Precedent could be set with ruling on easement

One way or another, the handling of a controversial Trent River easement that is held by a New Bern hotel could set a precedent in North Carolina law.

The Sheraton hotel downtown has an easement to the river for its marina, but does not own the strip of riparian- or water-adjacent- land that is associated with those rights. The holder of those easement rights may ultimately determine whether 250 boat slips at the hotel marina can be sold, leased to one occupant for 50 years or more, or must remain available for public use.

The state has told the city of New Bern, which does own the riparian land, to solve the problem. New Bern's attorney in the matter, C. Gordon Brown of Chapel Hill, has said that the city has upheld its obligations and needs to let the hotel and the state find a resolution.

The state's expert on riparian rights, Joseph Kalo, says Brown is misinterpreting the case that is the foundation of North Carolina laws that govern public waters.

Brown has defended his advice this month, saying he studied "very carefully" a Shepard's Point vs. Atlantic Hotel decision from the early 1900s that could have bearing on what happens on the Trent River. And again this month, Kalo says he disagrees with Brown's analysis and finds it "very troubling" and misleading.

Brown is considered a contract expert. Kalo is the co-director of the North Carolina Center for Coastal Policy and a law professor at the University of North Carolina at Chapel Hill.

They agree on at least one thing: The North Carolina Supreme Court has never ruled on a case quite like the one shaping up in New Bern.

"Until the North Carolina Supreme Court rules directly on the issue, lawyers may have different opinions as to whether North Carolina follows the minority view on the severability of riparian rights," Brown said in a July memorandum to Mayor Tom Bayliss and the city aldermen.

"Let us underscore the point we emphasized to the board (in) June: Based on North Carolina law in 1985, it was reasonable for the lawyers involved in the Disposition and Development Agreement to determine that the perpetual easement granted ... gave the (hotel) developer riparian rights to access and to attach to the bulkhead so that the marina could be built," Brown said.

Kalo believes that a case like this hasn't come to the North Carolina Supreme Court because the state's law on access rights to public waters is clear.

"It is true that there is no North Carolina Supreme Court case in which an existing riparian owner attempted to sever existing rights with the court holding that it was not permissible," Kalo said in a written statement. "But I would argue that the case has not arisen because it has been generally understood that riparian rights pass only with title to the adjacent riparian lands."

It isn't yet clear what will happen to the Trent River easement in New Bern. The state has said that the current easement was issued on the basis of a "mistake of fact" as to who owns the waterfront land and has said that the city and hotel have to work things out in a reasonable time or the hotel's easement could be revoked.

Calls and messages to the state Attorney General's Office in regard to this matter have gone unreturned for weeks.