Hoogenboom v. City of Beaufort

• Decision Date: 19 February 1992
• Docket Number: No. 1885,1885
• Citation: 315 S.C. 306,433 S.E.2d 875
• Court: South Carolina Court of Appeals
• Parties: Irene J. HOOGENBOOM, Respondent, v. The CITY OF BEAUFORT, Appellant. . Heard

Page 875

433 S.E.2d 875

315 S.C. 306

Irene J. HOOGENBOOM, Respondent, v. The CITY OF BEAUFORT, Appellant.

No. 1885.

Court of Appeals of South Carolina.

Heard Feb. 19, 1992.

Decided Nov. 9, 1992.

Rehearing Granted March 9, 1993.

Opinion Adhered to on Rehearing April 29, 1993.

Certiorari Granted Dec. 20, 1993.

William B. Harvey, III, of Harvey & Battey, Beaufort, and James B. Richardson, Jr., Svalina, Richardson & Smith, Columbia, for appellant.

Barry L. Johnson, of Biel, Clark & Johnson, and Mark H. Lund, III, of Novit & Scarminach, Hilton Head Island, for respondent.

BELL, Judge:

Irene J. Hoogenboom brought this action against the City of Beaufort, South Carolina, to quiet title to a parcel of land bordering a lot that she owns. The City denied title is in Hoogenboom, claiming the disputed parcel is the "street end" of King Street. In the alternative, Hoogenboom petitioned pursuant to S.C.Code § 57-9-10 to -40 (1976) for the "street end" to be closed and title to be vested in her by order of the court. The City objected to closing the street. The case was referred to the master in equity for entry of judgment with direct appeal to this Court. The master gave judgment for Hoogenboom on both claims. The City appeals. We reverse.

In 1986, Hoogenboom purchased an antebellum residence in Beaufort known as The Oaks. It is on a peninsular area historically known as Black's Point. Hoogenboom's lot is designated as Block 3 or Parcel 656 on tax maps and plats of record. It is depicted as a rectangular lot bounded on the north by Laurens Street; on the east by Parcel 656A, Parcel 656B, and the marsh of the Beaufort River; on the south by marsh and Parcel 656C; and on the west by Short Street. Parcel 656C is the land disputed in this suit. It is also called "The Extension."

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Diagram 1. Plat by R.D. Trogdon for Irene Hoogenboom,

January, 1987 (Pl. Exhibit 14)

Black's Point was brought into the City of Beaufort in 1809 by an Act of the General Assembly. See An Act to incorporate the several Societies therein mentioned, and for other purposes, Acts and Resolutions of the General Assembly of South Carolina, 1809, 5 S.C.Stat. 597 (Cooper ed. 1839). In 1811, the General Assembly authorized the intendant and wardens of Beaufort to lay out streets on Black's Point. See An Act to authorize the Intendant and Wardens of the Town of Beaufort, to lay out Streets on Black's Point, etc., Acts and Resolutions of the General Assembly of South Carolina, 1811, 5 S.C.Stat. 649 (Cooper ed. 1839). The Act of 1811 required the City to pay for "the damage sustained by any proprietor of a lot or lots, through which any of the said streets may be so laid out." The Act also provided that upon payment of damages to the proprietor, any street so laid out was vested in the intendant and wardens of Beaufort and "their successors in office, forever."

In the years before the Civil War the City laid out streets, including King Street, on Black's Point. Hoogenboom admits that The Extension was part of King Street going to the marshes of the Beaufort River until the end of the 19th century. It regularly carried pedestrian and vehicular traffic. It had a street lamp. It was fenced off from The Oaks.

Antebellum land records for Beaufort County were destroyed in the Civil War. The public records from 1863 to the present show The Extension as part of King Street. The legal description of Block 3, used in every conveyance from the earliest surviving deed in 1863 down to Hoogenboom's own deed in 1986, states that it is bounded on the south by King Street. As can be seen from the original plat of the Direct Tax Commissioners in 1863, the only part of King Street that bounds Block 3 on the south is The Extension.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Diagram 2. Portion of Plat by U.S. Direct Tax Commissioners, January, 1863 (Pl. Exhibit 10A)

No taxes have ever been paid on The Extension by the owners of Block 3. Paul Schwartz, Sr., Hoogenboom's grantor and immediate predecessor in title, owned Block 3 from 1957 to 1986. He never claimed ownership of The Extension. He testified that he understood the parcel belonged to the City.

I.

In an action to quiet title, the plaintiff must recover on the strength of his own title, not on the alleged weakness of the defendant's title. See Haithcock v. Haithcock, 123 S.C. 61, 115 S.E. 727 (1923); Hammond v. Halsey, 287 S.C. 46, 336 S.E.2d 495 (Ct.App.1985). One claiming title by deed has no greater title than the original grantor in the chain of title upon which he relies. See Belue v. Fetner, 251 S.C. 600, 164 S.E.2d 753 (1968) (a deed cannot convey an interest which the grantor does not have).

The master quieted title in Hoogenboom because he found "that The City has failed to establish that it owns fee title to The Extension." This was error. The burden was not on the City to establish its title, but on Hoogenboom to establish hers. Thus, we can affirm the judgment only if the evidence supports no inference except title in Hoogenboom.

A.

As evidence of her title to The Extension, Hoogenboom proved an unbroken chain of conveyances of Block 3 from the 1863 deed of the Direct Tax Commissioners to her deed in 1986. In addition, however, she had to show that the United States Board of Direct Tax Commissioners, the original grantor in her chain of title, had the right to convey ownership of The Extension. The difficulty she faces is that there is no evidence the Commissioners could convey title to The Extension. On the contrary, it is evident they could not.

In 1861, Congress enacted legislation for the direct taxation of real property in the then existing forty-one states or territories and the District of Columbia. Act of Aug. 5, 1861, ch. 45, 12 Stat. 292. Many property owners in the Southern States refused to pay the tax because of the Civil War, so Congress enacted legislation in 1862 and 1863 authorizing special Direct Tax Commissioners to collect taxes in the "Insurrectionary Districts." Act of June 7, 1862, ch. 98, 12 Stat. 422; Act of Feb. 6, 1863, ch. 21, 12 Stat. 640. The Acts directed the Commissioners to sell property for which the direct tax was not paid. In 1863, pursuant to this legislation, the Direct Tax Commissioners sold Block 3 for unpaid taxes.

As a matter of law, the Commissioners could only pass title to property that was subject to taxation, levy, and execution under the authorizing statutes. See DeTreville v. Smalls, 98 U.S. 517, 25 L.Ed. 174 (1878); Stratos v. King, 282 S.C. 501, 319 S.E.2d 356 (Ct.App.1984). Those statutes specifically exempted from taxation property not subject to taxation under state law in 1861.

It is a well settled rule that the property of municipal corporations, when appropriated to public uses, is exempt from taxation. City of Somerville v. City of Waltham, 170 Mass. 160, 48 N.E. 1092 (1898); see also Van Brocklin v. Anderson, 117 U.S. 151, 6 S.Ct. 670, 29 L.Ed. 845 (1886) (general tax acts of a state are never, without the clearest words, held to include its own property or that of its municipal corporation); Foster v. City of Duluth, 120 Minn. 484, 140 N.W. 129 (1913) (property of city not subject to taxation, to proceedings for the assessment of taxes, or for their collection by judgment and sale); County of Erie v. City of Erie, 113 Pa. 360, 6 A. 136 (1886) (where there is no law for taxation of property owned by a city and used for public purposes, it is not taxable); 2 Cooley, THE LAW OF TAXATION § 621 (4th ed. 1924). This has always been the rule in South Carolina, for it has never been the policy of this State to tax its municipal corporations or other instrumentalities of government. State v. City of Columbia, 115 S.C. 108, 104 S.E. 337 (1920). More particularly, the South Carolina Constitution of 1790, which was in effect in 1861, made no provision for the taxation of real property held by municipalities. See S.C. Const. of 1790 art. X. Likewise, no South Carolina statute from 1682 to 1861 subjected lands of any municipality to a tax. On the contrary, in those few instances when the Legislature authorized direct ad valorem taxation of real property, it specifically exempted lands held for public or charitable purposes or by a municipal corporation. See, e.g., An Act to raise supplies and to make appropriations for the year one thousand eight hundred and one; and for other purposes therein mentioned, Acts and Resolutions of the General Assembly of South Carolina, 1801, 5 S.C.Stat. 417, 419 (Cooper ed. 1839). Thus, in 1861, land used for a public street was exempt from taxation under South Carolina law.

The Extension was being used as a public street in 1861. Consequently, the Direct Tax Commissioners could not place it on the tax rolls or assess, levy on, sell, or convey the property. Any purported sale of public property for unpaid taxes was legally void and passed no title to the purchaser. DeTreville v. Smalls, supra; Braxton v. Rich, 47 F. 178 (C.C.W.Va.1891), aff'd, 158 U.S. 375, 15 S.Ct. 1006, 39 L.Ed. 1022 (1895). For this reason, a deed from the Commissioners could pass no title to The Extension. Because neither the 1863 tax deed nor any succeeding conveyance of Block 3 passed title to The Extension, Hoogenboom did not acquire a fee simple to The Extension by her deed.

Hoogenboom rightly points out that the Act of 1811 required the City to pay compensation for private property taken to lay out streets. She also correctly observes that the Act was not the exclusive means by which the City could acquire land for a street. However, she produced no evidence that the City acquired The Extension by some method other than paying compensation under the Act. It is not enough to speculate that the City acquired King Street by some means other than a taking under the Act of 1811. Hoogenboom was required to prove by evidence that the street was acquired by...