Cape Roma In Land &. Improvement Co v. Ga.-carolina Canning Co

• Decision Date: 05 July 1928
• Docket Number: (No. 12479.)
• Citation: 146 S.E. 434
• Court: South Carolina Supreme Court
• Parties: CAPE ROMA IN LAND &. IMPROVEMENT CO. v. GEORGIA-CAROLINA CANNING CO. et al. SAME. v. SHELLMORE OYSTER PRODUCTS CO.

146 S.E. 434

CAPE ROMA IN LAND &. IMPROVEMENT CO.

v.GEORGIA-CAROLINA CANNING CO. et al.

SAME.

v.SHELLMORE OYSTER PRODUCTS CO.

(No. 12479.)

Supreme Court of South Carolina.

July 5, 1928.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Charleston County; Wm. H. Grimball, Judge.

Two actions by the the Cape Romain Land & Improvement Company against the Georgia-Carolina Canning Company and another and against the Shellmore Oyster Products Company. Judgment for defendants, and plaintiff appeals. Affirmed.

The following are the exceptions of the plaintiff:

"1. It is respectfully submitted that his honor erred in holding that the plaintiff had failed to prove title to the land between high and low water mark in the navigable streams bordering and intersecting appellant's land, and rendering judgment for the respondent in both cases; said error being that the grants to plaintiff's predecessors in title by and under which appellants held, extended to low-water mark, subject to the right of navigation and any question that might arise as to phosphate deposits, and appellant has never in any way forfeited or lost its right to hold to low-water mark.

"2. It is respectfully submitted that his honor erred in holding that the appellant had failed to prove title to land between high and low water mark on the navigable streams bordering and intersecting the appellant's land, and rendering judgment for respondent in both cases; said error being that the only inference that can be drawn from the testimony is that the appellant entered into possession of said land down to low-water mark along all of the navigable streams referred to, and that more than twenty years have elapsed between that time and the date of the first trespass, if any, by these defendants, and the state and public generally have been out of possession for a period of more than twenty years, whereby the plaintiff has acquired a valid title to low-water murk, and neither the state, its grantees, or the public generally can assert title or public right in the same, except the right of navigation and any question that may arise to phosphate rock.

"3. It is respectfully submitted that his honor erred in finding that appellant had failed to prove title to the land between high and low water mark in the navigable streams bordering and intersecting appellant's land, and in rendering judgment for the respondents in both cases; said error being in making said order and finding applicable to all of the lands claimed by the appellant when in no event could such ruling have extended to the two tracts of land which were originally granted by the state to Richard T. Morrison, for the reason that the plats accompanying the said grant show that the state granted the said land to low-water mark, and plaintiff's title in these two tracts extended to low-water mark, subject to the right of navigation and any question that might arise in regard to phosphate rock.

Hamer & Crosland, of Charleston, and Alfred Wallace, of Columbia, for appellant.

E. W. Hughes and Robert McC. Figg, Jr., both of Charleston, for respondents.

CARTER, J. On the 25th of January, 1925, the Cape Romain Land & Improvement Company, as plaintiff, instituted two actions in the court of common pleas for Charleston county, one against the defendants Georgia-Carolina Canning Company and H. G. Leiding, and the other against the defendant Shell-more Oyster Products Company, the purpose of which actions was to restrain the defendants from trespassing upon the lands de-scribed in the complaints, consisting of more than 34, 000 acres, alleged to be owned by the plaintiff, by gathering and carrying off oysters from said lands, putting up signs and planting oyster shell thereon, and also for damages in the sum of $10,000 for the alleged acts of trespass.

The defendants in their answer denied the material allegations of the complaint, and further alleged that they held a valid lease from the board of fisheries of the state, acting under an act of the General Assembly, covering all lands on which they were operating, and it may be stated in this connection that it appears from the record that the defendants were only operating between high and low water mark in the navigable streams on the lands in question.

It is agreed by the parties, as shown by the statement contained in the transcript, that the pleadings and evidence raised the following issues: (1) Plaintiff's title; (2) plaintiff's title between high and low water mark in the navigable streams named; (3) had the defendant or defendants in either case trespassed; (4) the extent of the damage and relief the plaintiff was entitled to. By agreement, the cases, which were similar, were tried together, and referred to the master of Charleston county only to take the testimony and report the same. The matter was heard by his honor, Judge William H. Grimball, upon the testimony reported, and, after full consideration, Judge Grimball having reached the conclusion that the plaintiff had failed to prove title to the land between high and low water mark in the navigable streams in question, gave judgment for the defendants and did not pass upon the other issues raised by the pleadings and the evidence. From the order of judgment for the defendants, the plaintiff has appealed to this court, imputing error to his honor, Judge Grimball, in the particulars alleged in plaintiff's exceptions, which will be incorporated in the report of the cases.

Since in the order of his honor, Judge Grimball, only one of the issues raised was decided—the issue of "plaintiff's title between high and low water mark in the navigable streams"—should the appeal be sustained, it would be necessary to remand the case to the circuit judge for the purpose of passing upon the other issues raised under the pleadings and evidence, but, under the view we take of the case, the order of Judge Grimball should be upheld and the appeal therefore dismissed.

An examination of the transcript of the case shows the following agreed statement: " * * * The real question in each case was does the plaintiff have title to low water mark in the navigable streams named. The crux of the whole case is, has the plaintiff title to low water mark in navigable streams, the testimony showing that all streams named were navigable, and there being no proof that any oysters were gathered or other trespass committed between high and low water mark on the shores of Bull's Bay, or in Bull's Bay." With a view of answering this question, we have made a careful examination of the record and fail to find proof of title in the plaintiff between high and low water mark in the navigable streams on the land in question. Assuming that the plaintiff proved title to the lands described in the deeds introduced in evidence by the plaintiff, it does not follow that title was proved to "low water mark in navigable streams" in question. Appellant contends that, under the language of the several grants of the state introduced in evidence, with which it alleges it has connected itself, it owns the land to low-water mark in all tidal navigable streams, even though the wording contained in the deeds does not specifically so state.

In determining the extent of the boundaries of a body of land, the same rule does not apply to tidal navigable streams, such as those in question, that applies to the ordinary or nonnavigable stream. When a body of land is bounded by a nonnavigable stream, the general rule is that the boundary line is the middle of the stream, whereas, in the case of a tidal navigable stream, the boundary line is high-water mark, in the absence of more specific language showing that it was intended to go below high-water mark, and the portion of land between high and low water mark remains in the state in trust for the benefit of the public interest. The plaintiff's deeds give as boundaries of the lands referred to in the complaint the Atlantic Ocean, certain bays, islands, marshes, streams, etc., and do not give low-water mark as the boundary in any instance. In this connection, appellant contends that the plats of the lands described in the several deeds, and which accompanied the deeds, should have been considered by his honor, Judge Grimball, in passing upon this issue. The transcript of the case contains this agreed statement on that point: "The testimony shows that no grant or any plat referred to in any part of the ease contains the words 'low water mark, ' except in one plat covering one of the Morrison grants, the surveyor (states?) that on Bull's Bay, an arm of the sea not a navigable stream, the line is at 'low water mark, ' and on the same plat containing navigable streams, no such language is used, and there is no testimony that any oysters were gathered or cultivated, or any stakes driven in Bull's Bay." It is therefore clearly seen that the plats to which the appellant refers do not offer any additional proof on the issues under consideration.

In support of the views herein expressed, reference may be had to the following authorities: Shively v. Bowlby, 152 U. S. 1, 14 S. Ct 548, 38 L. Ed. 331; State v. Pacific Guano Co., 22 S. C. 50; State v. Pinckney, 22 S. C. 484; Hardin v. Jordan, 140 U. S. 371, 11 S. Ct. 838, 35 L. Ed. 428; Heyward v. Farmers Mining Co., 42 S. C. 138, 19 S. E. 963, 20 S. E. 64, 28 L. R. A. 42, 46 Am. St. Rep. 702; Morris v. United States, 174 U. S. 196, 19 S. Ct. 649, 43 L. Ed. 946.

In the case of Shively v. Bowlby, supra, Mr. Justice Gray, as the organ of the court, makes this reference to the rule in South Carolina: "In South Carolina, the rules of the common law, by which the title in the land under tide waters is in the State, and a grant of land bounded by such waters passes no title below high water mark, appear to be still in force"—citing State v. Pacific Guano Co., 22 S. C. 50; State v. Pinckney, 22 S. C. 484. In the case of Hardin v. Jordan, supra, in discussing the rule, the court uses...