoil materials or sand vests in the State. Title to such lands raised through projects that received no public funding vests in the adjacent littoral proprietor. All such raised lands shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage of the people of this State. N.C.G.S. § 146-6(f). (Emphasis added.)
Under this section, publicly funded projects involving hydraulic dredging or deposition of spoil materials or sand vest title to the raised land in the State. Privately funded projects vest title in the adjacent littoral property owner. In either case, all such raised lands remain subject to public trust rights. As a result, publicly funded beach renourishment activities since the May 30, 1985 effective date of the statute would vest title to land thus raised above the mean high water mark in the State, not the Town of Wrightsville Beach or adjacent landowners. A further inquiry into the extent and area of land affected by such publicly funded projects may be needed to clarify the title of the land in question.
Although the 1939 Session Law, as a special legislative grant, conveyed good title to the Town of Wrightsville Beach subject to public trust rights, publicly funded projects since May 30, 1985, which raised the land within the bounds of the grant above the mean high water mark by hydraulic dredging or deposition of spoil or sand would have vested title in the State by operation of law pursuant to N.C.G.S. § 146-6(f). In our opinion this would include publicly funded activities by a municipality involving the deposition of spoil material, such as beach bulldozing, which raises land above the high water mark. In effect, as a result of state law, the continuing beach renourishment activities since 1985 transferred title from the Town of Wrightsville Beach to the State. Of course, the CAMA permit may still be issued, even if the Town does not own the beach, provided that other Coastal Resources Commission guidelines are met by the application.
Thank you for your inquiry. Please advise if we may be of further assistance.
signed by:
Daniel C. Oakley
Senior Deputy Attorney General
J. Allen Jernigan
Special Deputy Attorney General
Mary Penny Thompson
Associate Attorney General