{ "id": 4170296, "name": "FRANK BAUMAN, MICHAEL BROUGH, PAM JONES, GENE FRAZELLE, and GREG TILLMAN, Plaintiffs v. WOODLAKE PARTNERS, LLC, WOODLAKE PARTNERS, LIMITED PARTNERSHIP, Defendants, FRANK A. DUBE, KARL B. KILLINGSTAD, JUDITH R. KILLINGSTAD, WITHERS G. HORNER, ELIZABETH A. HORNER, and ELIZABETH LANTZ, Defendant-Intervenors", "name_abbreviation": "Bauman v. Woodlake Partners, LLC", "decision_date": "2009-09-01", "docket_number": "No. COA08-897", "first_page": "441", "last_page": "454", "citations": [ { "type": "official", "cite": "199 N.C. App. 441" } ], "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": "577 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "405", "parenthetical": "\"When sitting without a jury, the trial court is able to eliminate incompetent testimony, and the presumption arises that it did so.\"" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191190 ], "year": 2003, "pin_cites": [ { "page": "487", "parenthetical": "\"When sitting without a jury, the trial court is able to eliminate incompetent testimony, and the presumption arises that it did so.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0477-01" ] }, { "cite": "86 S.W.2d 441", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 2296270, 10243079 ], "weight": 4, "year": 1935, "pin_cites": [ { "page": "442" }, { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/tex/126/0129-01", "/sw2d/86/0441-01" ] }, { "cite": "126 Tex. 129", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2296270 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/tex/126/0129-01" ] }, { "cite": "330 S.C. 79", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 510107 ], "weight": 11, "year": 1997, "pin_cites": [ { "page": "84" }, { "page": "391" }, { "page": "88" }, { "page": "393" }, { "page": "85" }, { "page": "392" }, { "page": "90" }, { "page": "394", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/sc/330/0079-01" ] }, { "cite": "13 N.C. 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276129 ], "year": 1828, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/13/0030-01" ] }, { "cite": "38 S.E. 900", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1901, "pin_cites": [ { "page": "901", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "128 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661613 ], "year": 1901, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/128/0600-01" ] }, { "cite": "108 Mass. 436", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2106199 ], "year": 1871, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/mass/108/0436-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-45.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "464 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "677" }, { "page": "681" }, { "page": "682" }, { "page": "682" } ], "opinion_index": 0 }, { "cite": "342 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795930 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "293" }, { "page": "301" }, { "page": "300" }, { "page": "300-01" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0287-01" ] }, { "cite": "51 N.C.L.Rev. 1", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1970, "pin_cites": [ { "page": "17" } ], "opinion_index": 0 }, { "cite": "370 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "702", "parenthetical": "stating that \"a remand to the trial court is not necessary if the facts are not in dispute and if only one inference can be drawn from the undisputed facts.\"" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524851 ], "year": 1988, "pin_cites": [ { "page": "150", "parenthetical": "stating that \"a remand to the trial court is not necessary if the facts are not in dispute and if only one inference can be drawn from the undisputed facts.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0147-01" ] }, { "cite": "515 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "224", "parenthetical": "stating that \"when a court fails to make appropriate findings or conclusions, this Court is not required to remand the matter if the facts are not in dispute and only one inference can be drawn from them\"" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11219575 ], "year": 1999, "pin_cites": [ { "page": "341", "parenthetical": "stating that \"when a court fails to make appropriate findings or conclusions, this Court is not required to remand the matter if the facts are not in dispute and only one inference can be drawn from them\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0339-01" ] }, { "cite": "194 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "7" } ], "opinion_index": 0 }, { "cite": "282 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568004 ], "year": 1973, "pin_cites": [ { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0610-01" ] }, { "cite": "520 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "800" }, { "page": "800" }, { "page": "800" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241824 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "517" }, { "page": "518" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0515-01" ] }, { "cite": "196 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "539" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548993 ], "year": 1973, "pin_cites": [ { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0298-01" ] }, { "cite": "268 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "571", "parenthetical": "citing Carteret County General Hospital Corp. v. Manning, 18 N.C. App. 298, 300, 196 S.E.2d 538, 539 (1973)" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549107 ], "year": 1980, "pin_cites": [ { "page": "89", "parenthetical": "citing Carteret County General Hospital Corp. v. Manning, 18 N.C. App. 298, 300, 196 S.E.2d 538, 539 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0082-01" ] }, { "cite": "566 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "164", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081496 ], "year": 2002, "pin_cites": [ { "page": "589", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0587-01" ] }, { "cite": "325 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526913 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0449-01" ] }, { "cite": "355 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "521" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170056 ], "year": 1987, "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0484-01" ] }, { "cite": "351 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "792" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 27", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167365 ], "year": 1987, "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0027-01" ] }, { "cite": "68 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "234 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625314 ], "year": 1951, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0632-01" ] } ], "analysis": { "cardinality": 1296, "char_count": 33231, "ocr_confidence": 0.756, "pagerank": { "raw": 4.719567370958748e-08, "percentile": 0.29634874465654176 }, "sha256": "e205015e80d6798c560884fd523fbfc911acce9bb5d6c349c0f92543e9b9ae13", "simhash": "1:a763d6e6b21cb751", "word_count": 5589 }, "last_updated": "2023-07-14T20:19:28.879345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and JUDGE WYNN concur." ], "parties": [ "FRANK BAUMAN, MICHAEL BROUGH, PAM JONES, GENE FRAZELLE, and GREG TILLMAN, Plaintiffs v. WOODLAKE PARTNERS, LLC, WOODLAKE PARTNERS, LIMITED PARTNERSHIP, Defendants, FRANK A. DUBE, KARL B. KILLINGSTAD, JUDITH R. KILLINGSTAD, WITHERS G. HORNER, ELIZABETH A. HORNER, and ELIZABETH LANTZ, Defendant-Intervenors" ], "opinions": [ { "text": "ERVIN, Judge.\nPlaintiffs, owners of real property situated in Woodlake Country Club (Woodlake), appeal a judgment entered by the trial court in favor of Defendants, Woodlake Partners, LLC, and Woodlake Partners, Limited Partnership, the owner and developer of Wood-lake. Plaintiffs sought, among other things, a declaration that Defendants\u2019 imposition of a lake access fee charged to those Woodlake property owners desiring boating privileges was contrary to law and could not be enforced. For the reasons stated below, we affirm the trial court\u2019s judgment.\nFactual Background\nWoodlake is a gated residential community located near Vass in Moore County. Among its varied amenities is a lake with a surface, area of approximately 1,200 acres formed by the damming of two creeks, one of which is known as Crane\u2019s Creek.\nIngolf Boex (Boex) is the Defendants\u2019 sole shareholder and president. In 2000, after obtaining sole ownership of Defendants, Boex adopted the Woodlake Constitution and By-Laws, which supplemented Woodlake\u2019s Rules and Regulations. According to the Rules and Regulations, two categories of membership were available at Woodlake: a Premiere Membership and a Social Membership. Regardless of whether one was a Premiere or Social resident, all members enjoyed unfettered access to the lake without the necessity for paying a fee.\nAt a Board of Advisors meeting held in November, 2004, Boex announced plans to implement new membership categories and rights that were to become effective 1 January 2005. Among the changes Boex intended to implement was the imposition of an annual lake access fee of $1,250 that had to be paid in order for a property owner to operate a boat on the lake.\nOn 12 May 2005, Plaintiffs filed a declaratory judgment action against Defendant in which Plaintiffs requested that the court examine the relevant provisions of the Woodlake Constitution, By-laws, Rules and Regulations and the applicable law in order to determine the rights of the parties. Among the declarations sought by Plaintiffs was a pronouncement that \u201cthe purported implementation by Defendant^ of a lake access fee violates the parties\u2019 agreements and violates the Plaintiff\u2019s right of access to navigable waters as set forth in applicable state and federal law.\u201d Plaintiffs subsequently filed an amended complaint on 27 May 2005.\nOn 22 July 2005, Defendants filed a motion for judgment on the pleadings and an answer in which, they denied the material allegations of Plaintiffs\u2019 complaint and requested that the complaint be dismissed with prejudice. On 5 September 2005, Frank A. Dube, Karl P. Killingstad, Judith R. Killingstad, Withers G. Horner, Elizabeth Horner, and Elizabeth Lantz filed a motion to intervene and a complaint in intervention in which they sought leave to participate in this proceeding in alignment with Defendants. On 19 November 2005, Judge Donald L. Smith entered a Consent Order allowing Intervenors\u2019 intervention and authorizing Intervenors to file an answer to Plaintiffs\u2019 amended complaint. On 22 December 2005, Intervenors filed an answer and counterclaim in which they denied the material allegations of Plaintiffs\u2019 amended complaint and requested the court to uphold Defendant\u2019s actions. On 17 February 2006, Plaintiffs filed a reply to Intervenors\u2019 counterclaim.\nThis case came on for trial before Judge Lindsay R. Davis, Jr., at the 14 January 2008 civil session of Moore County Superior Court. At that session of court, the parties eventually stipulated to an agreed-upon resolution of all issues related to the proper interpretation of the Constitution and By-Laws and Rules and Regulations. In light of the parties\u2019 agreement, the trial court determined that \u201cthe only issue to be tried [was] whether the waters of the lake [were] \u201cnavigable waters.\u201d The lone disputed issue was heard by the trial court, sitting without a jury.\nAt trial, Plaintiff, Frank Bauman (Bauman), presented evidence on behalf of himself and the other Plaintiffs. Bauman testified that he and plaintiffs, Mike McGee (McGee) and Don Jones (Jones), took a half-mile canoe trip on Crane\u2019s Creek upstream from the lake during the summer of 2006. The trip taken by Bauman, Jones, and McGee was videotaped, and the videotape was introduced into evidence. At the time of their voyage up Crane\u2019s Creek, Bauman and Jones utilized a canoe that was approximately seventeen feet in length while McGee paddled a twelve-foot kayak.\nThe boats were launched near a bridge on McLaughlin Road, which runs north and south and separates Woodlake on the east from other privately owned land on the west. At the point where the canoe was launched, the creek was approximately 100 feet in width. At the conclusion of the half-mile trip, the width of the stream from bank to bank remained the same. In addition, the three men encountered a tributary of Crane\u2019s Creek during their travels that appeared to be navigable itself.\nAs they traveled upstream in a westerly direction, the three men dipped their oars, which were approximately six to eight feet in length, into the water at various points in order to measure its depth. When the three men tested the water\u2019s depth in this manner, their oars were completely submerged.\nAside from describing his trip up Crane\u2019s Creek, Bauman testified that Crane\u2019s Creek appeared to be navigable by small boat at the point where it intersected Crane\u2019s Creek Road and Cypress Creek Road, which are located about two to three miles upstream from the lake. Although Bauman had not personally paddled along Crane\u2019s Creek below the dam that created the lake, he testified that he was aware that others had done so.\nAfter Plaintiffs rested, Defendants and Intervenors elected to refrain from presenting evidence and moved to dismiss. After hearing the arguments of counsel, the trial court took the matter under advisement. On 16 January 2008, the trial court entered an Order and Judgment in which it determined \u201cthat the [D]efendants[\u2019] and [D]efendant-[I]ntervenors[\u2019] motions to dismiss at the close of the evidence are granted, and [Plaintiffs\u2019 claim based on the [Defendants\u2019 imposition of a fee for use of the lake is dismissed, with prejudice.\u201d In the concluding paragraph of its order, which attempted to explain the basis for its decision, the trial court stated that:\nThe \u201ctest\u201d for navigability . . . requires a showing that the body of water is navigable by watercraft in its natural condition. \u201cNatural condition\u201d clearly means without modification at the hands of man. See Fitch v. Selwyn Village, 234 N.C. 632, 635, 68 S.E.2d 255, 257 (1951), which involved a claim based on attractive nuisance, and in which the Court distinguished between artificial impoundments and streams which flow in their \u201cnatural state.\u201d The plaintiffs offered evidence that the lake is man-made, by the damming of two creeks. They offered evidence that one of the creeks, Cranes Creek, is navigable in its natural condition upstream of the lake, but no evidence whether it is navigable in its natural condition at the site of the lake or downstream...\nPlaintiffs noted an appeal to this Court from the trial court\u2019s judgment.\nProcedural Issues and Standard of Review\nTrials conducted by the court sitting without a jury are governed by N.C. Gen. Stat. \u00a7 1A-1, Rule 41. N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b) provides, in pertinent part, that:\nAfter the plaintiff, in an action . . . without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).\nOrdinarily, the standard of review on appeal from a judgment entered by a trial judge sitting without a jury is whether there was competent evidence to support the trial court\u2019s findings of fact and whether the trial court\u2019s conclusions of law were proper in light of such facts. Chemical Realty Corp. v. Home Fed\u2019l Savings & Loan, 84 N.C. App. 27, 37, 351 S.E.2d 786, 792 (1987). The trial court\u2019s factual findings in such a proceeding are treated in the same manner as a jury verdict and are conclusive on appeal if they are supported by the record evidence. Hunt v. Hunt, 85 N.C. App. 484, 488, 355 S.E.2d 519, 521 (1987). A trial court\u2019s conclusions of law, however, are reviewable de novo. Wright v. T&B Auto Sales, Inc., 72 N.C. App. 449, 325 S.E.2d 493, 495 (1985).\nAccording to Plaintiffs, the trial court erred by failing to make specific findings of fact and to separately state its conclusions of law. Generally speaking, Plaintiffs have accurately described what a trial court is supposed to do at the conclusion of a non-jury trial. \u201cIn all actions tried upon the facts without a jury . .. the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 52(1)(1); Pineda-Lopez v. N.C. Growers Ass\u2019n, 151 N.C. App. 587, 589, 566 S.E.2d 162, 164 (2002) (emphasis in original). Furthermore, \u201c[t]he requirement that findings of fact be made is mandatory, and the failure to do so is reversible error.\u201d Graphics, Inc. v. Hamby, 48 N.C. App. 82, 89, 268 S.E.2d 567, 571 (1980) (citing Carteret County General Hospital Corp. v. Manning, 18 N.C. App. 298, 300, 196 S.E.2d 538, 539 (1973)); see also Hill v. Lassiter, 135 N.C. App. 515, 517, 520 S.E.2d 797, 800 (1999).\nAdmittedly, the trial court\u2019s order is not couched in the usual form, in which separately-numbered findings of fact are followed by separately-numbered conclusions of law, all of which lead up to and provide a justification for the result reached by the trial court. The absence of such separately-stated findings of fact and conclusions of law does not, even if erroneous, invariably necessitate a grant of appellate relief. Instead, the critical factor in determining whether an alleged error necessitates a new trial or some other form of relief is the extent to which \u201cthis Court is unable to determine the propriety of the order unaided by findings of fact explaining the reasoning of the trial court.\u201d Hill, 135 N.C. App. at 518, 520 S.E.2d at 800. Assuming arguendo that the trial court\u2019s order lacks sufficient, separately-numbered findings and conclusions to comply with N.C. Gen. Stat. \u00a7 1A-1, Rules 41(b) and 52(a), we do not believe that such an error necessitates an award of appellate relief in this instance for two different, albeit related, reasons.\nFirst, as we have already noted, the trial court found that Plaintiffs \u201coffered evidence that the lake is man-made, by the damming of the two creeks\u201d and that \u201cone of the creeks, Crane [\u2019]s Creek, is navigable in its natural condition upstream of the lake.\u201d However, the trial court also noted that Plaintiffs offered \u201cno evidence whether [Crane\u2019s Creek] was navigable in its natural condition at the site of the lake or downstream.\u201d In view of the fact that we are able to discern the. factual basis for the trial court\u2019s decision from the language of its order, we conclude that the trial court\u2019s failure to separately state the basis for its decision in the form of traditional findings and conclusions has not precluded us from ascertaining the extent to which the trial court\u2019s decision has adequate evidentiary support and the extent to which the trial court properly applied the law to the facts. Thus, since we are able to adequately evaluate \u201cthe propriety of the order,\u201d Hill, 135 N.C. App. at 518, 520 S.E.2d at 800, we do not believe that an award of appellate relief is necessary in this case even if the trial court\u2019s failure to set out separately enumerated findings of fact and conclusions of law violated N.C. Gen. Stat. \u00a7 1A-1, Rules 41(b) and 52(a).\nSecondly, despite the fact that a trial judge sitting without a jury serves as the trier of fact and \u201cmay weigh the evidence, find the facts against plaintiff and sustain defendant\u2019s motion [for involuntary dismissal] at the conclusion of his evidence even though plaintiff has made out a prima facie case which would have precluded a directed verdict for defendant in a jury case,\u201d Helms v. Rea, 282 N.C. 610, 619, 194 S.E.2d 1, 7 (1973), the trial court may have also faced a situation in which Plaintiff was not entitled to relief under any theory given the facts in the record. In such an instance, no remand for proper findings is necessary even if the trial court failed to make proper findings. Green Tree Financial Servicing Corp. v. Young, 133 N.C. App. 339, 341, 515 S.E.2d 223, 224 (1999) (stating that \u201cwhen a court fails to make appropriate findings or conclusions, this Court is not required to remand the matter if the facts are not in dispute and only one inference can be drawn from them\u201d); Harris v. N. C. Farm Bureau Mut. Ins. Co., 91 N.C. App. 147, 150, 370 S.E.2d 700, 702 (1988) (stating that \u201ca remand to the trial court is not necessary if the facts are not in dispute and if only one inference can be drawn from the undisputed facts.\u201d) As a result, we conclude that, in the event the evidence presented to the trial court, even when considered in the light most favorable to Plaintiff, is insufficient to sustain a decision in Plaintiff\u2019s favor, a failure to make adequate findings of fact and conclusions of law as required by N.C. Gen. Stat. \u00a7 1A-1, Rules 41(b) and 52(a), will not be deemed to constitute prejudicial error. For the reasons set forth below, we do not believe that Plaintiffs are entitled to judgment in their favor under any view of the evidence, so that no award of appellate relief is required here for that reason as well.\nSubstantive Analysis\nOn appeal, Plaintiffs contend that the trial court erred by failing to determine that Crane\u2019s Creek constitutes a navigable waterway, so that the lake is subject to the public trust doctrine and available for use by the public without charge. According to Plaintiffs, the public trust doctrine is applicable to \u201cthose lakes that are created by interrupting the flow of a naturally occurring navigable stream.\u201d Petitioners equate North Carolina\u2019s \u201cnavigable-in-fact\u201d test to a recreational boating test, under which the ability to travel up and down a stream in a kayak would render that stream navigable in law and, therefore, subject to the public trust doctrine. After careful review of the applicable law and the evidence presented at trial, we conclude that Plaintiffs failed to adequately demonstrate the navigability of Crane\u2019s Creek, so that the lake at Woodlake is not subject to the public trust doctrine.\nThough \u201cthe extent of the public trust ownership of North Carolina is confused and uncertain . . . the Supreme Court of North Carolina has affirmed original state ownership of . . . lands under all waters navigable-in-fact.\u201d Thomas J. Schoenbaum, Public Rights and Coastal Zone Management, 51 N.C.L.Rev. 1, 17 (1970-71). Under the public trust doctrine, navigable waters are held in trust for the public based on \u201cinherent public rights in these lands and waters.\u201d Gwathmey v. State of North Carolina, 342 N.C. 287, 293, 464 S.E.2d 674, 677 (1995). The rights of the public in waters subject to the public trust doctrine are established by common law and extend to \u201cthe right to navigate, swim, hunt, fish, and enjoy all recreational activities in the watercourses of the State[.]\u201d N.C. Gen. Stat. \u00a7 1-45.1.\nAccording to the Supreme Court:\nThe controlling law of navigability as it relates to the public trust doctrine in North Carolina is as follows: \u201c\u2018If water is navigable for pleasure boating it must be regarded as navigable water, though no craft has ever been put upon it for the purpose of trade or agriculture. The purpose of navigation is not the subject of inquiry, but the fact of the capacity of the water for use in navigation.\u2019 \u201d [136 N.C.]' at 608-09, 48 S.E. at 588 (quoting Attorney General v. Woods, 108 Mass. 436, 440 (1871)). In other words, if a body of water in its natural condition can be navigated by watercraft, it is navigable in fact and, therefore, navigable in law, even if it has not been used for such purpose. Lands lying beneath such waters that are navigable in law are the subject of the public trust doctrine. . . .\nGwathmey, 342 N.C. at 301, 464 S.E.2d at 681. As a result, \u201cthe public ha[s] the right to [] unobstructed navigation as a public highway for all purposes of pleasure or profit, of all watercourses, whether tidal or inland, that are in their natural condition capable of such use.\u201d Gwathmey, 342 N.C. at 300, 464 S.E.2d at 682 (quoting State v. Baum, 128 N.C. 600, 38 S.E. 900, 901 (1901) (emphasis added)). The public retains the right to travel, by watercraft, on waters which are in their natural condition, capable of such use, without the consent of the riparian owners. Gwathmey, 342 N.C. at 300-01, 464 S.E.2d at 682.\nGwathmey clearly states that the public has a right to unobstructed navigability of waters in their natural state. Water that is navigable in its natural state flows without diminution or obstruction. Wilson v. Forbes, 13 N.C. 30, 35 (1828). As the trial court noted, \u201cplaintiffs contend that[,] if the lake is navigable in fact, that is enough to sustain their position that the defendants cannot impose a use fee.\u201d Thus, the principal issue before the trial court was whether Crane\u2019s Creek was \u201cnavigable in fact.\u201d\nAt most, the competent evidence presented by Plaintiffs demonstrated that one could take a canoe and a kayak one half mile upstream on Crane\u2019s Creek from the lake and that Crane\u2019s Creek appeared passable in a canoe or kayak at two road crossings several miles upstream from the lake. Thus, when taken in the light most favorable to Plaintiffs, the evidence reflects, as the trial court found, that \u201cCranes Creek[] is navigable in its natural condition upstream of the lake\u201d and that there was \u201cno evidence whether it was navigable in its natural condition at the site of the lake or downstream.\u201d As a result, the issue presented for decision by this Court is whether such evidence would suffice, if believed, to support a finding that the lake is subject to the public trust doctrine.\nIn attempting to demonstrate that the record evidence sufficed to demonstrate that the lake is subject to the public trust doctrine, Plaintiffs candidly admit that they have not identified any decisions of the Supreme Court or of this Court that address the issue which is before us in this case. For that reason, Plaintiffs place principal reliance on two decisions from other jurisdictions in support of their contentions. After carefully examining these decisions, we do not believe that they support Plaintiffs\u2019 position.\nInstate v. Head, 330 S.C. 79, 498 S.E.2d 389 (1997), the defendant was convicted of violating a statute which prohibited fishing \u201con the lands of another.\u201d The 246 acre site, known as Black\u2019s Pond, on which the defendant was charged with illegally fishing was created by damming Black Creek in Lexington County, South Carolina. Id. at 84, 498 S.E.2d at 391. The dispositive issue in Head was whether Black\u2019s Pond was navigable and, thus, subject to the public trust doctrine. Id. at 88, 498 S.E.2d at 393. In support of his contention that the water was open to public use, the defendant \u201cproduced aerial photographs as well as a map entitled \u2018Navigable Waters of South Carolina\u2019 \u201d which had been produced by the South Carolina Water Resources Commission \u201creflecting] the Commission\u2019s determination of navigable waterways through its interpretation of the applicable statutes and regulations,\u201d which \u201clist[ed] ... the relevant area of Black Creek as a navigable waterway.\u201d Id. at 85, 498 S.E.2d at 392. Although a lower tribunal found that the damming of Black Creek rendered it non-navigable, Id., the South Carolina Court of Appeals held that \u201cthe existence of occasional natural obstructions to navigation ... or artificial obstructions to navigation, such as dams, generally does not change the character of an otherwise navigable stream\u201d and reversed the defendant\u2019s conviction for violating the relevant statute. Id. at 90, 498 S.E.2d at 394 (citation omitted).\nIn Diversion Lake Club v. Heath, the owners of property on the shores of a lake created by the damming of the Medina River filed suit to enjoin the defendants from boating and fishing in the lake waters. 126 Tex. 129, 86 S.W.2d 441 (1935). The defendants, in turn, asserted their rights to use the lake under the public trust doctrine. Id. Prior to the damming of the lake, the Medina River had been designated as navigable by Texas statute. Id. at 132, 86 S.W.2d at 442. In deciding that the defendants were entitled to access to the lake under the public trust doctrine, the Texas Supreme Court determined that \u201cstatutory navigable streams in Texas are public streams,\u201d that \u201ctheir beds and waters are owned by the State in trust for the benefit and best interests of all the people,\u201d and that such streams are \u201csubject to use by the public for navigation, fishing and other lawful purposes, as fully and to the same extent that the beds and waters of streams navigable in fact are so owned and so held in trust and subject to such use.\u201d Id. at 138, 86 S.W.2d at 445.\nAlthough we do not quarrel with the result reached in either of the cases upon which Plaintiffs rely, both are readily distinguishable from the present case. In both Head and Diversion Lake Club, the streams that fed into Black Pond and Diversion Lake had been declared navigable by public agencies. Plaintiffs have not produced similar evidence in this case. Moreover, we do not believe, and are not holding, that the mere fact that a dam has been placed across a navigable stream, without more, suffices to render that stream non-navigable. Were we to adopt such a rule, many of the major rivers in North Carolina, such as the Catawba and the Yadkin, would become non-navigable, which would be a troubling result. Finally, while Head contains language to the effect that the ability-to use small boats on a stream renders it navigable in fact, that decision does not provide us with much guidance on the proper disposition of this case, which hinges on whether evidence that a stream can be traversed in small boats in isolated locations renders that stream navigable in fact for puiposes of the public trust doctrine. Thus, we do not find either of the out-of-state decisions upon which Plaintiffs place principal reliance to be particularly useful in resolving the issue before us in this case.\nAfter careful consideration of the record evidence, we conclude that Plaintiffs evidence, as reflected in the trial court\u2019s findings, does not suffice to support a determination that Crane\u2019s Creek is navigable in fact. As we have already noted, Plaintiff\u2019s evidence tends to establish merely that Crane\u2019s Creek is navigable in canoes and kayaks for about a half mile upstream from the lake and at a couple of upstream road crossings at a greater distance from the lake. Plaintiffs did not present any evidence addressing the navigability of Crane\u2019s Creek prior to the formation of the lake. Moreover, the record does not contain evidence that would support a finding that Crane\u2019s Creek was or had been navigable downstream from the lake or under the area now covered by the lake under normal conditions. Furthermore, there were significant \u201choles\u201d in Plaintiffs\u2019 evidence relating to the navigability of Crane\u2019s Creek. For example, Bauman testified on cross-examination that:\nQ Now Cranes Creek comes roughly down west, comes under U.S. 1, and then comes over to Woodlake. Is that correct?\nA Correct\nQ So you didn\u2019t \u2014 you didn\u2019t attempt to put your kayak or your canoe in Cranes Creek over to the west at U.S. 1?\nA No.\nQ And did you \u2014 did you attempt to put your kayak or your canoe into Cranes Creek below the dam which is roughly at the far eastern end of Woodlake?\nA I didn\u2019t, no.\nQ Have you done \u2014 have you done any examinations of the Cranes Creek territory or the Woodlake territory using U.S. Coast and Geodetic Survey Maps or anything else like that?\nA I have seen maps, yes.\nQ But you haven\u2019t studied those?\nA It depends on what you mean by study.\nQ Or done \u2014 done calculations, that sort of thing?\nA No.\nQ And did you \u2014 did you ever look at any maps or U.S.G.S. surveys that existed before the Woodlake dam was installed?\nA I \u2014 I\u2014Yes, I have seen some. Yes.\nQ And do you have those with you?\nA No.\nFinally, despite the trial court\u2019s findings with respect to the navigability of Crane\u2019s Creek upstream from the lake, Bauman provided testimony on cross-examination that raised questions about the extent to which the expedition which he, Jones, and McGee took occurred during a time in which there were normal water conditions.\nQ Mr. Bauman, on the videotape that we watched, would it be fair to say that in that area you were paddling, just from observing the video, there was very little current?\nA Yes. The current was not an issue with us.\nQ In fact, the current in the area you paddled in was negligible, wasn\u2019t it?\nA The current is negligible? Yes, I\u2019d say.\nQ Okay\nA Yes\nQ So the water impounded by the lake in fact impounds the water \u2014 that is, the water backed up all the way to the bridge you put in at is water that\u2019s backed up from the dam, isn\u2019t it, as opposed to the original creek?\nA I can\u2019t say that.\nQ Well, as soon as you go under McLaughlin Bridge there, is it not true that it\u2019s very wide right there, far wider than the creek, that immediately widens out?\nA Not a great deal, no. It\u2019s about the same size as you come through the bridge there. And it stays pretty much the same size. It might be a little wider as you get to the golf course, yes.\nQ It\u2019s not the original creek bank there, is it?\nA I have no idea.\nQ And wouldn\u2019t it be fair to say that because there\u2019s no current in the area you were paddling and it is wider than \u2014 certainly than the creek as you get up into it that most of the area you were paddling is actually impounded backed-up water?\nA I didn\u2019t say there wasn\u2019t current. I just said there wasn\u2019t current that impeded our progress. I\u2019m quite sure that there was probably current there. I\u2019ve seen current \u2014 I\u2019ve seen current there a number of times.\nThus, the record evidence, even when taken in the light most favorable to Plaintiffs, merely tends to show that Crane\u2019s Creek was navigable in small watercraft at various points upstream from the lake.\nAfter a thorough review of the record and the applicable law, we conclude that a stream cannot be said to be navigable in fact for purposes of subjecting a lake created by damming that stream to the public trust doctrine in the absence of evidence tending to show that the stream in question is passable by watercraft over an extended distance both upstream of, under the surface of, and downstream from the lake. If we were to find that Plaintiffs\u2019 evidence sufficed to trigger application of the public trust doctrine in this instance, we would effectively be holding that the navigability of a stream should be tested using short segments of the relevant waterway and that the same stream could have short, intermittent, intermingled navigable and non-navigable sections, a result which would introduce considerable confusion and difficulty into the application of the public trust doctrine in North Carolina. We do not believe that such a result is mandated by or consistent with applicable North Carolina law and decline to adopt such an approach.\nAs a result, for the reasons set forth above, we hold that the trial court correctly concluded that the absence of evidence tending to show that Crane\u2019s Creek was \u201cnavigable in fact\u201d for a meaningful distance both upstream of, under the surface of, and downstream from the lake precluded a finding that the lake was subject to the public trust doctrine. Furthermore, given that Plaintiffs\u2019 evidence was insufficient to permit a valid determination that the lake was subject to the public trust doctrine and that the trial court correctly concluded that Plaintiffs\u2019 failure to demonstrate that Crane\u2019s Creek was navigable under the surface of and downstream from the lake, any error that the trial court may have committed by failing to make separately-numbered findings and conclusions does not necessitate an award of appellate relief. Thus, the trial court\u2019s determination that Plaintiffs had failed to demonstrate that the lake is subject to the public trust doctrine should be affirmed.\nConclusion\nThus, we conclude that Plaintiffs received a fair trial free from prejudicial error. As a result, the trial court\u2019s judgment should be, and hereby is, affirmed.\nAFFIRMED.\nChief Judge MARTIN and JUDGE WYNN concur.\n. The essential difference between the two categories of membership at Woodlake is that a Premiere membership provided membership in the Woodlake Golf Association while the Social membership did not. A third category of membership, transitional membership, is not relevant to the present dispute.\n. Due to the nature of the relief sought and the number of affected parties, Plaintiffs requested that this case be certified as a class action pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 23. By means of an order dated 4 August 2005, Judge James M. Webb certified this case as a class action, allowing all Woodlake members to intervene as plaintiffs in the action.\n. Defendant and Intervemors were provided with an opportunity to introduce evidence, but elected not to do so.\n. Actually, Plaintiffs\u2019 evidence did not demonstrate that Crane\u2019s Creek was navigable by canoe or kayak for its entire length between the lake and the two road crossings described by Bauman. Instead, Plaintiffs\u2019 evidence merely tended to show that Crane\u2019s Creek could be navigated in such craft for a half mile upstream from the lake and at two pther isolated upstream points. Thus, the trial court\u2019s finding is actually more favorable to Plaintiffs than the evidence that they adduced at trial.\n. Admittedly, Bauman testified that he had heard that someone else had traveled in a canoe on Crane\u2019s Creek downstream from the lake. Aside from the fact that the testimony that Bauman \u201ckn[e]w people that had\u201d \u201cput in below the dam and tried to paddle the creek\u201d likely constituted inadmissible hearsay, N.C. Gen. Stat. \u00a7 8C-1, Rule 802, which the trial court is presumed to have disregarded in reaching its decision, In re Foreclosure of Brown, 156 N.C. App. 477, 487, 577 S.E.2d 398, 405 (2003) (\u201cWhen sitting without a jury, the trial court is able to eliminate incompetent testimony, and the presumption arises that it did so.\u201d), nothing in this portion of Bauman\u2019s testimony indicates that water conditions were normal at the time that these attempts were made or that they were even successful. As a result, there is no error in the trial court\u2019s failure to determine that Crane\u2019s Creek was navigable in fact below the dam that resulted in the creation of the lake.\n. Obviously, the determination of whether a stream was navigable in fact under the surface of a lake should hinge upon its navigability as of the time before the lake existed.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Van Camp, Meachum & Newman, PLLC, by Michael J. Newman, for Plaintiffs.", "Gill & Tobias, LLP, \u2019 by Douglas R. Gill, for Defendants.", "West & Smith, LLP by Stanley West, for Defendant-Intervenors." ], "corrections": "", "head_matter": "FRANK BAUMAN, MICHAEL BROUGH, PAM JONES, GENE FRAZELLE, and GREG TILLMAN, Plaintiffs v. WOODLAKE PARTNERS, LLC, WOODLAKE PARTNERS, LIMITED PARTNERSHIP, Defendants, FRANK A. DUBE, KARL B. KILLINGSTAD, JUDITH R. KILLINGSTAD, WITHERS G. HORNER, ELIZABETH A. HORNER, and ELIZABETH LANTZ, Defendant-Intervenors\nNo. COA08-897\n(Filed 1 September 2009)\n1. Trials\u2014 nonjury trial \u2014 failure to make specific findings of fact \u2014 failure to make separately stated conclusions of law\nThe trial court did not err in a nonjury trial by failing to make specific findings of fact and separately state its conclusions of law. The Court of Appeals was able to adequately evaluate the propriety of the trial court\u2019s order arid plaintiffs were not entitled to a judgment in their favor under any view of the evidence.\n2. Waters and Adjoining Lands\u2014 navigable waterway \u2014 public trust doctrine\nThe trial court did not err by failing to determine that Crane\u2019s Creek constituted a navigable waterway so that a lake formed by damming the creek was subject to the public trust doctrine and available for use by the public without charge. A stream cannot be said to be navigable in fact for purposes of subjecting a lake created by damming that stream to the public trust doctrine in the absence of evidence tending to show that the pertinent stream is passable by watercraft over an extended distance both upstream of, under the surface of, and downstream from the lake.\nAppeal by Plaintiffs from judgment entered 16 January 2008 by Judge Lindsay R. Davis, Jr. in Moore County Superior Court. Heard in the Court of Appeals 9 March 2009.\nVan Camp, Meachum & Newman, PLLC, by Michael J. Newman, for Plaintiffs.\nGill & Tobias, LLP, \u2019 by Douglas R. Gill, for Defendants.\nWest & Smith, LLP by Stanley West, for Defendant-Intervenors." }, "file_name": "0441-01", "first_page_order": 467, "last_page_order": 480 }