Grant v. State , 4870.

Decision Date17 August 2011
Docket NumberNo. 4870.,4870.
Citation395 S.C. 225,717 S.E.2d 96
CourtSouth Carolina Court of Appeals
PartiesPeter D. GRANT, Trustee, Appellant, v. STATE of South Carolina, Defendant.


J. Kirkland Grant, of Charleston, for Appellant.

J. Emory Smith, Jr., of Columbia, for Respondent.


In this action to declare title to tidelands, Peter D. Grant, Trustee, (Grant) argues the trial court erred in concluding he failed to rebut the State of South Carolina's presumptive title to the tidelands adjacent to his property. We affirm.


Grant initiated this action against the State of South Carolina pursuant to section 48–39–220 of the South Carolina Code (2008) to determine ownership of the tidelands 1 adjacent to his property. Grant's property, known as The Fort, is 3 acres of highland on the northwest side of the island of Folly Beach. Grant's property is bordered by approximately 9 acres of saltwater marsh. Grant claimed ownership of the marshland based upon a 1696 grant abstract and a 1786 surplus grant and plat. The State asserted it held prima facie fee simple title to the marshland in the public trust. After a bench trial, the trial court determined Grant failed to overcome the State's presumptive ownership and found the State held title to the marshland. This appeal followed.


Did the trial court err in determining Grant failed to rebut the State's presumptive ownership of the marshland adjacent to his property?


An action to determine ownership of tidelands pursuant to section 48–39–220 is an action at law. See Query v. Burgess, 371 S.C. 407, 410, 639 S.E.2d 455, 456 (Ct.App.2006). In an action at law, tried without a jury, our scope of review extends to the correction of errors of law. Barnacle Broad., Inc. v. Baker Broad., Inc., 343 S.C. 140, 146, 538 S.E.2d 672, 675 (Ct.App.2000). Furthermore, “the trial court's factual findings will not be disturbed on appeal unless a review of the record discloses that there is no evidence which reasonably supports the [court's] findings.” Id.


The State of South Carolina holds presumptive title to all land below the high water mark in trust for the benefit of its citizens. McQueen v. S.C. Coastal Council, 354 S.C. 142, 149, 580 S.E.2d 116, 119 (2003). To rebut the State's presumptive title, a claimant must show (1) its predecessor in title possessed a valid grant, and (2) the grant's language was sufficient to convey land below the high water mark. Lowcountry Open Land Trust v. State, 347 S.C. 96, 103, 552 S.E.2d 778, 782 (Ct.App.2001); State v. Holston Land Co., 272 S.C. 65, 66, 248 S.E.2d 922, 923 (1978).

Because the State is presumed to hold title to tidelands in trust for the benefit of the public, a grant of private ownership must contain specific language in the grant or on the plat demonstrating an intent to convey land below the high water mark. Hobonny Club, Inc. v. McEachern, 272 S.C. 392, 396, 252 S.E.2d 133, 135 (1979). A grant which names a navigable tidal stream as a boundary conveys land to the ordinary high water mark. State v. Pinckney, 22 S.C. 484, 492 (1885). Title to land between the high and low water marks remains in the State and is held in trust for the benefit of the public. State v. Hardee, 259 S.C. 535, 539, 193 S.E.2d 497, 499 (1972). A grant of tidelands by the State or a predecessor sovereign is construed strictly in favor of the State and the general public and against the grantee. Id.

There is no dispute regarding the validity of Grant's chain of title. Thus, the issue before us is whether the grants and plat at issue are sufficient to convey land below the high water mark.

I. The 1696 Grant

Grant argues the trial court erred in determining the 1696 grant did not convey the whole of Folly Island including the adjacent tidelands. We disagree.

Grant established a chain of title to a 1696 grant of Folly Island from the Lords Proprietors to William Rivers. The original grant and plat are not known to exist and the record contains only the grant abstract which states:

William Rivers had a grant out of the Secretary's Office for Seven Hundred Acres of Land or thereabouts which said Land in Situate in Berkeley County known by the name of Folly Island which butts and bounds Southeasterly on the Sea, Northwesterly on marsh and back of the Sound on South side of James, Northwesterly on a creek that comes out of the South Channel of Ashley River.

The grant abstract names only tidal navigable water ways as boundaries and contains no language indicating an intent to convey land below the high water mark. In fact, the only mention of tidelands is the use of word “marsh” to delineate the northwest boundary of the property conveyed: “butts and bounds ... Northwesterly on marsh.” Black's Law Dictionary 1080 (9th ed.2009) (defining “butts and bounds” as the territorial limit of real property, or in other words a boundary line). Such language is insufficient to convey land below the high water mark.

Grant submits that under English common law in 1696, the grant of an island conveyed the entire island including the adjacent tidelands.2 We find Grant's contention without merit. In Shively v. Bowlby the Supreme Court of the United States noted:

In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below ordinary high-water mark, is in the king, except so far as an individual or a corporation has acquired rights in it by express grant, or by prescription or usage ... and that this title, jus privatum, whether in the king or in a subject, is held subject to the public right, jus publicum, of navigation and fishing....

It is equally well settled that a grant from the sovereign of land bounded by the sea, or by any navigable tide water, does not pass any title below high-water mark, unless either the language of the grant, or long usage under it, clearly indicates that such was the intention.

152 U.S. 1, 13, 14 S.Ct. 548, 38 L.Ed. 331 (1894) (citations omitted). These rules were applied in South Carolina for the first time in State v. Pacific Guano Co., 22 S.C. 50 (1884). There, the State sought to enjoin the Pacific Guano Company from mining phosphate from several tidal creek beds near Beaufort. Id. at 52. In determining the State held title to the creek beds at issue, the court noted: ‘It is a settled principle of the English law that the right of owners of land bounded by the sea or on navigable rivers where the tide ebbs and flows, extends to high water mark; and the shore below common, but not extraordinary high water mark, belongs to the public.’ Id. at 79–80. The Pacific Guano court also noted the unique character of the State's title to tidelands:

The state had in the beds of these tidal channels not only title as property, the jus privatum, but something more, the jus publicum, consisting of the rights, powers, and privileges derived from the British crown, and belonging to the governing head, which she held in a fiduciary capacity for general and public use; in trust for the benefit of all the citizens of the state, and in respect to which she had trust duties to perform.

Id. at 83–84. Because of the unique character of such lands, English common law and South Carolina law developed special rules regarding the granting of tidelands.

Under English common law, a grant of tidelands was to be “construed strictly [ ] and it will not be presumed, that the King intended to part from any portion of the public domain, unless clear and special words are used to denote it.” Martin v. Waddell's Lessee, 41 U.S. 367, 406, 16 Pet. 367, 10 L.Ed. 997 (1842) (emphasis added). The Pacific Guano court outlined a similar rule: “In all grants [of tidelands] from the government to the subject, the terms of the grant are to be taken most strongly against the grantee, and in favor of the grantor.” 22 S.C. at 86. Further, pursuant to English common law the upper boundary of tidelands was the “ordinary high-water mark.” U.S. v. Pacheco, 69 U.S. 587, 590, 2 Wall. 587, 17 L.Ed. 865 (1864). Thus, when “the sea, or a bay, is named as a boundary, the line of ordinary high-water mark is always intended where the common law prevails.” Id. The Pacific Guano court noted and applied the English common law rule to the creek beds at issue in that case: “These are all channels in which the tide ebbs and flows, and as to such the well established rule is, that a grant of the shore gives title only to the high water mark, the mean between extreme high and low tides.” 22 S.C. at 79.

Grant's argument that Trapier v. Wilson, 13 S.C.L. (2 McCord) 191 (1822) stands for the proposition that a grant of an island included the adjacent tidelands is misplaced. Our supreme court addressed Trapier in State v. Pinckney, 22 S.C. 484 (1885). After discussing the rules outlined above, the Pinckney court stated:

By his great industry, the counsel for the defendants found and cited the case of Trapier v. Wilson (2 McCord, 191), which he urged had changed the rule[s regarding grants of tidelands]. That was a contest between John T. Wilson and Paul Trapier as to whether there was any vacant land on “ ‘North Island’—meaning vacant highlands. The case itself states that “the question was whether the grant to Laroche (under which Mr. Trapier claimed) covered the whole of the island except the salt water marsh, or was it to be located according to the courses and distances set forth in the plat?” It was a simple question of location, the only point being whether the grant covered the upland of the whole island. It was held that the whole island was covered by the grant, and from this it is sought to draw an inference that the court held the doctrine that Trapier, as riparian proprietor, had title down to low-water mark. We cannot perceive that any such decision was involved in the case. The doctrine we are considering was not broached, and neither the...

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