For the past ten years landowners surrounding Marshallberg Harbor have not enjoyed their Riparian Rights as guaranteed by the North Carolina and United States Constitutions. The rights to use the water as a result of the ownership of property that abuts a water body are called Riparian Rights. This water right is said to be "part and parcel" of the land, unless expressly and legally excluded from the land title. These rights have been illegally, unfairly and indiscriminately denied to the legal land owners surrounding the harbor by a group of local people. The following is a factual account of the "Walking Tall" story of Marshallberg Harbor:
And so begins the saga of Marshallberg Harbor...
Marshallberg is located in Carteret County, North Carolina at the end of Marshallberg Road, approximately 3 miles south of the village of Smyrna. Marshallberg and Smyrna are both hamlets along with Davis, Sea Level, Atlantic and Cedar Island that are collectively referred to as Down East Carteret County. Marshallberg is a quaint, unincorporated town with approximately 400 residents. The primary economy of Marshallberg has always been that of a water based industry including fishing and boat building.
The residents of Marshallberg needed a harbor for protection from the storms and prevailing winds. During the late 1940s and 1950s the Federal government instituted a program which provided harbors and channels to be dredged along the coastline of our country to bolster local economies. The Pamlico Sound to Beaufort project provided a channel connecting the southeast corner of Pamlico Sound with Beaufort via Wainwright Channel and Core Sound. Side channels were also provided to Sea Level, Davis, Atlantic and Marshallberg.
House Document 68, 81st Congress, 1st session, US House of Representatives is the documentation from the federal government which set in motion the late 1950s dredging of Marshallberg Harbor. The 31 pages of reports, descriptions and letters describe repeatedly that three elements must be provided by local interests:
- Without cost to the United States all lands, easements, rights of way and spoil areas necessary for the construction and maintenance of harbor
- Hold and save the United States free from all damages due to construction and maintenance of harbor
- At their own expense, suitable space for public landing open to all on equal terms
(House Document 68, US House of Representatives, 81st Congress, 1st Session, report by R. A. Wheeler, Chief of Engineers, recommendation by R. C. Crawford, Senior Member of Board of Engineers, recommendation by H. R. Cole, District Engineer, Corps of Engineers)
UNITED STATES CORPS OF ENGINEERS PSB 90
HOUSE DOCUMENT 68
During the late 1950s three events occurred that were necessary for the dredging of Marshallberg Harbor:
- Easement for harbor was granted.
On October 19, 1956 B. J. Jackson, Mrs. Bessie Jackson, Leah H. Hancock, I. E. Moore, Mattie Moore, Ralph W. Neal, Sallie Neal, Guy Lewis, Ella Moore Lewis, Mildon W. Willis, Hallie L. Willis and Addie M. Jones conveyed to Carteret County an easement to dredge and construct a boat harbor. The document is recorded in the Carteret County Registry at Deed Book 173, page 352. The area conveyed by the parties is as shown on Corps of Engineers, US Army, Wilmington District, File Number PSB-90.
DEED OF EASEMENT (TO THE COUNTY)
- Easement for the harbor was transferred from Carteret County to the United States of America.
On August 6, 1956 and as recorded on October 25, 1956 in the Carteret County Registry at Deed Book 169, page 505, the Carteret County Board of Commissioners granted and conveyed to the United States of America the perpetual rights and easements for the Marshallberg Harbor that it acquired in Deed Book 173, page 352.
DEED OF EASEMENT (COUNTY TO USA)
- Easement for public access to harbor was granted.
On June 1, 1957 and as recorded in the Carteret County Registry at Deed Book 179, page 109, Ralph W. Neal and wife Sallie Neal, Leah Royal Hancock, Bessie O. Jackson and husband P. J. Jackson granted to Carteret County the perpetual rights and easements to enter upon, use, manage, improve and maintain the land at the head of Marshallberg Harbor for a public landing open to all on equal terms. The land owners involved in the public landing did not transfer their fee simple interest in their land. They simply granted an easement for public access to the harbor. This public access area is from the paved road right of way to the eastern end of harbor (head of harbor) and from the north side of the harbor to the south side.
DEED OF EASEMENT (PUBLIC ACCESS)
The following exhibit illustrates what the three recorded documents created: Harbor easement lines granted to the United States of America and a public access way granted to Carteret County.
HARBOR EASEMENT LINES & PUBLIC ACCESS AREA
The harbor was dredged and later docks were built along the harbor waterfront. The real property along the harbor would remain in private hands. Leases were written for use of the waterfront along the private lands surrounding the harbor. The language in the leases speaks about the property owners not losing their land. The leases were good for a nominal amount and had language that offered full cooperation to the boat owners of the area yet the property owners maintained their private ownership. The Corps of Engineers granted approval for the proposed docks along the waterfront. The Corps also checked the docks to make sure they were built according to plan and outside of the harbor's setback lines. In the 1960's, 1970's and 1980's Marshallberg was a close knit community with few people from the outside. There was a "gentleman's agreement" regarding use of the harbor, whereby close friends of the landowners used the waterfront and respected the landowner's ownership of their real property. The landowners and the boat owners were partners sharing the waterfront without argument. At the same time the property owners knew they owned the waterfront property, paid the real estate taxes and were responsible for the their land.
BOAT DOCK CONSTRUCTION PLANS
All properties surrounding the harbor have deeds that call for the high water mark of the harbor as their boundary line. The easement acquired by the county and passed to the United States of America in the 1950s is 95% or more underwater. The harbor easement lines were laid out. The harbor was dug and the easement lines were in the water. The title to property along Marshallberg Harbor's edge rests with the landowner. No real property rights have been taken from the fee simple property owners along the harbor's edge. If real property rights had been taken, the taking would have been recorded in the courthouse for all to see.
House Document 68 from the United States Congress that began the process of creating the harbor required a public landing to be set aside. The public landing was to be open to all on equal terms. The balance of the land surrounding the harbor was and is owned by private individuals. The US government did not create a harbor without the public having access to the water. The digging of Marshallberg Harbor and the granting of easements to the government did not extinguish any real property waterfront rights belonging to the property owners on the north and south sides of the harbor. The government's guaranteed public access to the water remains to this day at the head of the harbor. See the above link entitled "HARBOR EASEMENT LINES & PUBLIC ACCESS AREA".
In the 1990s Jarrett Bay Boat Works (JBBW) moved to Marshallberg. JBBW builds large, expensive fishing boats and sells to customers around the world. It provides an invaluable employment base to the local economy. They subsequently applied for a permit to construct new docks along the JBBW waterfront on the south side of Marshallberg Harbor. By this time many of the original people who participated in the construction and operation of the harbor were no longer living or involved with the harbor. The next generation of Mashallbergers using the harbor had decided the harbor was just for them; outsiders were to be excluded, especially the likes of JBBW. A local protest was mounted to stop the JBBW application for a new and improved south side of the harbor. JBBW initially engaged those against the CAMA permit application but made the business decision to leave Marshallberg because an opportunity to relocate on Core Creek in a new, much larger facility presented itself. During this altercation the Marshallberg Community Club was formed as a private non-profit corporation.
The Marshallberg Community Club (MCC) was formed November 13, 1997. The MCC is a private club and it represents the member's private ideals, goals and interests. It is not a public entity. It does not represent the public and it does not have the power of eminent domain.
MARSHALLBERG COMMUNITY CLUB
The Marshallberg Community Club erected this sign at the head of the harbor in the not too distant past. Notice the claim that the MCC has administered the harbor since it was first dredged in 1957. As seen in the document from the North Carolina Secretary of State the club was formed in 1997. How can you administer the harbor for all those years if you were not incorporated until November, 1997?
The primary goal of the MCC is to control the use of the harbor and to restrict use of the harbor to a certain few local people and to take real property rights from the land owners adjoining the harbor. The MCC has pressed its own ways upon the landowners surrounding the harbor by different methods, including threats, fear, harassment and intimidation. The MCC wants the harbor to remain in their private hands.
MCC WANTS YOU TO YOU KNOW
For years the MCC has claimed that the easement granted by the original landowners for the dredging and maintenance of the harbor also conveyed some type of "public" access surrounding the harbor. A letter from the US Corps of Engineers legal counsel to harbor-front land owners denies the easement creates any right of public access to the harbor. The letter states "government employees and contractors are allowed to go on the property for the purposes described in the easement; however, it does not create any right of access to the public over the portions of your property which have not been cut away and removed". For the past ten years this letter has been ignored by MCC members.
LETTER FROM CORPS OF ENGINEERS
The Carteret County commissioners recently commissioned a survey of the harbor easement lines. The survey proved the lines of the easement are underwater and dispels any notion that the easement can convey rights of access along the high ground surrounding the harbor. The MCC members criminally trespass on private property to reach boats that are docked in the harbor.
Certain community club members have for years claimed that particular docks were "owned by them". Their claim follows the logic that "my daddy built this dock and when he died it passed to me". They claim ownership of a structure but lay no claim to the ground on which it is attached. They do not pay real estate or personal property taxes to Carteret County. There is no basis for such a claim in real estate law. How can you possibly own a dock and not the land to which it is adjoined?
An analogy of the situation can be summed up as follows: Your neighbor asks if he can ride a motorcycle across your land. You give him permission. You sell your land. Does the new owner of the land have to allow the neighbor to ride across his property? NO! Of course not. The permission to cross can be revoked by the new owner.
Property owners on the north side of harbor built a fence along their property lines down to the high water mark of the harbor to create a small goat pasture. During a weekend when the owners were out of town on a family trip, the MCC illegally moved in and relocated the fence to secure "their" access. The following photos describe in detail the event.
In a small town it is a sad day when neighbors turn out to trespass and vandalize private property.
The same property owner again tried to protect his property by installing posts to prohibit automobiles from crossing onto their property. The posts were set on the property line that runs along the private path to the harbor. The barricade was simply pushed over.
If one docks a boat at a pier on private property and a MCC member thinks you are in his slip, this boat gets moved. The photographs show the president of the club moving a boat to suit the MCC idea of harbor management...
The boat owners of Marshallberg Harbor rarely move their boats. Ninety percent of the boats never leave the slip. It is obvious the boats are berthed in Marshallberg Harbor to "hold" the slip. A few of the boats in the harbor have been relocated from Harker's Island to simply "hold" a slip.
Carteret County has several other "public" harbors similar to the Marshallberg Harbor. "Public" harbors are located at Cedar Island, Harker's Island, Sea Level and Davis.
HARBORS OF DOWN EAST CARTERET COUNTY
The below photograph is a Carteret County tax map view of Marshallberg Harbor. The yellow hatch area at the east end or head of the harbor is the public access dedicated to the county according to the requirements of House Document 68 and as mentioned in the above paragraph. Most of the boat owners who are using Marshallberg Harbor trespass over and across private property to reach their boats. There are, however boat owners in the harbor who are paying rent to the landowner. (Not all boat owners in Marshallberg have lost their manners.)
The Harker's Island harbor is shown in the tax map illustration below:
The yellow shaded portion is the public area dedicated to Carteret County by deed recorded in the Carteret Registry. Carteret County has provided docks and slips as seen in the photograph for rent to the commercial fishermen. All other parcels as shown in the photograph are privately owned and title is to the high water mark of the harbor.
What is the difference between the Atlantic Harbor and Marshallberg Harbor?
The Cedar Island Harbor is shown in the below picture. The yellow shaded portion is that which is dedicated to Carteret County by deed recorded in the Carteret Registry. All parcels otherwise shown in this photograph are privately owned and possess their full Riparian Rights.
What is the difference between Cedar Island Harbor and Marshallberg Harbor?
The difference is that in Marshallberg, the group of people seen in the above photographs want to take something that does not belong to them. The group is doing their dead-level best to take property rights that they have never had, nor never owned. Through a process of threats, intimidation, domination, and criminal trespass, they have torn apart, divided and polarized a once peaceful community. A certain few have caused the majority to believe that the harbor belongs to them.
There is currently a law suit testing who has the ultimate rights to the waterfront in Marshallberg Harbor. The suit is seeking an answer from the judicial system on what the easement granted to Carteret County and then to the United States of America actually means to the public at large and the property owners immediately adjacent to the harbor. This legal action touches one of the basic tenets of real property law: Riparian Rights. Black's Law Dictionary says Riparian Rights are "The right of a landowner whose property borders on a body of water or watercourse. Such landowner traditionally has the right to make reasonable use of the water". The Marshallberg Harbor waterfront landowners are denied this reasonable use. Any waterfront property owner in the country should be acutely aware of and concerned on how this suit is judged in the courts.
The lawsuit is slowly progressing through the court system and hopefully will get before a judge in fall 2007. Thus far the plaintiffs and defendants have deposed certain parties and the defendants have moved to dismiss the action. The Superior Court judge disagreed with the defendants and would not dismiss the suit. The defendants appealed that decision to the higher court. In April, their appeal was denied.
There is an item of significant interest coming from the defendants' testimony in depositions. Each and every defendant who has been deposed testified he did not own a dock or slip even though he has historically acted otherwise. The testimony of each defendant is that the harbor and docks are public and that anyone may use the docks. If a slip is empty then any boater may berth in that slip as he or she sees fit. That is in stark contrast to the photographs that show the president of the MCC moving a skiff that was "improperly" berthed in a slip. That is in stark contrast to years of experience by the folks who know how the MCC members have treated others in the harbor. And it is in stark contrast to the documents creating the harbor and docks as seen in the Corps of Engineers files. The MCC members say one thing and do another. They simply act in their private interest.
A Freedom of Information Act (FOIA) request was made to the United States Corps of Engineers for all documents relating to Marshallberg Harbor. This request produced many documents, letters and maps dating back to the 1950's and 1960's. There are 17 letters from the Corps of Engineers to individual boat owners of Marshallberg reminding each of a dock violation and reminding the boat owner that if you do not own the land you must have permission of the land owner. As example a letter dated September 16, 1958 states that Mr. Ralph Neal, property owner on the north side of the harbor has granted permission for the construction of docks along his property. A memo dated July 12, 1958 from the boat owners of Marshallberg to Mrs. Bessie Jackson requests permission to build a dock. A handwritten note of January 21, 1961 from Jackson and Hancock states that Myron Harris has their permission for a dock on their waterfront. See these documents below.
Mediation is required in all law suits in North Carolina. Mediation is according Black's Law Dictionary "a method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution". It is a time for all parties to attempt to find a solution to the argument outside of the courtroom and to avoid the time and expense of going to court.
Mediation for the Marshallberg Harbor dispute was held in New Bern. Members of each side of the dispute and all attorneys for defendants and plaintiffs met with the mediator. To find a solution to the problem was the order of the day. After receiving the instructions from the mediator, the plaintiffs (landowners) were left in one room and defendants moved to another. Carteret County is a defendant in the lawsuit. The County representatives moved back and forth working with the MCC representatives and the plaintiffs looking for common ground and a workable solution to the matter.
The plaintiffs offered to give up all their Riparian Rights to Carteret County and to honestly make the harbor a PUBLIC HARBOR. It was suggested the county build new docks and rent at the very reasonable Carteret County Harbor Commission rates. A to-scale plan was drawn illustrating the capacity of the harbor to be far greater than that needed, affording more people the opportunity to enjoy water access. Parking for 35 to 40 cars with boat trailers was offered on the south side of the harbor. The offer made by the plaintiffs was refused by the MCC. The members answer to the offer was that they were not going to pay rent to anyone. The unspoken answer is that the harbor is a private harbor controlled by the MCC and the members do not agree to make it public.
So the matter is going to court. Hopefully this matter will see the inside of a court room in September 2007. There will have been enough money spent in legal fees by all parties of the argument to again dredge Marshallberg Harbor and build new docks all around it.
At the very heart of this matter is our country's real estate law. If a property has title certified by an attorney to run to the high water mark of the adjoining body of water and the real estate taxes are paid, there is good reason to believe the Riparian Rights are secure and reasonable use of the water front should not be contested. The land owners surrounding Marshallberg Harbor since 1997 have had to move aside for neighbors and strangers to criminally trespass on their land. The land owners surrounding the harbor are at a severe disadvantage in this dispute. They have been unable to defend the title to their land. Across the United States it is understood a man's home is his castle and that he may defend his home and property.
The MCC contends the harbor is their "heritage". The members will never give up "their heritage". If this is Down East Carteret County heritage, it is a sad day for this county and this country. It is not heritage, it is a stealing of private property rights!
And the MCC contends the harbor is for the commercial fisherman. Make your own determination as to who uses this harbor. Does a commercial fisherman use a houseboat in his fishing endeavors?
This link will lead you to a letter written to the Marshallberg Community Club by a former land owner on the south side of the harbor. Read this to get some idea of how a local born and bred landowner feels about the MCC taking over the harbor.
KENNY WAYNE WILLIS LETTER TO MCC
The MCC advertises their monthly cook outs to raise money. This ad was found on the internet. There is not a line of truth in it. The easements were dedicated to the county and the county passed them to the United States of America. And the easement is underwater, so the fight is really about the high ground around the water. And the commercial fishermen? Don't forget the houseboat.
MCC AD FOUND ON WEB
So... the next time you get ready to hand over your money for a contribution to the Marshallberg Community Club, think about it. Do you support an attempt to take something for nothing? Do you support a criminal trespass on private property? Do you support a group that publishes a document such as "What the Marshallberg Community Club Wants You to Know"?
In mediation the MCC was given the opportunity to have a true PUBLIC HARBOR with minimal rent and first class new docks. The offer was rejected. What more could have been done?