The opinion of the court was delivered by: Lewis, Judge.
Appeal by plaintiffs from orders entered 23 September 1996, 6 January 1997, and 29 January 1997 by Judge James E. Ragan, III in Dare County Superior Court. Heard in the Court of Appeals 3 December 1997.
This case involves a dispute over the ownership of approximately ten acres of land located on Hatteras Island in Dare County ("the Property"). The Property is described in a deed dated 8 March 1897 ("1897 Deed"), which reads: Treasury Department Life-Saving Station -- Form No. 12.
Whereas, The SECRETARY OF THE TREASURY has been authorized by law to establish the LIFE-SAVING STATION herein described; And whereas, Congress, by Act of March 3, 1875, provided as follows, viz.: "And the Secretary of the Treasury is hereby authorized, whenever he shall deem it advisable, to acquire, by donation or purchase, in behalf of the United States, the right to use and occupy sites for life-saving or life-boat stations, houses of refuge, and sites for pier-head Beacons, the establishment of which has been, or shall hereafter be, authorized by Congress;" And whereas, the said Secretary of the Treasury deems it advisable to acquire, on behalf of the United States, the right to use and occupy the hereinafter-described lot of land as a site for a Life-Saving Station, as indicated by his signature hereto: Now, this Indenture between Jessie B. Etheridge, party of the first part, and the United States, represented by the Secretary of the Treasury, party of the second part, WITNESSETH that the said party of the first part, in consideration of the sum of two hundred dollars by these presents grant[s], demise[s], release[s], and convey[s] unto the said United States all that certain lot of land situate in Nags Head Township, County of Dare and State of North Carolina, and thus described and bounded: Beginning at a cedar post bearing from the South West corner of the Oregon Life Saving Station South 40ø West and distant 28.24 chains from said post South 68 West 10 chains to post, thence South 22ø E. 10 chains to post. Thence North 68ø E. 10 chains to post. Thence North 22ø W. 10 chains to first Station containing 10 acres, be the contents what they may, with full right of egress and ingress thereto in any direction over other lands of the grantor by those in the employ of the United States, on foot or with vehicles of any kind, with boats or any articles used for the purpose of carrying out the intentions of Congress in providing for the establishment of Life-Saving Stations, and the right to pass over any lands of the grantor in any manner in the prosecution of said purpose; and also the right to erect such structures upon the said land as the United States may see fit, and to remove any and all such structures and appliances at any time; the said premises to be used and occupied for the purposes named in said Act of March 3, 1875: To have and to hold the said lot of land and privileges unto the United States from this date. And the said party of the first part for himself, executors, and administrators do[es] covenant with the United States to warrant and defend the peaceable possession of the above-described premises to the United States, for the purposes above named, for the term of this covenant, against the lawful claims of all persons claiming by, through, or under Jessie B. Etheridge. And it is further stipulated, that the United States shall be allowed to remove all buildings and appurtenances from the said land whenever it shall think proper, and shall have the right of using other lands of the grantor for passage over the same in effecting such removal. In witness whereof, the parties hereto have set their hands and seals this 8th day of March, A.D. eighteen hundred and ninety-seven.
Signed, sealed, and delivered in presence of--
(s)L.J. Gage Secretary of the Treasury
The underlined words were handwritten in the original. The rest were preprinted on the form.
After the 1897 conveyance, the Life Saving Service, a part of the United States Treasury Department, began operating a lifesaving station on the Property. Sometime before 1915, the Life Saving Service became part of the newly created Coast Guard, which was also administered by the Treasury Department. The Coast Guard continued to operate on the Property a lifesaving station known as the Oregon Inlet Coast Guard Station.
In 1938, the United States condemned a large tract of land in Dare County to create the Pea Island Migratory Waterfowl Refuge. The Property at issue in this case was within the metes and bounds description of that tract, but it was expressly excluded from the 1938 condemnation.
In 1959, the United States condemned a series of tracts in Dare County for the purpose of including them within the Cape Hatteras National Seashore Recreational Area. The Declaration of Taking states that the land selected for acquisition includes
those certain tracts of land known in the land acquisition records of the Cape Hatteras National Seashore Recreational Area as Tracts 101-B, 101-C, 301, 302, [et al.] . . . more particularly described in exhibits attached hereto and made a part hereof as Exhibits A through P and maps attached hereto and made a part hereof . . . .
The Declaration further states that "the estate taken for said public use is the full fee simple title in and to the said lands." Among the exhibits attached to the Declaration of Taking is Exhibit P, which states that one of the tracts to be condemned was
That portion of the Hatteras Section within Kinnakeet Township as depicted on said Drwg. No. NRA-CH-7017-B as comprising the Pea Island National Wildlife Refuge which, pursuant to Section 5 of the act of August 17, 1937 (50 Stat. 669), providing for the establishment of the Area, is included therein and administered by the National Park Service for recreational uses and as delineated on the Fish and Wildlife Service Pea Island National Wildlife Refuge Drawing No. 71 PEA 36A, being the National Park Service acquisition area and more particularly described as follows: . . .
[Metes and bounds description] (emphasis added). It is undisputed that the metes and bounds description in Exhibit P includes the Property at issue in this case, even though the ...