At common law land covered by water was the subject of grant except where the tide ebbed and flowed, and so it was in this State in the year 1839, the former legislative restrictions having been repealed by the act of 1839, and not reenacted until the session of 1839-40.
RUFFIN, C. J.
His Honor probably founded his opinion that the grants to the plaintiff were void upon Laws 1715, Rev. Code, ch. 6, sec. 3, and of 1777, ch. 114, sec. 10, which directed how land lying on a navigable water should be entered and surveyed, not adverting to the circumstance that those provisions were not in force in 1839, when the grants were issued. Whether the locus in quo would have been the subject of entry or not, under those acts, it is not material to inquire; for the Revised Statutes, ch. 42, omits the actions under consideration, and so left the matter at common law. Now, at common law this land could clearly be granted by the sovereign, for this case does not state any regular flood and ebb of the tide in Currituck Sound since the closing of the inlet. The omission in the act of 1836 has been supplied by an act at the late session of the Assembly which reenacts those parts of the acts of 1715 and 1777; but while they were dormant, and the common law alone in force, the grants to the plaintiff (141) were valid.
The judgment must, therefore, be
PER CURIAM. Reversed.
Cited: Ward v. Willis, 51 N.C. 184; Bond v. Wool, 107 N.C. 149; S. v. Eason, 114 N.C. 791; Land Co. v. Hotel Co., 132 N.C. 522.