Chisolm v. Caines

• Decision Date: 20 April 1894
• Citation: 67 F. 285
• Parties: CHISOLM et al. v. CAINES et al.
• Court: U.S. Court of Appeals — Fourth Circuit

67 F. 285

CHISOLM et al. v. CAINES et al.

United States Circuit Court, D. South Carolina.

April 20, 1894

O. W Buchanan, Atty. Gen., intervening on behalf of the state of South Carolina.

Fitzsimons & Moffett, for the motion.

Charles Inglesley, opposed.

SIMONTON Circuit Judge.

In this cause, still pending, the attorney general of the state of South Carolina has intervened by information. He alleges that neither the complainants nor their lessors, nor any of them have, or ever had, any right, title, or interest in said marshes and creeks hereinbefore described, or any of them (the marshes and creeks set out in the bill of complaint). 'On the contrary, the said marshes and beds of said navigable streams are, and have always been, the property of the state of South Carolina, absolute owner in fee simple thereof, and said state is now lawfully seised and possessed of the same as sovereign and source of title, said lands never having been granted. ' The defendants, in their answers, had denied the title of the complainants, averring that the lands upon which the alleged trespasses were committed were lands affected by public use; that is to say lands open to use by the whole public. The basis of this contention is that these lands are what is known as 'marsh lands,' and are the beds of navigable creeks covered by water, certainly at certain times of tide, lying between navigable streams, and permeated by navigable streams; that so they remain always open to public use. The attorney general has come in to assert and vindicate this position, with others, under the authority of section 507 of the General Statutes. The prayer of the intervention was allowed, the state submitting herself to the jurisdiction of the court, and to all orders heretofore made in this cause. The defendants followed up this action by a motion that an issue at law be made up to try the question of title to the lands, and on this issue they ask that the complainants be the actors, and assume the burden of proof.

Under ordinary circumstances, the complainants being in possession under color of title, holding adversely in the right of their lessors, upon ordering such an issue those who dispute their title should take upon themselves the burden of overcoming the presumption of ownership arising from possession. Patton v. McCants, 29 S.C. 597, 6 S.E. 848. But it is contended that when the state appears, claiming title to land, she occupies a peculiar position. She exhibits no paper title. Having once been the proprietor-- the source of title-- of all the lands of the state, she still owns them, unless she has parted with them. She is the sovereign, and upon this prima facie showing she can rest, at least until it is removed by a counter showing. State v. Pacific Guano Co., 22 S.C. 74. It is contended, therefore, that in the proposed issue the complainants should be the actors. There can be no doubt that all lands in this state are held under the sovereign,-- first the royal authority of Great Britain, and afterwards the state of South Carolina, the successor to all of its rights. And when the state sets up her claim, prima facie the right must be in her. To require proof from her that she has not granted the land would require proof of a negative. The argument is plausible enough to be sound. At all events, we are bound by it, as the utterance of the supreme court of the state upon a local law affecting property rights. But the state of South Carolina, succeeded to the obligations as well as the rights of the crown. She became, upon the Revolution, the owner of lands not granted by her predecessor. She is bound by those grants. This qualification is admitted even by the case of the Pacific Guano Company, which, under pressure of public opinion, carried the supposed rights of the state to an extreme limit. If it be shown that the lands had once been granted by the crown, the presumption in favor of the state is at an end, and upon those who assert her claims devolves the burden of proving either that the grant was void, or that subsequent thereto she had in some way reacquired title.

Let an issue be made up for trial on the law side of this court, in the form of questions to be submitted to and answered by a jury under instructions of the court: First: Were the lands, the subject-matter in controversy, ever granted by the crown of Great Britain, anterior to the Revolution of 1776? Second. If not have they ever been granted by the state of South Carolina? (In this question the evidence of such a grant can be derived from prescription. In the evidence leading to the answers to these questions, the burden of proof is on the complainants.) Third. If such grants, or either or any of them, are produced or proved at the trial, then the presumption arising from the possession of the plaintiffs avails them, and the burden is thrown upon the defendants to show better title in someone else.

After the rendition of the foregoing opinion the state withdrew her intervention, and the order for the issue at law was rescinded. The case then came up on the bill, answer, and testimony, the issue being whether these creeks and marshes were subject to a public use.

(January 24, 1895.)

SIMONTON Circuit Judge.

This case now comes up for a final hearing upon the pleadings, and all the testimony in the cause. The complainants are in possession, under lease, of a large body of marsh land lying in Winyah Bay, in the state of South Carolina, opposite to the shores of North Island. Winyah Bay opens into the Atlantic Ocean, carries on its waters large commerce, and its channels are great public highways. North Island is at the outer entrance of the bay, on the east, and is a strip of land bounded on the east by the ocean, and on the west by marshes extending to Jones creek, and also by the waters of Winyah Bay, and by a part of that bay known on the chart as 'Mud Bay.' Mud Bay is a shoal to the right of, and at some distance from, the usual course of vessels going up Winyah Bay; the soundings upon it, at low water, being 1 1/2 to 2 1/2 feet, except in two or three places. From North Island to Winyah Bay and Muddy Bay is a vast body of marsh land, of the character shown on the whole coast of South Carolina. The soil is mud, of greater or less hardness, and over it is a growth of marsh, which is generally close together, and of an average height of 3 to 3 1/2 feet. These marshes are permeated with creeks, some connecting with other creeks, making a continuous passage through the marshes; others rising from obscure sources in the body of the marsh, and emptying in the bay or in other creeks. The tide ebbs and flows in all of them. And the whole body of marsh land overflows with each high tide, the highest or storm tides over-lapping the growth on the land. In this margin of marsh land, of greater or less width, thus extending from the North Island to these bays, there is the body of marsh land in question in this case, separated from the North Island marshes by Jones creek. It has on one side of it, the eastern side, towards North Island, Jones creek, which runs along North Island from a small inlet at its northern end, and comes out on Winyah Bay and which, it is admitted on all sides, is a navigable creek. On the opposite or western side of this land in question in this case is Town creek, which also starts from North Inlet, running westwardly. The coast-survey chart shows that it is a bold creek for some distance. It then becomes very narrow, but it appears to have a continuous channel to a point of junction with Oyster Bay, then going through to Muddy Bay, by a small creek, called 'No Man's Friend.' Coming from Muddy Bay through this to No Man's Friend, there is an abrupt turn to the east, onto a broad sheet of water in the marsh, known as 'oyster Bay.' This Oyster Bay forms the southerly boundary of the land in question. Oyster Bay itself narrows as it extends eastwardly, and it has a connection with Jones creek by a very narrow channel, if it be a channel, called 'Noble Slough.' All the marsh between these creeks and Oyster Bay is cut up with small creeks, caused probably by the constant flux and reflux of the tide over it, acting as drains of the marsh land. Some of them have names,-- 'Mud Creek,' 'Duck Creek,' 'Bread and Butter Creek,' 'Sixty Bass Creek,' 'Cut-Off Creek,' etc. One of these creeks drains the land by two entrances into Town creek, some distance apart. Others reach out in the marsh, close up to the heads of other creeks, some of which empty into Jones creek, and others into Town creek. Of course, at high water, with the whole land flooded, any one, in a small boat, coming out of Town creek up on of these creeks, and going towards its upper end, can push over the marsh, and get into the adjacent creek, and follow that until he gets to Jones creek. These little creeks vary in depth. They are scarcely ever dry, except at low tide, and they will carry a vessel or raft of light draft in many stages of the tide. All the marshes on the coast of South Carolina present the same characteristics. The coast-survey charts give no soundings in any of these creeks.

The body of marsh in question comprises a part of the Carteret barony, and its grant from the crown bears date 1733. The grant refers to a plat, and on that plat the boundary is Winyah Bay. The grant covers the marshes, eo nomine. At the trial the original grant was not produced nor was there any evidence of its existence, beyond an official copy, or of its loss. There was evidence that it was not in the possession custody, or control of the complainants or the lessors. An exemplification of the grant, out of the office of the secretary of state, under the seal of the state, was put in evidence, and admitted. ...