Hughes v. Nelson, 1575

• Decision Date: 26 November 1990
• Docket Number: No. 1575,1575
• Court: South Carolina Court of Appeals
• Parties: Lindberg HUGHES, Respondent, v. Anthony NELSON, Appellant.

Page 24

399 S.E.2d 24

303 S.C. 102

Lindberg HUGHES, Respondent, v. Anthony NELSON, Appellant.

No. 1575.

Court of Appeals of South Carolina.

Submitted Nov. 5, 1990.

Decided Nov. 26, 1990.

Doris M. McAndrew, of Strickland & McAndrew, Columbia, for appellant.

Charles H. Williams, of Williams & Williams, Orangeburg, for respondent.

SANDERS, Chief Judge:

Respondent Lindberg Hughes brought this action, alleging appellant Anthony Nelson had blocked his access to the Edisto River by obstructing a certain canal. After a trial, the Circuit Court found "the canal constitutes navigable waters." Based on this finding, the Court ordered Mr. Nelson to remove all obstructions previously placed in the canal and enjoined him from further obstructing the canal or "blocking access." We affirm.

There is no dispute about the fact that Mr. Nelson obstructed the canal. Nor is there any doubt that the unauthorized obstruction of navigable waters is unlawful. See S.C. Const. art. XIV, § 4 ("All navigable waters shall forever remain public highways free to the citizens of the State and the United States...."); State ex rel. Lyon v. Columbia Water Power Co., 82 S.C. 181, 190, 63 S.E. 884, 889 (1909) (the public is entitled to the unobstructed use of navigable streams and the statement of the right in the Constitution "is hardly anything more than a constitutional sanction of the common-law rights of the public in navigable water"). Thus, the only issue presented in this case is whether the waters of the canal are navigable waters, making the canal a public highway, or whether, on the other hand, the canal is private property, like a privately owned road.

Mr. Hughes dug the canal in 1972. His purpose was "to get to the river to fish, or whatever." The project was no small undertaking. The canal, at the point where it connects with the river, was about 30 feet wide and 20 feet deep. It ran back from the river about 1,700 feet. At its far end, away from the river, it was about 15 feet wide and 12 feet deep. It turned out to be a very good place to fish for red breast, as well as for catfish, bass and bream. Mr. Hughes thereafter sold his property adjoining the canal, but he retained "fishing rights in, and the use of the canal." From time to time, he and others have tried to prevent people from using the canal by installing a gate at its mouth, by stringing a wire across the mouth, and by putting up no trespassing signs. At certain times of the year, the canal has very little water in it, making access to it difficult. Nevertheless, there is no dispute about the fact that, except for a brief period of time, members of the public have used the canal for fishing, gaining access by piloting their boats into it from the river. The Circuit Court made the explicit finding that "since the construction of the canal, the public fishing on [the] Edisto River in boats have fished in this canal and driven their boats in this canal, except for a very brief period of time when the plaintiff attempted to block its usage." The finding of the Court is unchallenged by any exception. See Walters v. Canal Ins. Co., 294 S.C. 150, 151, 363 S.E.2d 120, 121 (Ct.App.1987) ("Where no exception is taken to findings of fact or conclusions of law, they become the 'law of the case.' ").

I

To be navigable, a waterway does not have to embrace commercial shipping lanes. It need not accommodate the Carnival Cruise Lines or be able to float the Love Boat. "The true test to be applied is whether a stream inherently and by its nature has the capacity for valuable floatage, irrespective of the fact of actual use or the extent of such use." State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 449, 346 S.E.2d 716, 719 (1986) (emphasis omitted). The fact that a waterway is artificial, not natural, is not controlling. When a canal is constructed to connect with a navigable river, the canal may be regarded as a part of the river. See id. at 448, 346 S.E.2d at 718 (canals and ditches, dug by rice planters for the purpose of water control but since used by the general public as natural waterways, "have become the functional equivalent of natural streams"); State v. Columbia Water, 82 S.C. at 186, 63 S.E. at 887 (a canal constructed to improve navigation of two navigable rivers becomes "a part of those rivers, and therefore navigable just as any other portion of them is navigable"). ¹

Quite obviously, the waters of the canal in question have the capacity for navigation. Members of the general public have, in fact, navigated them for more than fifteen years. The fact that the use made of the waterway was not a commercial use is of no consequence. "[A] traveler for pleasure is as fully entitled to protection in using a public way, whether by land or water, as a traveler for business." Heyward v. Farmers' Min. Co., 42 S.C. 138, 155, 19 S.E. 963, 972 (1894); see State v. Coastal Council, 289 S.C. at 450, 346 S.E.2d at 719 ("The use of this waterway by the general public for boating, hunting, and fishing is a legitimate and beneficial public use."). It would, indeed, be difficult to imagine a more valuable floatage than a fishing boat on the Edisto River. The deathless prose of Herbert Hoover leaps to mind:

The blessings of fishing include not only Edgar Guest's "wash of the soul" with pure air, but they also now include discipline in the equality of men, meekness and inspiration before the works of nature, charity and patience toward tackle makers and the fish, a mockery of profits and conceits, a quieting of hate and a hushing to ambition, a rejoicing and gladness that you do not have to decide a blanked thing until next week.

H. Hoover, The Memoirs of Herbert Hoover: The Cabinet and the Presidency, 1920-1933 158 (1952); ² see E. Guest, "Out Fishin'," reprinted in Poems That Live Forever 419 (1965) ("An' he can wash his soul in air / That isn't foul with selfish...