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www.nccoastallaw.org A Collaboration of North Carolina Sea Grant, UNC School of Law and UNC Department of City and Regional Planning Planning Regional and City of Department UNC and Law of School UNC Grant, Sea Carolina North of Collaboration A

North Carolina Sea Grant U.S. Postage

the pre-project mean high water mark mark water high mean pre-project the

in fact, open to public use. The question question The use. public to open fact, in North Carolina State University PAID had the right to use the area to which which to area the use to right the had

Nieses’ property had been extended from from extended been had property Nieses’

all dry-sand beaches of the State were, were, State the of beaches dry-sand all Box 8605 Raleigh, NC Their contention was that the public only only public the that was contention Their

2003, the dry-sand beach in front of the the of front in beach dry-sand the 2003, directly addressed the question of whether whether of question the addressed directly Raleigh, NC 27695-8605 Permit No. 896

dry-sand beach to which they held title. title. held they which to beach dry-sand

When the project was completed in in completed was project the When case, no North Carolina court opinion opinion court Carolina North no case,

not have a right to use that portion of the the of portion that use to right a have not

of its many beach nourishment projects. projects. nourishment beach many its of Nies the in decision Court’s the Until

the Nieses’ contention that the public did did public the that contention Nieses’ the

the property, the Town engaged in one one in engaged Town the property, the sand beach. sand

, it was was it , Isle Emerald of Town v. Nies In

Not long after the couple purchased purchased couple the after long Not landowner’s legal title includes the dry- the includes title legal landowner’s

such raised lands are open to public use. use. public to open are lands raised such

or first line of vegetation and the water. the and vegetation of line first or the dry-sand beach even if the private private the if even beach dry-sand the

owner. And the statute makes clear that that clear makes statute the And owner.

area lying between the foot of the dunes dunes the of foot the between lying area exclude the public from any portion of of portion any from public the exclude

that of the adjacent oceanfront property property oceanfront adjacent the of that

meant that it included the dry-sand beach beach dry-sand the included it that meant Private oceanfront landowners cannot cannot landowners oceanfront Private

funds are the property of the State and not not and State the of property the are funds

to the mean high water mark, which which mark, water high mean the to of the State’s ocean waters and shorelines. shorelines. and waters ocean State’s the of

nourishment project paid for with public public with for paid project nourishment

by the couple, their title extended seaward seaward extended title their couple, the by use for purposes related to the enjoyment enjoyment the to related purposes for use

provides that lands raised by a beach beach a by raised lands that provides

(Town). According to the deed received received deed the to According (Town). natural or nourished, are open to public public to open are nourished, or natural

General Statute 146-6(f) specifically specifically 146-6(f) Statute General

lot located in the Town of Emerald Isle Isle Emerald of Town the in located lot that all the dry-sand beaches, whether whether beaches, dry-sand the all that

State as public trust lands. North Carolina Carolina North lands. trust public as State

couple, the Nieses, of an oceanfront oceanfront an of Nieses, the couple, Court. For now, what this case means is is means case this what now, For Court.

was owned by the State and held by the the by held and State the by owned was

in the 2001 purchase by a New Jersey Jersey New a by purchase 2001 the in petitioned this case to the N.C. Supreme Supreme N.C. the to case this petitioned

the pre-project mean high water mark mark water high mean pre-project the

litigation has its origins origins its has litigation Nies The In late January 2016, the plaintiffs plaintiffs the 2016, January late In

to the newly created portion seaward of of seaward portion created newly the to

Emerald Isle Emerald subject to public trust rights.” rights.” trust public to subject

was, and remained, with the Nieses. Title Title Nieses. the with remained, and was,

Nies vs. Town of of Town vs. Nies Background of of Background “ocean beaches of North Carolina … are are … Carolina North of beaches “ocean

of the pre-project mean high water mark mark water high mean pre-project the of

the Court unqualifiedly held that the the that held unqualifiedly Court the

sand beach. Title to the portion landward landward portion the to Title beach. sand may play a role in the outcome. the in role a play may

, , Isle Emerald of Town v. Nies In existed.

ownership of these two parts of the dry- the of parts two these of ownership litigation in which the public’s right of use use of right public’s the which in litigation

people of North Carolina long knew knew long Carolina North of people

Legally, there was no dispute over the the over dispute no was there Legally, decision and its implications for other other for implications its and decision

confirmed a common law right that the the that right law common a confirmed

the nourishment project. nourishment the Nies the examine will article This

issued on that day, the court expressly expressly court the day, that on issued

and a new post-project beach created by by created beach post-project new a and answered.

North Carolina Court of Appeals opinion opinion Appeals of Court Carolina North

included the pre-project dry-sand beach beach dry-sand pre-project the included before it. Now the question has been been has question the Now it. before

the legal community. In a unanimous unanimous a In community. legal the

Nieses’ property consisted of an area that that area an of consisted property Nieses’ answer it in order to resolve the litigation litigation the resolve to order in it answer

date for the people of North Carolina and and Carolina North of people the for date

result, the dry-sand beach in front of the the of front in beach dry-sand the result, different reasons, the court did not have to to have not did court the reasons, different limited to recreational activities. recreational to limited use.

beach seaward of the pre-project mean pre-project the of seaward beach N

ov. 17, 2015, was a very important very a was 2015, 17, ov.

to a new mean high water mark. As a a As mark. water high mean new a to had arisen in past cases but each time, for for time, each but cases past in arisen had 5. Public trust uses or rights are not are rights or uses trust Public 5. property but also remains open to public to open remains also but property

completed, title to all of the newly created newly the of all to title completed,

the private property of the oceanfront the of property private the

engaged in on ocean beaches. ocean on in engaged nourishment project, once the project is project the once project, nourishment

pre-project high water mark remains mark water high pre-project

for their review and comments on this article; and to NCCRLPPC law fellow James King for his research assistance. assistance. research his for King James fellow law NCCRLPPC to and article; this on comments and review their for

which North Carolinians have historically historically have Carolinians North which 9. If a beach has been the object of a of object the been has beach a If 9.

Thanks to NCCRLPPC Advisory Board members Allen Jernigan, N.C. Department of Justice, Ret., and Merri Jo Alcoke, Ward and Smith, Smith, and Ward Alcoke, Jo Merri and Ret., Justice, of Department N.C. Jernigan, Allen members Board Advisory NCCRLPPC to Thanks .A., .A., P dry-sand beach lying landward of the of landward lying beach dry-sand

horseback riding, beach driving, etc. — — etc. driving, beach riding, horseback

authorities.

Any portion of the of portion Any owner. property

GRAHAM KENAN PROFESSOR OF LAW EMERITUS AT THE UNC SCHOOL OF LAW OF SCHOOL UNC THE AT EMERITUS LAW OF PROFESSOR KENAN GRAHAM KALO, J. JOSEPH BY

fishing, hunting, volleyball playing, playing, volleyball hunting, fishing,

authorized, by local government government local by authorized,

boundary of the affected oceanfront affected the of boundary

’ Carolina North of All Use to Beaches y-sand r D s of recreational activities — sunbathing, sunbathing, — activities recreational of

to regulation by the State and, where where and, State the by regulation to

mean high mark remains the seaward the remains mark high mean

4. Public trust uses include all manner all include uses trust Public 4.

8. The public right of use is subject is use of right public The 8.

A Judicial Affirmation of the Public the of Affirmation Judicial A Right Law Common s ’ nourishment project, the pre-project the project, nourishment

rights” or “customary public trust rights.” trust public “customary or rights”

waters are also open to public trust uses. trust public to open also are waters 10. After completion of a beach a of completion After 10.

uses,” also referred to as “public trust “public as to referred also uses,”

7. These state-owned public trust lands and lands trust public state-owned These 7.

public trust land open to public use. public to open land trust public

Winter 2016 Winter Center Policy and Planning Law, Resources Coastal Carolina North the From

• beach for what are called “public trust “public called are what for beach

the State as “public trust lands and waters.” and lands trust “public as State the newly created beach is State-owned State-owned is beach created newly

LEGAL TIDES LEGAL the use to right public’s the recognizing

lands lying under ocean waters is held by held is waters ocean under lying lands high water mark is in the State. That That State. the in is mark water high

The use of that label is simply a way of way a simply is label that of use The

to the wet-sand beach and all submerged all and beach wet-sand the to

referred to as the “public trust beach.” trust “public the as to referred

electronically, or by regular mail. regular by or electronically,

referred to as the wet-sand beach. T beach. wet-sand the as to referred itle

portion, or “foreshore” — is often is — “foreshore” or portion,

Legal T Legal receive to want you if know Lisa ides lands and waters, which includes the area the includes which waters, and lands

beach — together with the wet-sand the with together — beach

Box 8605, Raleigh, NC 27695-8605. Let Let 27695-8605. NC Raleigh, 8605, Box

water mark is public trust submerged trust public is mark water

of use. Accordingly a natural dry-sand natural a Accordingly use. of

Carolina Sea Grant, NC State University, State NC Grant, Sea Carolina

6. The area seaward of the mean high mean the of seaward area The 6.

encumbered by a customary public right public customary a by encumbered

Legal T Legal to: write Or 1895. th th Nor , ides

hauling and drying nets. drying and hauling exclude the public. That private title is title private That public. the exclude or 919-515- or [email protected] at

use, including the launching of boats, and and boats, of launching the including use, beach does not include the right to right the include not does beach or suggest topics, contact Lisa Schiavinato Schiavinato Lisa contact topics, suggest or

, comment on articles, articles, on comment , Tides Legal receive To Commercial fishing also is a public trust trust public a is also fishing Commercial 3. The private title to a natural dry-sand natural a to title private The 3. the State held title — the raised lands to driving on the beach in some areas. implication in others.4 The absence of to use all or some portion of the land. Therefore the ordinance limiting driving the authority to enforce public trust rights. seaward of the pre-project line. Therefore it may seem strange to North that express affirmation left it open for The most typical situation is when one on the beach to the period from Sept. Although, in 2014 the General Assembly The specific event that culminated in Carolinians that the existence of the some oceanfront property owners to claim person has an easement over the land 15 to the following April 30 did not subsequently enacted legislation giving the Nieses filing suit against the Town public right could even be an issue. that North Carolina law was the same as of another. Where such an easement create a right to drive. The ordinance in cities authority to enforce ordinances was the adoption of ordinances that To understand this, three things must that of the states that allowed oceanfront exists, the landowner cannot exclude the fact restricted and regulated the public within public trust areas, that authority prohibited the placement of any beach be kept in mind. One is that the beautiful property owners to exclude the public person or persons holding the easement. right to drive on the beach, a right that did not “apply to removal of permanent equipment, at any time, “within an area North Carolina coast attracts many people from the dry-sand beach. Now, that is no In legal parlance, the right to exclude the the public already enjoyed. Because the residential or commercial structures … twenty (20) feet seaward of the base of from all over the country. Some come as longer the case. easement holder in that situation is not Town shared the same right as the public from the State’s ocean beaches.”9 So, the frontal dunes.” The justification for vacationers; many others are visitors who North Carolina Court of Appeals Nies one of the “bundle of rights” that passed to drive on the dry sand, the ordinance until that impediment is lifted, coastal the prohibition was the Town’s public- become permanent residents. Decision to the landowner upon receiving title. reserving a 20-foot-wide strip was communities still lack the necessary safety need “to maintain an unimpeded Second, in the majority of coastal Because the Court of Appeals held authority to force the removal of houses The core of the Nieses’ case was their deemed to also be a valid exercise of the vehicle travel lane for emergency services states, unless the dry-sand beach is that the public has a customary public stranded on the dry-sand beaches. As to objection to the Town’s ordinances that Town’s police powers regulating that personnel and other Town personnel a nourished one, not only does the trust right to use all the dry-sand beaches the second issue, the law is now clear that (1) allowed the public to drive on the dry- activity. providing essential services on the beach oceanfront property owner’s title include of the State, any title that any oceanfront the public trust beach includes the dry- sand beach during the period from Sept. The Nies Decision and Houses on the strand.” Because this 20-foot-wide lane the dry-sand beach, but the oceanfront owner, such as the Nieses, received to sand area. Therefore, if erosion results 15 until April 30 of the following year and Beach would be located on that part of the property owner can exclude the public the dry sand did not carry with it the in a house ending up on the dry-sand (2) reserved, during the period between The rights of private oceanfront dry-sand beach to which the Nieses held from the dry-sand beach.2 So some of right to exclude the public. That was beach, its presence would interfere with May 1 and Sept. 14, a 20-foot-wide travel property owners and the public’s right to title, the Nieses strongly objected to the our visitors and new permanent residents not part of the bundle of rights inherent the public’s customary right to use the lane along the dunes, for exclusive use use the dry-sand beach conflict in settings restriction imposed by the ordinance. In arrive with the misunderstanding that the in their title. The public, however, may dry sand and the State, as the enforcer by municipal vehicles. Because both of other than the one in Nies. A common one their complaint filed in 2011, the Nieses law of North Carolina is the same as the only use the privately owned dry-sand of public trust rights, could take action these activities would result in vehicles is when, due to storm and wave activity, asserted that the ordinance constituted an law of the states from which they come. portion of the beach for what are referred to compel the removal of the offending crossing that portion of the beach to the shoreline erodes and houses, once unconstitutional taking of their property When they look to the beach in front of to as “public trust uses.” If the particular structure. which the Nieses held title, the Nieses nested safely behind protective dunes, without compensation. their residence and see members of the activity does not qualify as a public asserted that their right to exclude the end up on what is the dry-sand beach. A Brief Summary of the Ownership and In 2014, the Town filed a motion for public on the dry sand, they mistakenly trust use, then the public has no right public from their private lands was The question then is: in order to protect Right to Use Ocean Beaches summary judgment in the Superior Court think that the public is trespassing on to engage in that activity on privately being taken by the Town of Emerald Isle the public right to use the dry-sand beach, With the legal clarity the Nies decision for Carteret County, which the trial court private property and should be kicked off. owned dry-sand beaches and the person without just compensation in violation what authority does a municipality or the provides — pending any decision the granted in August of that year. The Nieses The third thing is a previous lack of holding title can exclude and stop that of the Fifth Amendment to the United State have to force the owners of such N.C. Supreme Court makes, if they take then appealed that order to the Court of legal clarity in the decisions of the North activity. Furthermore, if the town or State States Constitution and the due process structures to move them off the dry-sand the case — the legal framework that Appeals, which affirmed the decision of Carolina courts.3 The public knows it prevents the landowner from excluding clause of the North Carolina Constitution. beach? That issue has been litigated in describes our ocean beaches and their the trial court. has the right to use the dry-sand beaches anyone engaged in such an activity, then In order to prevail under this theory, the cases involving the Town of Nags Head.7 uses is as follows: but, until the Nies decision, no North that would be a governmental taking The Public Right to Use All the Dry-sand Nieses needed to establish that, under The Town of Nags Head ended up settling Carolina appellate court had specifically of a private property right for which 1. The dry-sand beach is defined as Beaches in the State of North Carolina North Carolina law, in the absence of the these cases.8 affirmed the public’s right to use all compensation is constitutionally required. extending from the mean high water mark To North Carolinians, it seems almost Town ordinances they had a common law Two central questions arose in those the dry-sand beaches within the State, Therefore, the second key issue for the landward to “the foot of the most seaward axiomatic that the public has the right to property right to prevent beach driving cases:(1) whether only the State could although the right to use the dry-sand Court was whether beach driving was a dunes, if dunes are present; the regular freely use and enjoy the dry-sand beaches on that portion of the beach to which they enforce public trust rights and (2) whether beach was strongly suggested in some public trust use. vegetation line, if natural vegetation is of the State for all types of coastal held title. the public trust beach included the dry cases, or was apparent by necessary Because there is a long history on present; or the storm debris line.” These recreational activities,1 ranging from sun As a general matter, several sand or was limited to the wet-sand area. Emerald Isle5 (and elsewhere in North dry-sand areas are also called “ocean bathing, to fishing, to horseback, and even fundamental common law rights are On the first issue, the courts ruled against Carolina6) of the public driving on the beaches” in a number of state statutes and 2 In many states, the public has no general embedded in a landowner’s title to land. the Town of Nags Head, holding that, dry sand, the Court concluded this was coastal development regulations. 1 In fact, the Nies court took judicial notice of right to freely use all natural dry-sand beaches for The most basic is the right to exclude under North Carolina law, only the State, the fact “that the public right of access to the dry- recreational or commercial purpose. one of the customary rights of the public. others from the land. But this right is acting through the Attorney General, has 2. If the dry-sand beach is a natural beach, sand beaches in North Carolina is so firmly rooted 3 For example, when our Supreme Court an oceanfront property owner’s legal title in the custom and history of North Carolina that confirmed the public trust right to drive on the not absolute because others may also 5 Nies v. Town of Emerald Isle, 2015 N.C. App. it has become part of the public consciousness. “foreshore” between the mean high and low have by grant or common law the right LEXIS 958, 5 (N.C. Ct.App. Nov. 17, 2015). 7 Town of Nags Head v. Cherry, Inc., 723 S.E.2d includes all of the dry-sand beach to the Native-born North Carolinians do not generally water marks of the ocean beach in West v. Slick, 6 West v. Slick, 313 N.C. 33, 326 S.E.2d 601, 156 (N.C. Ct. of App. 2012). mean high water mark unless instrument question whether the public has the right to move it necessarily included driving on the dry-sand 4 See e.g., Concerned Citizens of Brunswick 618 (N.C. 1985) (“Therefore, we once again 8 See Rob Morris, Seagull Drive Legal of conveyance states otherwise. freely between the wet-sand and dry-sand portions beach, because it is practically impossible to tell County Taxpayers Ass’n v. State, 329 N.C. 37 affirm the rule that passage by the public by foot, saga finally ends with a $1.5 million deal, of our ocean beaches.” Nies v. Town of Emerald where the foreshore stops and the dry-sand beach (1991), West v. Slick, 313 N.C. 33, 326 S.E.2d vehicle and boat must be free and substantially The Outer Banks Voice, Mar. 22, 2015, http:// Isle, 2015 N.C. App. Lexis 958, 19 (N.C. Ct. App. starts. 313 N.C. 33, 326 S.E.2d 601, 618 (N.C. 601, 618 (N.C. 1985), and Fabrikant v. Currituck unobstructed over the entire width of the outerbanksvoice.com/2015/03/22/seagull-drive- 9 “Ocean beaches” are defined as including the Nov. 17, 2015). 1985). County, 174 N.C. App. 30 (2005). foreshore…”). legal-saga-finally-ends-with-a-1-5-million-deal/. dry-sand area. NCGS 160A-205.

Page 2 • LEGAL TIDES • Winter 2016 Page 3 • LEGAL TIDES • Winter 2016 the State held title — the raised lands to driving on the beach in some areas. implication in others.4 The absence of to use all or some portion of the land. Therefore the ordinance limiting driving the authority to enforce public trust rights. seaward of the pre-project line. Therefore it may seem strange to North that express affirmation left it open for The most typical situation is when one on the beach to the period from Sept. Although, in 2014 the General Assembly The specific event that culminated in Carolinians that the existence of the some oceanfront property owners to claim person has an easement over the land 15 to the following April 30 did not subsequently enacted legislation giving the Nieses filing suit against the Town public right could even be an issue. that North Carolina law was the same as of another. Where such an easement create a right to drive. The ordinance in cities authority to enforce ordinances was the adoption of ordinances that To understand this, three things must that of the states that allowed oceanfront exists, the landowner cannot exclude the fact restricted and regulated the public within public trust areas, that authority prohibited the placement of any beach be kept in mind. One is that the beautiful property owners to exclude the public person or persons holding the easement. right to drive on the beach, a right that did not “apply to removal of permanent equipment, at any time, “within an area North Carolina coast attracts many people from the dry-sand beach. Now, that is no In legal parlance, the right to exclude the the public already enjoyed. Because the residential or commercial structures … twenty (20) feet seaward of the base of from all over the country. Some come as longer the case. easement holder in that situation is not Town shared the same right as the public from the State’s ocean beaches.”9 So, the frontal dunes.” The justification for vacationers; many others are visitors who North Carolina Court of Appeals Nies one of the “bundle of rights” that passed to drive on the dry sand, the ordinance until that impediment is lifted, coastal the prohibition was the Town’s public- become permanent residents. Decision to the landowner upon receiving title. reserving a 20-foot-wide strip was communities still lack the necessary safety need “to maintain an unimpeded Second, in the majority of coastal Because the Court of Appeals held authority to force the removal of houses The core of the Nieses’ case was their deemed to also be a valid exercise of the vehicle travel lane for emergency services states, unless the dry-sand beach is that the public has a customary public stranded on the dry-sand beaches. As to objection to the Town’s ordinances that Town’s police powers regulating that personnel and other Town personnel a nourished one, not only does the trust right to use all the dry-sand beaches the second issue, the law is now clear that (1) allowed the public to drive on the dry- activity. providing essential services on the beach oceanfront property owner’s title include of the State, any title that any oceanfront the public trust beach includes the dry- sand beach during the period from Sept. The Nies Decision and Houses on the strand.” Because this 20-foot-wide lane the dry-sand beach, but the oceanfront owner, such as the Nieses, received to sand area. Therefore, if erosion results 15 until April 30 of the following year and Beach would be located on that part of the property owner can exclude the public the dry sand did not carry with it the in a house ending up on the dry-sand (2) reserved, during the period between The rights of private oceanfront dry-sand beach to which the Nieses held from the dry-sand beach.2 So some of right to exclude the public. That was beach, its presence would interfere with May 1 and Sept. 14, a 20-foot-wide travel property owners and the public’s right to title, the Nieses strongly objected to the our visitors and new permanent residents not part of the bundle of rights inherent the public’s customary right to use the lane along the dunes, for exclusive use use the dry-sand beach conflict in settings restriction imposed by the ordinance. In arrive with the misunderstanding that the in their title. The public, however, may dry sand and the State, as the enforcer by municipal vehicles. Because both of other than the one in Nies. A common one their complaint filed in 2011, the Nieses law of North Carolina is the same as the only use the privately owned dry-sand of public trust rights, could take action these activities would result in vehicles is when, due to storm and wave activity, asserted that the ordinance constituted an law of the states from which they come. portion of the beach for what are referred to compel the removal of the offending crossing that portion of the beach to the shoreline erodes and houses, once unconstitutional taking of their property When they look to the beach in front of to as “public trust uses.” If the particular structure. which the Nieses held title, the Nieses nested safely behind protective dunes, without compensation. their residence and see members of the activity does not qualify as a public asserted that their right to exclude the end up on what is the dry-sand beach. A Brief Summary of the Ownership and In 2014, the Town filed a motion for public on the dry sand, they mistakenly trust use, then the public has no right public from their private lands was The question then is: in order to protect Right to Use Ocean Beaches summary judgment in the Superior Court think that the public is trespassing on to engage in that activity on privately being taken by the Town of Emerald Isle the public right to use the dry-sand beach, With the legal clarity the Nies decision for Carteret County, which the trial court private property and should be kicked off. owned dry-sand beaches and the person without just compensation in violation what authority does a municipality or the provides — pending any decision the granted in August of that year. The Nieses The third thing is a previous lack of holding title can exclude and stop that of the Fifth Amendment to the United State have to force the owners of such N.C. Supreme Court makes, if they take then appealed that order to the Court of legal clarity in the decisions of the North activity. Furthermore, if the town or State States Constitution and the due process structures to move them off the dry-sand the case — the legal framework that Appeals, which affirmed the decision of Carolina courts.3 The public knows it prevents the landowner from excluding clause of the North Carolina Constitution. beach? That issue has been litigated in describes our ocean beaches and their the trial court. has the right to use the dry-sand beaches anyone engaged in such an activity, then In order to prevail under this theory, the cases involving the Town of Nags Head.7 uses is as follows: but, until the Nies decision, no North that would be a governmental taking The Public Right to Use All the Dry-sand Nieses needed to establish that, under The Town of Nags Head ended up settling Carolina appellate court had specifically of a private property right for which 1. The dry-sand beach is defined as Beaches in the State of North Carolina North Carolina law, in the absence of the these cases.8 affirmed the public’s right to use all compensation is constitutionally required. extending from the mean high water mark To North Carolinians, it seems almost Town ordinances they had a common law Two central questions arose in those the dry-sand beaches within the State, Therefore, the second key issue for the landward to “the foot of the most seaward axiomatic that the public has the right to property right to prevent beach driving cases:(1) whether only the State could although the right to use the dry-sand Court was whether beach driving was a dunes, if dunes are present; the regular freely use and enjoy the dry-sand beaches on that portion of the beach to which they enforce public trust rights and (2) whether beach was strongly suggested in some public trust use. vegetation line, if natural vegetation is of the State for all types of coastal held title. the public trust beach included the dry cases, or was apparent by necessary Because there is a long history on present; or the storm debris line.” These recreational activities,1 ranging from sun As a general matter, several sand or was limited to the wet-sand area. Emerald Isle5 (and elsewhere in North dry-sand areas are also called “ocean bathing, to fishing, to horseback, and even fundamental common law rights are On the first issue, the courts ruled against Carolina6) of the public driving on the beaches” in a number of state statutes and 2 In many states, the public has no general embedded in a landowner’s title to land. the Town of Nags Head, holding that, dry sand, the Court concluded this was coastal development regulations. 1 In fact, the Nies court took judicial notice of right to freely use all natural dry-sand beaches for The most basic is the right to exclude under North Carolina law, only the State, the fact “that the public right of access to the dry- recreational or commercial purpose. one of the customary rights of the public. others from the land. But this right is acting through the Attorney General, has 2. If the dry-sand beach is a natural beach, sand beaches in North Carolina is so firmly rooted 3 For example, when our Supreme Court an oceanfront property owner’s legal title in the custom and history of North Carolina that confirmed the public trust right to drive on the not absolute because others may also 5 Nies v. Town of Emerald Isle, 2015 N.C. App. it has become part of the public consciousness. “foreshore” between the mean high and low have by grant or common law the right LEXIS 958, 5 (N.C. Ct.App. Nov. 17, 2015). 7 Town of Nags Head v. Cherry, Inc., 723 S.E.2d includes all of the dry-sand beach to the Native-born North Carolinians do not generally water marks of the ocean beach in West v. Slick, 6 West v. Slick, 313 N.C. 33, 326 S.E.2d 601, 156 (N.C. Ct. of App. 2012). mean high water mark unless instrument question whether the public has the right to move it necessarily included driving on the dry-sand 4 See e.g., Concerned Citizens of Brunswick 618 (N.C. 1985) (“Therefore, we once again 8 See Rob Morris, Seagull Drive Legal of conveyance states otherwise. freely between the wet-sand and dry-sand portions beach, because it is practically impossible to tell County Taxpayers Ass’n v. State, 329 N.C. 37 affirm the rule that passage by the public by foot, saga finally ends with a $1.5 million deal, of our ocean beaches.” Nies v. Town of Emerald where the foreshore stops and the dry-sand beach (1991), West v. Slick, 313 N.C. 33, 326 S.E.2d vehicle and boat must be free and substantially The Outer Banks Voice, Mar. 22, 2015, http:// Isle, 2015 N.C. App. Lexis 958, 19 (N.C. Ct. App. starts. 313 N.C. 33, 326 S.E.2d 601, 618 (N.C. 601, 618 (N.C. 1985), and Fabrikant v. Currituck unobstructed over the entire width of the outerbanksvoice.com/2015/03/22/seagull-drive- 9 “Ocean beaches” are defined as including the Nov. 17, 2015). 1985). County, 174 N.C. App. 30 (2005). foreshore…”). legal-saga-finally-ends-with-a-1-5-million-deal/. dry-sand area. NCGS 160A-205.

Page 2 • LEGAL TIDES • Winter 2016 Page 3 • LEGAL TIDES • Winter 2016