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  "name": "STEEL CREEK DEVELOPMENT CORPORATION, Plaintiff, and R. S. SMITH and wife, EVELYN L. SMITH, Additional Party Plaintiffs v. EARL TERRY JAMES and MARTHA S. JAMES, d/b/a TERRY'S MARINA, Defendants",
  "name_abbreviation": "Steel Creek Development Corp. v. James",
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      "STEEL CREEK DEVELOPMENT CORPORATION, Plaintiff, and R. S. SMITH and wife, EVELYN L. SMITH, Additional Party Plaintiffs v. EARL TERRY JAMES and MARTHA S. JAMES, d/b/a TERRY\u2019S MARINA, Defendants"
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      {
        "text": "WHICHARD, Judge.\nOn 21 April 1972 plaintiff, Steel Creek Development Corporation, filed this action in District Court, Mecklenburg County, asserting that defendants were trespassing on its submerged property located under Lake Wylie, a flooded portion of the Catawba River. The trespass alleged consisted of construction of certain floats and boat slips which were placed on the waters over plaintiffs land. Plaintiff sought an order directing defendants to remove the floats and slips, an injunction against further development on its property, and other relief deemed appropriate.\nOn 14 June 1972 the District Court declined to issue a temporary injunction directing defendants to remove the floats and slips pending trial. Defendants then filed an answer which, inter alia, denied the trespass on plaintiff\u2019s land. As a further defense defendants contended (1) that the waters upon which they had erected the floats and slips were public waters, and (2) that plaintiff, through its president, R. S. Smith, knew of the plans for construction of the floats and slips, made no objection thereto, and should therefore be equitably estopped from complaining of defendants\u2019 actions.\nOn 10 June 1974 plaintiff was allowed to amend its complaint to allege that since institution of the suit, defendants had erected additional floats and slips from which they were deriving substantial rental income. Plaintiff prayed for judgment for the fair rental value of the submerged land for so long as it was occupied by defendants and for a permanent injunction ordering removal of the floats and slips. Defendants\u2019 answer admitted the completion of one set of boat slips, but denied that it had been affixed to plaintiff\u2019s submerged land.\nAfter transfer of the action to Superior Court, plaintiff\u2019s motion to amend its complaint to add, as parties plaintiff, R. S. Smith and Evelyn L. Smith, to whom the corporate plaintiff had conveyed all its property upon dissolution, was allowed. Defendants answered the amended complaint asserting a new further answer, defense, and counterclaim, to wit, that plaintiffs had \u201cpursued a course of conduct to bring about the financial ruin of the Defendants,\u201d thus allowing plaintiffs to be in a position to acquire defendants\u2019 property at great financial loss and detriment to defendants. Defendants claimed loss of franchises and damage to their reputation, and sought $500,000 in damages. Plaintiffs moved to strike defendants\u2019 answer, asserting that defendants were entitled only to answer any new matter arising from the amendment to the complaint. This Court, in Development Corp. v. James, 35 N.C. App. 272, 241 S.E. 2d 122 (1978), held that the order granting defendants thirty days to file responsive pleadings to the amended complaint allowed them to respond \u201cin any proper way they deem appropriate to the amended complaint.\u201d Id. at 273, 241 S.E. 2d at 123. Judge Britt dissented, but plaintiffs did not appeal. In reply to defendants\u2019 counterclaim, plaintiffs pled the three year statute of limitations.\nAt the conclusion of discovery, both parties moved for summary judgment. An affidavit filed by plaintiff R. S. Smith established that in 1930 plaintiffs had purchased the disputed land, subject to the right of Duke Power Company to back, pond, or raise the waters of the Catawba River; and that defendants had erected two boathouses, both of which were anchored on plaintiffs\u2019 land. Defendants submitted the affidavit of Earl Terry James, which did not deny plaintiffs\u2019 ownership of the land.\nJudge Snepp determined there was no genuine issue as to any material fact except damages, and granted partial summary judgment for plaintiffs. He ordered defendants to remove the anchors on plaintiffs\u2019 submerged land and permanently enjoined defendants from using the land in that manner.\nThis Court dismissed defendants\u2019 appeal from that judgment as interlocutory, but the Supreme Court granted defendants\u2019 petition for discretionary review. In Development Corp. v. James, 300 N.C. 631, 638, 268 S.E. 2d 205, 210 (1980), the Supreme Court held that plaintiffs had \u201cestablished beyond genuine dispute that anchors connected to the boathouses built and launched by defendants in 1971 and 1972 trespass on submerged land owned by the plaintiffs.\u201d In reaching this conclusion, the Court relied heavily on an order of Judge Snepp finding that, since defendants failed to deny that part of plaintiffs\u2019 amended complaint alleging conveyance of the disputed land by the corporate plaintiff to the individual plaintiffs, that conveyance, and therefore plaintiffs\u2019 ownership, was deemed to be admitted. Id. After also determining that plaintiffs had shown defendants\u2019 evidence insufficient with respect to one or more of the essential elements of defendants\u2019 estoppel defense, the Court affirmed the partial summary judgment and remanded for trial on the issue of damages.\nBefore trial plaintiffs filed a motion (1) alleging that (a) cables attaching the boathouses to the anchors continued to rest on their submerged land, and (b) the boathouses themselves were permanently affixed above said land, and (2) seeking an order directing defendants to remove the boathouses from above the submerged land. Defendants responded, contending that in his partial summary judgment Judge Snepp refused to hold that the boathouses floating above plaintiffs\u2019 submerged land constituted a trespass, and that they had fully complied with the injunctive order.\nAt trial plaintiffs offered evidence tending to show that the fair market rental value of their property for the period from 1 January 1972 until 31 December 1980, was $15,414.00. Defendants\u2019 evidence tended to show that the annual rental value of the property was $10.00.\nThe issues and answers were:\n1. What amount of damages, if any, are the plaintiffs entitled to recover of the defendants by reason of a trespass occurring by the sinking of anchors on the plaintiffs\u2019 property?\nAnswer: $1.00\n2. What amount of damages, if any, are the plaintiffs entitled to recover of the defendants by reason of a trespass occurring by the floating and maintaining of boathouses above plaintiffs\u2019 submerged land?\nAnswer: $100.00\nThe court ordered defendants to pay plaintiffs $101.00 and to remove the two boathouses from the surface of the water above plaintiffs\u2019 submerged land.\nDefendants appeal, and plaintiffs cross-appeal.\nDefendants\u2019 Appeal\nThe first issue presented is whether defendants trespassed when they floated two boathouses above plaintiffs\u2019 submerged land.\nAs part of this issue, defendants seek to relitigate a question which has been settled, to wit, whether the submerged land is owned by plaintiffs. Judge Snepp\u2019s partial summary judgment and the Supreme Court opinion in Development Corp. v. James, 300 N.C. 631, 268 S.E. 2d 205 (1980), established that plaintiffs owned the submerged land on which defendants at one time affixed their boathouses. That determination is the law of the case.\n\u201cAs a general rule, when an appellate court passes on questions and remands the case for further proceedings to the trial court, the questions therein actually presented and necessarily involved in determining the case, and the decision on those questions become the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal, provided the same facts and the same questions, which were determined in the previous appeal, are involved in the second appeal.\u201d\nTransportation, Inc. v. Strick Corp., 286 N.C. 235, 239, 210 S.E. 2d 181, 183 (1974), quoting Parker, J., dissenting in part in Collins v. Simms, 257 N.C. 1, 11, 125 S.E. 2d 298, 305 (1962). Hence, to the extent that defendants seek to relitigate the question of ownership of the submerged land, their assignment of error is overruled.\nDefendants also attempt to raise the ownership issue under this assignment of error by contending that the waters of Lake Wylie are navigable, and that the State therefore owns the land thereunder. If a body of water is navigable in fact, then it is navigable in law. The test is \u201cthe capability of being used for purposes of trade and travel in the usual and ordinary mode . . . and not the extent and manner of such use.\u201d Taylor v. Paper Co., 262 N.C. 452, 456, 137 S.E. 2d 833, 836 (1964). See also G.S. 146-64(4); Parmele v. Eaton, 240 N.C. 539, 548, 83 S.E. 2d 93, 99 (1954).\nThe navigability issue appears to have been raised for the first time in this litigation on this appeal. The record reveals only that Lake Wylie is used for recreational boating, and that small seaplanes have occasionally landed on its surface. This evidence does not suffice to determine the capacity of the lake to support \u201ctrade and travel in the usual and ordinary mode.\u201d Taylor, supra. We are bound by, and may not indulge in speculation on matters dehors, the record. Equipment Co. v. Hertz Corp. and Contrac tors, Inc. v. Hertz Corp., 256 N.C. 277, 285, 123 S.E. 2d 802, 808 (1962). We thus do not consider the navigability issue on this appeal.\nThe remaining question under this assignment of error is whether plaintiffs own the waters above their submerged land. While the presence of the water may be transitory, the owner of submerged land, like the owner of dry land, owns also to the sky and to the depths: Cujus est solum, ejus est usque ad coelum et ad inferos. See Ingold v. Assurance Co., 230 N.C. 142, 145, 52 S.E. 2d 366, 368 (1949); Webster\u2019s Real Estate Law in North Carolina \u00a7 7 (Hetrick Rev. 1981). The owner of submerged land thus has the right to proscribe permanent fixtures lying above such land. As owners of the submerged land, plaintiffs are entitled to enjoy the waters above such land free of defendants\u2019 boathouses. The determination that plaintiffs are so entitled was not error.\nThe second issue presented is whether the partial summary judgment granted by Judge Snepp and affirmed by the Supreme Court was a final judgment, and is therefore res judicata on the issue of injunctive relief. Where, as here, the issue sought to be litigated was allegedly decided in an earlier appeal of the same case, the question is not whether the judgment is res judicata, but whether it has become the law of the case. See Transportation, Inc. v. Strick Corp., supra. In those terms, defendants assert that if Judge Snepp\u2019s judgment, which was affirmed by the Supreme Court, is the law of the case, Judge Gaines erred in allowing plaintiffs\u2019 motion for expanded injunctive relief and in ordering the removal of defendants\u2019 floats and slips from the waters over plaintiffs\u2019 submerged land.\nWhile there are cases granting the trial court authority to modify an injunction upon \u201ca clear showing of changed conditions meriting relief,\u201d McGuinn v. High Point, 219 N.C. 56, 62, 13 S.E. 2d 48, 52 (1941); see generally Annot., 68 A.L.R. 1180 (1930); Annot., 136 A.L.R. 765 (1942), Judge Gaines\u2019 order did not modify the partial summary judgment granted by Judge Snepp, but instead granted injunctive relief where Judge Snepp\u2019s order was silent. In his partial summary judgment, Judge Snepp found there was no genuine issue as to any material fact except damages, and that plaintiffs were entitled to \u201cinjunctive relief requiring removal of the concrete anchors placed by defendants on the submerged land owned by the plaintiffs, the continuing use of which is a continuing trespass for which money damages are inadequate relief.\u201d The judgment found for plaintiffs on all the substantive, as opposed to the remedial, issues. Plaintiffs had alleged that defendants were trespassing both by sinking anchors onto their submerged land and by floating boathouses on the waters above it. Judge Snepp agreed. The partial summary judgment addressed two of the remedial issues through a mandatory injunction ordering removal of the anchors and a denial of summary judgment on the issue of damages. Judge Snepp did not rule on the question of injunctive relief as to the floats and slips, and the Supreme Court opinion thus did not address the question.\nThere is, then, no law of the case as to the issue of the in-junctive relief ordered by Judge Gaines. Given our holding that plaintiffs have a right to have the waters above their submerged land free of permanent fixtures, Judge Gaines acted properly in ordering the removal of defendants\u2019 boathouses. Further, given the implicit findings by Judge Snepp as to the extent and continuing nature of defendants\u2019 trespass, mandatory injunction was the only adequate remedy available. We find no merit in defendants\u2019 contentions to the contrary.\nPlaintiffs\u2019 Cross-Appeal\nPlaintiffs assign error to the court\u2019s refusal to allow the opinion testimony of a realtor, with extensive experience appraising various types of property, as to the rental value of their land. A witness who has knowledge of value gained from experience, information, and observation, may generally give his opinion of the value of specific real property. Highway Commission v. Conrad, 263 N.C. 394, 399, 139 S.E. 2d 553, 557 (1965); 1 Stansbury\u2019s North Carolina Evidence \u00a7 128 (Brandis Rev. 1973). Here, however, the witness admitted during voir dire examination that he had never appraised river bottom land, had never sold a boathouse or marina, was not familiar with the expense of operating a boathouse, and did not hold himself out as an expert in boathouse values or rentals. Further, in arriving at the rental value opinion plaintiffs sou'ght to introduce, the witness by his own admission did not confine his appraisal to the plaintiffs\u2019 land on which defendants trespassed. In view of these facts, it was not error to exclude the proffered testimony.\nPlaintiffs also contend the court erred (1) in its instruction that the jury could consider net operating losses of the boathouses in determining fair rental value, and (2) in its refusal to instruct on damages as plaintiffs had requested. The instruction plaintiffs requested was:\nThe measure of damages ... is the rental value of the land during the period of the trespass, in addition to any other distinct damage done.\nIn determining the rental value of the land during the period of the defendants\u2019 trespass, . . . you may estimate the rental value by determining the actual rents defendants obtain from the use of the land, but the recovery by the plaintiffs is not limited to the value received by the defendants, and the defendants are liable for the actual rental value of the land and not what the defendants actually gathered from the land.\nOne measure for recovery of rental value after a trespass is \u201cthe completely objectified one for the rental value of the land during the dispossession.\u201d D. Dobbs, Remedies \u00a7 5.8, p. 366 (1973). An alternative, more subjective measure \u201callows recovery of whatever rents or profits were actually received by the trespasser from the use of the land, subject, perhaps, to deductions for certain expenses.\u201d Id. This measure is usually optional and is used only when the rent actually received exceeds the objective rental value measure. Id.\nNorth Carolina appears to allow recovery of the fair rental value unless actual rent is greater. In Credle v. Ayers, 126 N.C. 11, 35 S.E. 128 (1900), an action for ejectment with claims for mesne profits, the Supreme Court affirmed a determination of damages as the actual rental value of the land rather than the lower figure which defendant in fact collected. The implicit rationale was that the trespasser should not benefit from his \u201cwant of good husbandry [which] materially lessened the productiveness of the land.\u201d Id. at 16, 35 S.E. at 129. See also Dobbs, Trespass to Land in North Carolina Part II. Remedies for Trespass, 47 N.C.L. Rev. 334, 341-43 (1969); cf. Seligson v. Klyman, 227 N.C. 347, 42 S.E. 2d 220 (1947).\nHence, plaintiffs were entitled to the fair rental value of the property regardless of the operating losses shown by defendants. The charge on this issue was incorrect and was prejudicial to plaintiffs; and plaintiffs are therefore entitled to a new trial on the issue of damages.\nResult\nIn defendants\u2019 appeal, no error.\nIn plaintiffs\u2019 cross-appeal, new trial.\nJudges MARTIN (Robert M.) and MARTIN (Harry C.) concur.\n. Subsequent to oral argument counsel for defendants advised this court of the recent decision in Hartman v. United States, 522 F. Supp. 114, 117 (D.S.C. 1981). The United States District Court for the Rock Hill Division of South Carolina there found the waters of Lake Wylie to be navigable for purposes of determining admiralty jurisdiction. That decision does not bind this Court in determining the issue defendants attempt to present here, however; and absent record evidence, we are unable to make the determination requested.\n. An Irish lawyer named Sullivan once argued an air rights case before the highest court of Great Britain. A member of the court asked during oral argument: \u201cMr. Sullivan, have your clients not heard of the maxim, cujus est solum, ejus est usque ad coelum et ad inferos?\u201d Sullivan responded: \u201cMy lords, the peasants of Northern Ireland speak of little else.\u201d",
        "type": "majority",
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      "Harkey, Coira, Fletcher and Lambeth, by Henry Lee Harkey, Francis M. Fletcher, Jr., and Philip D. Lambeth, for defendants."
    ],
    "corrections": "",
    "head_matter": "STEEL CREEK DEVELOPMENT CORPORATION, Plaintiff, and R. S. SMITH and wife, EVELYN L. SMITH, Additional Party Plaintiffs v. EARL TERRY JAMES and MARTHA S. JAMES, d/b/a TERRY\u2019S MARINA, Defendants\nNo. 8126SC725\n(Filed 3 August 1982)\n1. Appeal and Error \u00a7 68\u2014 former appeal \u2014 law of the case\nThe decision of the Supreme Court on a prior appeal of a trespass action establishing that plaintiffs owned the submerged land on which defendants at one time affixed their boathouses became the law of the case on that issue.\n2. Waters and Water Courses \u00a7 5\u2014 navigable waters \u2014 insufficient evidence for determination\nEvidence that a lake was used for recreational boating and that small seaplanes had occasionally landed on its surface was insufficient for a deter-initiation as to whether the lake had the capacity to support \u201ctrade and travel in the usual and ordinary mode\u201d and was thus a navigable body of water.\n3. Waters and Water Courses \u00a7 3\u2014 ownership of submerged land \u2014 right to proscribe fixtures above land\nThe owner of submerged land, like the owner of dry land, owns also to the sky and to the depths. Therefore, the owners of submerged land had the right to proscribe permanent fixtures lying above such land and were entitled to enjoy the waters above such land free of defendants\u2019 boathouses.\n4. Appeal and Error \u00a7 68\u2014 prior judgment not law of the case\nIn an action in which plaintiffs alleged that defendants were trespassing both by sinking anchors onto their submerged land and by floating boathouses on the waters above it, a partial summary judgment which granted a mandatory injunction ordering removal of the anchors and which denied summary judgment on the issue of damages and the Supreme Court decision which affirmed such judgment did not become the law of the case on the issue of in-junctive relief as to the boathouses, and the superior court on remand properly ordered removal of the boathouses.\n5. Evidence \u00a7 56\u2014 rental value of submerged land \u2014 exclusion of testimony\nIn an action to recover damages for trespass by sinking anchors into plaintiffs\u2019 submerged land and by floating boathouses on the waters above it, the trial court did not err in refusing to permit a realtor who had extensive experience appraising various types of property to state his opinion as to the rental value of plaintiffs\u2019 land where the witness admitted during voir dire examination that he had never appraised river bottom land, had never sold a boathouse or marina, was not familiar with the expense of operating a boathouse, and did not hold himself out as an expert in boathouse values or rentals, and where the witness by his own admission did not confine his appraisal to the plaintiffs\u2019 land on which defendants trespassed.\n6. Trespass \u00a7 8\u2014 trespass to submerged land \u2014 damages\u2014erroneous instruction\nIn an action to recover damages for trespass by sinking anchors into plaintiffs\u2019 submerged land and floating boathouses on the waters above it, plaintiffs were entitled to the fair rental value of their property during the period of the trespass regardless of operating losses shown by defendants, and the trial court thus erred in instructing that the jury could consider net operating losses of the boathouses in determining fair rental value.\nAPPEAL by defendants and cross-appeal by plaintiffs from Gaines, Judge. Judgment entered 30 January 1981 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 11 March 1982.\nFairley, Hamrick, Monteith & Cobb, by Laurence A. Cobb and F. Lane Williamson, for plaintiffs.\nHarkey, Coira, Fletcher and Lambeth, by Henry Lee Harkey, Francis M. Fletcher, Jr., and Philip D. Lambeth, for defendants."
  },
  "file_name": "0506-01",
  "first_page_order": 538,
  "last_page_order": 547
}
