EState S. Tenney v. the South Carolina Dep't of Health

• Citation: 393 S.C. 100,712 S.E.2d 395
• Decision Date: 21 July 2011
• Docket Number: No. 26965.,26965.
• Court: United States State Supreme Court of South Carolina
• Parties: ESTATE OF Patricia S. TENNEY, Respondent,v.The SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Office of Ocean and Coastal Resource Management and the State of South Carolina, Appellants.

393 S.C. 100

712 S.E.2d 395

ESTATE OF Patricia S. TENNEY, Respondent,

v.The SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Office of Ocean and Coastal Resource Management and the State of South Carolina, Appellants.

No. 26965.

Supreme Court of South Carolina.

Heard Feb. 2, 2011.Decided April 25, 2011.Rehearing Denied July 21, 2011.

Attorney General Alan Wilson and Assistant Deputy Attorney General J. Emory Smith, Jr., both of Columbia, for Appellant State of South Carolina, and Carlisle Roberts, Jr., of Columbia, and Davis Arjuna Whitfield–Cargile, of Charleston, for Appellant SCDHEC.

Mary D. Shahid and R. Cody Lenhardt, Jr., both of Charleston, of McNair Law Firm, for Respondent.Chief Justice TOAL.

In this action to quiet title, the South Carolina Department of Health and Environmental Control (DHEC), the Office of Ocean and Coastal Resource Management (OCRM), and the State of South Carolina (the State) (collectively, Appellants) challenge the Order of the Master–in–Equity (master) holding that Patricia S. Tenney (Respondent) ¹ is the fee simple owner of Little Jack Rowe Island (Little Jack Rowe), a 15.45 acre undeveloped island located in Beaufort County. We affirm.

Facts/Procedural Background

This action was precipitated by OCRM's refusal to process Respondent's dock permit application without proof of a sovereign's grant to the property. In 2003, then Attorney General Henry D. McMaster (AG) issued an opinion in response to DHEC's question of whether it is legal to grant permits for bridges to islands that are presumed to be owned by the State, without a showing of a sovereign's grant. That opinion stated in accordance with Coburg, Inc. v. Lesser, 309 S.C. 252, 422 S.E.2d 96 (1992) ( Coburg I ) and Coburg Dairy, Inc. v. Lesser, 318 S.C. 510, 458 S.E.2d 547 (1995) ( Coburg II ) (collectively, Coburg ), the State is the presumptive owner of all “marsh islands,” and therefore, permit applicants must produce “an original grant from the State or predecessor sovereign” to demonstrate ownership. 2003 S.C. AG LEXIS 231 (Dec. 5, 2003). Based on this opinion, on February 19, 2004, DHEC published a public notice advertising that all applicants seeking permits to build structures on undeveloped islands must provide a sovereign's grant as proof of ownership. This requirement was not statutory, as the South Carolina Code required only “[a] copy of the deed, lease or other instrument under which the applicant claims title, possession or permission from the owner of the property to carry out the proposal.” S.C.Code Ann. § 48–39–140 (1987 & Supp.1993).

On September 20, 2005, DHEC submitted draft regulations to the Board of Health and Environmental Control (Board) that would amend 23A S.C. Reg. 30–2 and 30–12(N). This draft proposed that the State was the presumptive owner of marshes and coastal islands, and therefore, in order that an applicant be granted a permit to build a structure in these areas, the applicant must supply the following as proof of ownership: (1) a copy of a document that shows an original grant of the island from a sovereign, (2) an attorney's title opinion, (3) a title abstract, and (4) a deed to the applicant.

On June 23, 2006, the General Assembly adopted coastal island regulations promulgated by DHEC. The draft regulation described above was not included in these adopted regulations. Under section 48–39–140 of the South Carolina Code and in volume 23A of the South Carolina Code of Regulations, regulation 30–2–(B)(4), it remained that proof of ownership required only a copy of the deed or other document under which the applicant claimed ownership or authority to build. Nevertheless, on November 10, 2006, DHEC submitted a second public notice informing all interested parties that proof of ownership of undeveloped islands for which an applicant seeks to obtain a dock permit requires the applicant submit proof of a sovereign's grant, an attorney's title opinion, and an accompanying abstract of title.

On September 27, 2005, Respondent purchased Little Jack Rowe for $875,000 from Bradbury Dyer, III (Dyer) by way of general warranty deed. The chain of title to Little Jack Rowe dates back to 1865 when the United States government issued a Federal Tax Certificate as a measure to collect delinquent taxes from “insurrectionary districts within the United States.” Little Jack Rowe is a 15.452 acre island located in Bluffton Township, Beaufort County, South Carolina. Before Respondent purchased Little Jack Rowe from Dyer, the island was historically sold as part of Jack Rowe Island. Jack Rowe Island is roughly 53 acres in size and is connected to Little Jack Rowe by a causeway approximately 100 yards in length that can be walked across at high tide. Jack Rowe Island currently has five docks connected to it. Similar to Jack Rowe Island, Little Jack Rowe is bordered on one side by the Cooper River, ² a deep saltwater tidal river which is part of the Intracoastal Waterway. The remaining majority of the island is bordered by tidal marshland.

Dyer, the previous owner of the island, held a dock permit approved by OCRM, which expired on May 12, 2005, four months prior to Respondent's purchase of the island. Respondent planned to build a house on the island, and the only convenient way to access the island is by mooring a boat to a dock. On November 7, 2005, Respondent submitted a critical area permit application to OCRM, seeking to construct a dock from Little Jack Rowe to the Cooper River. On November 29, 2005, OCRM forwarded the application to the AG's office.

On July 19, 2006, Respondent's attorney contacted the AG's office by letter, seeking to discern the AG's position regarding the dock permit and requesting the AG either approve or deny the application. The AG's office responded by letter stating that Respondent must produce a sovereign grant covering Little Jack Rowe in order that the office may review the application.

By Complaint dated February 27, 2007, Respondent brought this action to quiet title to Little Jack Rowe, in addition to several other causes of action. Each party submitted Motions for Summary Judgment, and the master denied each of these motions following a hearing, with the exception that the master ordered OCRM to either grant or deny Respondent's permit application. On March 26, 2008, DHEC issued Respondent a letter denying her permit application.

After trial and oral argument, the master issued an Order granting judgment for the Respondent on the ground that Little Jack Rowe is not a marsh island under Coburg, that Respondent was entitled to quieted title under the forty year statute, S.C.Code Ann. § 15–3–380 (2005), that the Federal Tax Certificate of 1865 represented a sovereign's grant, and that Respondent qualified for a dock permit under section 48–39–140 of the South Carolina Code and accompanying regulations. This case is before the Court pursuant to Rule 204(b), SCACR.

Issue

I. Whether Respondent holds fee simple title to Little Jack Rowe Island.

Standard of Review

This action was commenced as both a quiet title action and a request for declaratory judgment. Typically, an action to remove a cloud on and quiet title to land is one in equity. Cathcart v. Jennings, 137 S.C. 450, 135 S.E. 558, 562 (1926). However, “when the defendant's answer raises an issue of paramount title to land, such as would, if established, defeat the plaintiff's action, the issue of title is legal.” Dargan v. Tankersley, 380 S.C. 480, 483, 671 S.E.2d 73, 74 (2008).

“Declaratory judgment actions are neither legal nor equitable and, therefore, the standard of review depends on the nature of the underlying issues.” Judy v. Martin, 381 S.C. 455, 458, 674 S.E.2d 151, 153 (2009). In this case, the Court must determine the reach of its prior case law. Thus, this is an action at law. In an action at law tried before a master, the appellate court “will affirm the master's factual findings if there is any evidence in the record which reasonably supports them.” Query v. Burgess, 371 S.C. 407, 410, 639 S.E.2d 455, 456 (Ct.App.2006). However, “[a]n appellate court may determine questions of law with no particular deference to the trial court.” Verenes v. Alvanos, 387 S.C. 11, 14, 690 S.E.2d 771, 772–73 (2010).

Analysis

I. Title to Little Jack Rowe Island

Appellants argue the master erred in finding Little Jack Rowe was not subject to a presumption of State ownership, as set forth in Coburg. After much consideration, we take this opportunity to overturn the specific holding of Coburg that “[t]itle to islands situate within marshland follows title to the marshland.” Coburg II, 318 S.C. at 513, 458 S.E.2d at 548.

In Coburg I, Lesser received a permit from the South Carolina Coastal Council to construct a walkway and floating dock on marshland that contained two small islands, Glass Island and Small Island. Coburg I, 309 S.C. at 253, 422 S.E.2d at 97. These islands were bordered on one side by the Wappoo Creek, a navigable tidal stream on the Intracoastal Waterway, and on the remaining sides by marshland. Coburg brought an action to quiet title to the marshland and islands, claiming ownership pursuant to a 1967 deed which traced back to a 1703 grant from the Lords Proprietors to Robert Gibbes. Coburg II, 318 S.C. at 512, 458 S.E.2d at 548. After reciting the established principle that “[p]resumption of title to marshland rests in the State of South Carolina, to be held in trust for the benefit of the public,” Coburg I, 309 S.C. at 253, 422 S.E.2d at 97, this Court followed, stating “ownership of islands situate within marshland follows ownership of the marshland.” Id. ( comparing with McCullough v. Wall, 4 Rich. 68, 53 Am.Dec. 715 (1850)). This Court remanded the case so the State could be added as a party. Id. at 255, 422 S.E.2d at 98.

In Coburg II, this Court found the Lord Proprietors grant upon which Coburg relied did not contain specific language showing the intent to convey land below...