{ "id": 11709102, "name": "PINE KNOLL ASSOCIATION, INC., Plaintiff v. MARVIN G. CARDON, Defendant", "name_abbreviation": "Pine Knoll Ass'n v. Cardon", "decision_date": "1997-05-06", "docket_number": "No. COA96-347", "first_page": "155", "last_page": "161", "citations": [ { "type": "official", "cite": "126 N.C. App. 155" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "36 ALR3d 1113", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "34 ALR4th 778", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "14 ALR4th 1028", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "455 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "118 N.C. App. 406", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918586 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/118/0406-01" ] }, { "cite": "389 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308673, 5304354, 5305838, 5307792, 5307378 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0366-01", "/nc/326/0366-02", "/nc/326/0366-05", "/nc/326/0366-04", "/nc/326/0366-03" ] }, { "cite": "385 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "547" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 333", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521995 ], "year": 1989, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0333-01" ] }, { "cite": "54 S.E. 453", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1906, "pin_cites": [ { "parenthetical": "whether the upper riparian proprietor is engaged in a reasonable exercise of his right to use the stream is a question for the jury" } ], "opinion_index": 0 }, { "cite": "141 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253797 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/nc/141/0615-01" ] }, { "cite": "398 A.2d 536", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "537 P.2d 65", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 4445685 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/idaho/96/0785-01" ] }, { "cite": "192 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1937, "opinion_index": 0 }, { "cite": "212 N.C. 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600292 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/nc/212/0083-01" ] }, { "cite": "12 S.E. 281", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1890, "pin_cites": [ { "page": "284" } ], "opinion_index": 0 }, { "cite": "107 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272762 ], "weight": 2, "year": 1890, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc/107/0139-01" ] }, { "cite": "341 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718370, 4716643, 4720483, 4716008, 4719926 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0588-01", "/nc/315/0588-04", "/nc/315/0588-05", "/nc/315/0588-03", "/nc/315/0588-02" ] }, { "cite": "337 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "78 N.C. App. 16", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519386 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/78/0016-01" ] }, { "cite": "442 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "114 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527835 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/114/0580-01" ] }, { "cite": "262 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548343 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0271-01" ] }, { "cite": "414 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500046 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0057-01" ] } ], "analysis": { "cardinality": 732, "char_count": 16026, "ocr_confidence": 0.728, "pagerank": { "raw": 3.930211660644911e-07, "percentile": 0.9029943444579202 }, "sha256": "2d40376ad91fb3743c1f9c9aeba00c2c1cf0d9a656501bfd3ccbae1e6b3ccc25", "simhash": "1:d342f659ac1b2ed0", "word_count": 2525 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WYNN concur." ], "parties": [ "PINE KNOLL ASSOCIATION, INC., Plaintiff v. MARVIN G. CARDON, Defendant" ], "opinions": [ { "text": "MARTIN, John C., Judge.\nPlaintiff Pine Knoll Shores Association, an owners association for various Pine Knoll Shores subdivision properties located on the Bogue Banks barrier island, brought this action seeking damages and injunctive relief against defendant Marvin G. Card\u00f3n. Plaintiff alleged that defendant had violated its riparian rights, violated restrictive covenants, and trespassed upon its property. Defendant answered denying plaintiffs claim and asserting a counterclaim alleging that plaintiff was in violation of restrictive covenants.\nThe dispute arises upon the following factual background: Plaintiff and defendant own adjoining canal front properties on the \u201cdead end\u201d canal of Davis Landing Canal, which is navigable by pleasure boats. Plaintiffs tract of land, referred to as \u201cDavis Landing Park,\u201d has water frontage along the canal\u2019s end. Davis Landing Park and Davis Canal are common property of plaintiff and its members. Defendant\u2019s lot is immediately to the west of Davis Landing Park with a small protrusion of its boundary located on the western bank of Davis Landing Canal near the southwest comer of the park. A seawall runs approximately east-west along the park\u2019s canal frontage and approximately north-south along defendant\u2019s canal frontage.\nThe properties within Pine Knoll Shores are subject to a Declaration of Covenants and Restrictions, recorded in January 1971 in Book 324, Page 418, Carteret County Registry. On 13 June 1981, members of plaintiff purported to adopt and record an amendment to the restrictive covenants in Book 460, Page 198, Carteret County Registry, which provides, in pertinent part:\nARTICLE 5\n4. . . . [N]o fence, barricade or obstruction may be erected or placed in extensions of the property lines abutting the canals and Bogue Sound which would prevent ingress or egress along the waterfront side of said lots to pedestrians or others lawfully thereon.\nPlaintiff maintains a pier which is thirty-five feet in length and three and one-half feet wide, extending southwardly from the center of Davis Landing Park\u2019s canal frontage, and an adjacent ramp to the east of the dock for launching small boats. Defendant maintains a dock along his 26.1 feet of canal frontage. Defendant moors his two boats, of approximately thirty feet in length, perpendicular to his dock and parallel to plaintiff\u2019s sea wall.\nPlaintiff moved for partial summary judgment on the issue of defendant\u2019s interference with its riparian rights; and defendant moved for summary judgment dismissing plaintiff\u2019s action. At the commencement of the summary judgment hearing, plaintiff sought to voluntarily dismiss its claim for alleged violation of restrictive covenants. The trial court denied plaintiff\u2019s motion for summary judgment, granted defendant\u2019s motion for summary judgment and dismissed plaintiff\u2019s action. Plaintiff appeals.\nThe issue on appeal is whether the trial court erred in granting defendant\u2019s motion for summary judgment. We affirm in part, reverse in part, and remand.\nIn addressing a motion for summary judgment, the trial court is required to view the pleadings, affidavits and discovery materials available in the light most favorable to the non-moving party to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56 (1990); Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992). Summary judgment is proper where the moving party can establish that an essential element of the opposing party\u2019s claim does not exist, or that the opposing party cannot produce evidence to support an essential element. Id. Summary judgment is an appropriate procedure in a declaratory judgment action. Montgomery v. Hinton, 45 N.C. App. 271, 262 S.E.2d 697 (1980).\nI.\nWe first consider plaintiff\u2019s claim for trespass. In order to establish a claim for trespass to real property, plaintiff was required to forecast evidence of the following elements: (1) possession of the property by the plaintiff when the alleged trespass was committed; (2) an unauthorized entry by the defendant; and (3) damage to the plaintiff from the trespass. Lee v. Greene, 114 N.C. App. 580, 442 S.E.2d 547 (1994). The pleadings, affidavits, and answers to interrogatories before the trial court show that owners of property within Pine Knoll Shores are members of plaintiff Association and that members have the right to use \u201ccommon properties\u201d such as Davis Landing Canal and Davis Landing Park. Likewise, the evidence before the trial court clearly establishes that defendant is a property owner within Pine Knoll Shores, and therefore is a member of plaintiff Association. Plaintiff did not forecast evidence that defendant, as one of its members, is not authorized to use the seawall. Thus, the second element of plaintiff\u2019s claim, i.e., unauthorized entry onto plaintiffs seawall, is nonexistent and summary judgment for defendant was proper. Accordingly, the trial court\u2019s order granting summary judgment in favor of defendant with respect to the trespass claim is affirmed.\nII.\nWe next consider plaintiff\u2019s claim for interference with its riparian rights. Plaintiff contends the trial court erred in granting defendant\u2019s motion for summary judgment because there exists a genuine issue of material fact as to whether defendant, by mooring his boats parallel to plaintiff\u2019s seawall, interfered with plaintiff\u2019s riparian rights. Defendant argues that plaintiff did not retain riparian rights to the Davis Landing Park. Therefore, we must first determine whether each party owns riparian land, and if so, what is the extent of each party\u2019s riparian rights.\nRiparian rights are vested property rights that arise out of ownership of land bounded or traversed by navigable water. In re Protest of Mason, 78 N.C. App. 16, 337 S.E.2d 99 (1985), disc. review denied, 315 N.C. 588, 341 S.E.2d 27 (1986). A riparian owner has \u201ca qualified property in the water frontage belonging, by nature, to their land, the chief advantage growing out of the appurtenant estate in the submerged land being the right of access over an extension of their waterfronts to navigable water, and the right to construct wharfs, piers, or landings _\u201d Bond v. Wool, 107 N.C. 139, 148, 12 S.E. 281, 284 (1890).\nBoth plaintiff and defendant admit that lot one and Davis Landing Park are bounded by a navigable waterway, Davis Landing Canal. The record indicates that the Roosevelts owned property known as \u201cPine Knoll Shores Extension,\u201d and were the common source of title to defendant\u2019s lot one and plaintiff\u2019s Davis Landing Park. Plaintiff offered a deed, granted by the Roosevelts, dated 23 March 1977 recorded in Book 396, Page 43, Carteret County Registry conveying \u201call of the right, title and interest\u201d to various common facilities including \u201cDavis Landing and the land area underlying, and the Park adjacent thereto.\u201d Defendant offered many deeds showing that he acquired title by direct chain from the Roosevelts. Defendant was granted a deed in July of 1989 recorded in Book 614, Page 196, Carteret County Registry, conveying lot 1 with \u201call privileges and appurtenances thereto belonging to the Grantee in fee simple.\u201d Therefore, any such title that the Roosevelts had, including riparian rights, passed to and vested in plaintiff and defendant. Accordingly, the record indicates that both plaintiff and defendant are owners of land with riparian rights.\nThe next issue is whether the trial court correctly determined the extent of the parties\u2019 riparian rights. In Bond v. Wool, 107 N.C. 139, 12 S.E. 281 (1890), our Supreme court defined riparian rights where the boundary lines of property were reasonably perpendicular to the shoreline and the navigable water was parallel with the shoreline by extending straight lines of the sidelines of the lands into the water. In O\u2019Neal v. Rollinson, 212 N.C. 83, 192 S.E.2d 688 (1937), the court held that where the shore line is substantially straight, the riparian rights of adjoining landowners along a navigable stream are to be determined, not by extending the side property lines in a straight line to the channel, but by drawing lines from the end of the side property lines perpendicular to the shore line to the channel. Similarly, this Court in In re Protest of Mason, 78 N.C. App. 16, 337 S.E.2d 99 (1985), disc. review denied, 315 N.C. 588, 341 S.E.2d 27 (1986), held that the zone of riparian access is determined by drawing a line along the channel in front of the properties, then drawing a line perpendicular to the line of the channel so that it intersects with the shore at the point the upland property line meets the water\u2019s edge. The general rules for apportionment of riparian rights that our Supreme Court has fashioned cannot be strictly applied in the present case because irregular shore lines are involved, and if applied, defendant and plaintiff would not be treated equitably. In determining riparian rights where the shoreline is angled, as it is in this case, some jurisdictions have used the \u201cangle bisection formula,\u201d see Randall v. Ganz, 537 P.2d 65 (1975), other jurisdictions have used the \u201creasonable use\u201d delineation. See Heston v. Ousler, 398 A.2d 536 (1979).\nIn the absence of any controlling authority concerning the issue of proper allocation of water space between abutting riparian owners where the configuration of the shoreline is essentially a right angle, as here, we believe the \u201creasonable use\u201d test to be the most equitable method to determine the owner\u2019s rights. In applying the \u201creasonable use\u201d test, the owners\u2019 use of the waters adjacent to their property is governed by \u201ca rule of reasonableness, and must be restricted so as not to interfere with the correlative rights of other littoral owners.\u201d Heston, 398 A.2d at 538. North Carolina has recognized the doctrine of \u201creasonable use\u201d where water passes through the property. See Durham v. Cotton Mills, 141 N.C. 615, 54 S.E. 453 (1906). However, the question of whether or not a use of water is a \u201creasonable use\u201d in view of the rights of other riparian owners is a question of fact. Id. (whether the upper riparian proprietor is engaged in a reasonable exercise of his right to use the stream is a question for the jury); see also 65 C.J.S. Navigable Waters \u00a7 66 (1966). Because the question of \u201creasonable use\u201d is material to a determination of the controversy, we conclude that summary judgment was inappropriate on the riparian rights issue.\nIII.\nPlaintiff contends the trial court erred in granting defendant\u2019s motion for summary judgment on the issue of whether defendant violated the restrictive covenants. The issue, however, is moot. In its complaint, plaintiff alleged that defendant violated the restrictive covenants by mooring his boats parallel to plaintiffs sea wall. Defendant counterclaimed alleging plaintiff violated the restrictive covenants by erecting its pier. At the summary judgment hearing, plaintiff submitted to a voluntary dismissal as to its claim alleging defendant\u2019s violation of the restrictive covenants. Once a party voluntarily dismisses its action pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41(a)(1) (1990), \u201cit [is] as if the suit had never been filed.\u201d Tompkins v. Log Systems, Inc., 96 N.C. App. 333, 335, 385 S.E.2d 545, 547 (1989), disc. review denied, 326 N.C. 366, 389 S.E.2d 819 (1990). The trial court granted defendant\u2019s motion for summary judgment, dismissing plaintiff\u2019s case, but did not grant defendant any injunctive relief as to his counterclaim alleging plaintiff\u2019s violation of the restrictive covenants. Therefore, because plaintiff voluntarily dismissed its claim for defendant\u2019s alleged violation of restrictive covenants, and the trial court granted defendant no relief upon his counterclaim, plaintiff\u2019s assignment of error directed to the entry of summary judgment in favor of defendant on the issue of restrictive covenant violations is moot, and we need not consider it. See Doe v. Duke Univ., 118 N.C. App. 406, 455 S.E.2d 470 (1995).\nIn conclusion, summary judgment in favor of defendant is affirmed as to plaintiff\u2019s trespass and restrictive covenant claim; otherwise summary judgment is reversed and the cause remanded for further proceedings to determine the extent of the parties\u2019 riparian rights consistent with this opinion.\nAffirmed in part, reversed in part, and remanded.\nJudges GREENE and WYNN concur.", "type": "majority", "author": "MARTIN, John C., Judge." } ], "attorneys": [ "Kirkman & Whitford, P.A., by Neil B. Whitford, for plaintiff - appellant.", "Wheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, Jr., for defendant-appellee." ], "corrections": "", "head_matter": "PINE KNOLL ASSOCIATION, INC., Plaintiff v. MARVIN G. CARDON, Defendant\nNo. COA96-347\n(Filed 6 May 1997)\n1. Trespass \u00a7 46 (NCI4th)\u2014 unauthorized entry \u2014 insufficient forecast of evid\u00e9nce\nPlaintiff property owners association failed to establish the element of its trespass claim that defendant\u2019s entry onto plaintiff\u2019s seawall was unauthorized where its forecast of evidence showed that defendant was a member of the association and failed to show that defendant, as one of the association members, was not authorized to use the seawall.\nAm Jur 2d, Associations and Clubs \u00a7\u00a7 23, 27, 28; Condominiums and Co-Operative Apartments \u00a7 33; Cooperative Associations \u00a7 14; Easements and Licenses in Real Property \u00a7 46; Trespass \u00a7\u00a7 27-46; Waters \u00a7 277.\n2. Waters and Watercourses \u00a7 57 (NCI4th)\u2014 navigable canal \u2014 riparian rights\nBoth plaintiff property owners association and defendant landowner are owners of land with riparian rights where their lands were on a navigable canal; former landowners were a common source of title; plaintiff offered a deed from the former landowners conveying \u201call of the right, title and interest\u201d to various common facilities; defendant offered deeds showing title by direct chain from the former landowners; defendant\u2019s deed conveyed a lot with \u201call privileges and appurtenances thereto\u201d in fee simple; and any title the former landowners had, including riparian rights, passed to both plaintiff and defendant.\nAm Jur 2d, Boats and Boating \u00a7 24; Canals \u00a7\u00a7 7, 16; Waters \u00a7\u00a7 23, 51, 54, 269-280.\nAllocation of water space among lakefront owners, in absence of agreement or specification. 14 ALR4th 1028.\n3. Waters and Watercourses \u00a7 57 (NCI4th)\u2014 riparian rights\u2014 right angles \u2014 reasonable use test \u2014 question of fact\nThe \u201creasonable use\u201d test should be used to determine the proper allocation of water space between abutting riparian owners where the configuration of the shoreline is essentially a right angle, and the question of whether a use of water is a reasonable use in view of the rights of other riparian owners is a question of fact. Therefore, a genuine issue of material fact existed as to whether defendant, by mooring his boats parallel to plaintiff\u2019s seawall, interfered with plaintiffs riparian rights.\nAm Jur 2d, Boats and Boating \u00a7 24; Canals \u00a7 7; Waters \u00a7\u00a7 177, 226, 263, 338, 339, 269-280.\nAllocation of water space among lakefront owners, in absence of agreement or specification. 14 ALR4th 1028.\n4. Appeal and Error \u00a7 175 (NCI4th) \u2014 restrictive covenants\u2014 voluntary dismissal \u2014 counterclaim\u2014mootness\nSince plaintiff voluntarily dismissed its claim for defendant\u2019s alleged violation of restrictive covenants and the trial court granted no relief upon defendant\u2019s counterclaim on this issue, the plaintiff\u2019s assignment of error regarding the issue of restrictive covenant violations was moot.\nAm Jur 2d, Appellate Review \u00a7\u00a7 872, 874, 876, 877.\nConstructions, as to terms and conditions, of state statute or rule providing for voluntary dismissal without prejudice upon such terms and conditions as state court deems proper. 34 ALR4th 778.\nRight to voluntary dismissal of civil action as affected by opponent\u2019s motion for summary judgment, judgment on the pleadings, or directed verdict. 36 ALR3d 1113.\nAppeal by plaintiff from order entered 16 November 1995 by Judge W. Russell Duke, Jr., in Carteret County Superior Court. Heard in the Court of Appeals 4 December 1996.\nKirkman & Whitford, P.A., by Neil B. Whitford, for plaintiff - appellant.\nWheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, Jr., for defendant-appellee." }, "file_name": "0155-01", "first_page_order": 193, "last_page_order": 199 }