South Carolina Elec. and Gas Co. v. Hix

• Decision Date: 20 February 1991
• Docket Number: No. 1708,1708
• Citation: 410 S.E.2d 582,306 S.C. 173
• Parties: SOUTH CAROLINA ELECTRIC AND GAS COMPANY, Respondent, v. Jefferson B. HIX and Larry Schweik, d/b/a Splash Rentals and Sales, Appellants. . Heard
• Court: South Carolina Court of Appeals

Page 582

410 S.E.2d 582

306 S.C. 173

SOUTH CAROLINA ELECTRIC AND GAS COMPANY, Respondent, v. Jefferson B. HIX and Larry Schweik, d/b/a Splash Rentals and Sales, Appellants.

No. 1708.

Court of Appeals of South Carolina.

Heard Feb. 20, 1991.

Decided Oct. 14, 1991.

S. Jahue Moore, of Kirkland, Taylor, Wilson, Moore, Allen & Deneen, West Columbia, for appellants.

George S. Nicholson and Patrick J. Frawley, both of Bouknight, Nicholson, Davis, Frawley & Anderson, Lexington, for respondent.

BELL, Judge:

This is an action in equity for an injunction restraining a trespass to land. The landowner, South Carolina Electric & Gas Company, sought the injunction against Jefferson B. Hix and Larry Schweik, the proprietors of a business known as Splash Rentals and Sales. The circuit court referred the matter to a special referee to enter final judgment with direct appeal to this Court. After a hearing, the referee entered judgment granting the injunction. Splash Rentals appeals. We affirm.

SCE & G owns Lake Murray near Columbia, South Carolina. Lake Murray is a manmade lake formed by an impoundment of the waters of the Saluda River by the Saluda Dam. The waters of the Saluda River and the lake are navigable waters of the State of South Carolina and of the United States. SCE & G uses the lake to generate electricity.

Pursuant to federal statute, the Federal Energy Regulatory Commission has licensed SCE & G to impound the waters of the Saluda River and to operate and maintain the Saluda Project. The Saluda Project includes the dam, the lands and waters within the project boundary owned by SCE & G, a powerhouse, and other facilities. The license requires SCE & G to allow the public free access to the waters of Lake Murray and adjacent lands owned by SCE & G for the purposes of navigation and outdoor recreation.

Hix owns a parcel of land bordering SCE & G's property. He purchased his property in 1984. The property line between SCE & G and Hix is the so-called "360 contour line." The 360 contour line is the maximum pool elevation level of the Lake measured in feet above sea level. The water of Lake Murray rarely reaches the 360 contour line. Consequently, there normally exists a fringe strip of land between the water's edge and SCE & G's property line. This fringe strip varies in width according to the lake level. The 360 contour line is a fixed boundary.

Hix's property is in a residential neighborhood. However, no deed covenants nor zoning restrictions prohibit commercial use of Hix's land. In May, 1985, Hix met with representatives of SCE & G to discuss his plans to operate a commercial watercraft rental business. Apparently, the Company's representatives understood the business would operate from a nearby commercial marina already in existence. Hix, on the other hand, intended to operate the business from his own land, using the marina to refuel his watercraft so he would not need to install fuel pumps on his premises.

Following the meeting with the Company's representatives, Hix applied to the United States Corps of Engineers for a permit to convert his existing dock from residential to commercial use. The Corps issued a notice of intent to approve the application. In the meantime, Hix and Schweik began operating Splash Rentals from Hix's property. They rented pontoon boats to the public, launched the boats from Hix's land and private dock, and stored the boats on Hix's property. In order to gain access to the water, they crossed the fringe strip owned by SCE & G. From time to time they also moored or parked the boats on the fringe strip.

Upon receiving complaints about Splash Rentals from neighboring landowners, SCE & G notified Hix and Schweik they could not use the Company's fringe strip for commercial purposes. SCE & G also filed an objection with the Corps of Engineers opposing the grant of a commercial use permit for Hix's dock. As a result, the Corps has not issued the permit. When Splash Rentals continued to use the fringe strip for its business operations, SCE & G brought this action to enjoin the trespass on its land.

I.

At common law an owner in peaceable possession of real property has the right to exclude all others from his property. See Snow v. City of Columbia, 409 S.E.2d 797 (S.C.Ct.App.1991). One who makes an unwarrantable entry on property in the peaceable possession of another is a trespasser and may be enjoined from continuing to trespass. See Mack v. Edens, 412 S.E.2d 431 (Ct.App.1991). Where the property in question is a navigable waterway, the rights of the riparian or littoral owner are not absolute; the use of his property is subject to lawful regulation by public authority. State ex rel. McLeod v. Sloan Construction Co., Inc., 284 S.C. 491, 328 S.E.2d 84 (Ct.App.1985). In the case of navigable waters of the United States, the littoral owner's rights are subject to the paramount public right to free navigation. United States v. River Rouge Improvement Co., 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339 (1926); Pike Rapids Power Co. v. Minneapolis, St. Paul & Sault St. Marie Railway Co., 99 F.2d 902 (8th Cir.1938) cert. denied, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040 (1939).

Splash Rentals asserts the referee erred in granting the injunction because the fringe strip, although private property, constitutes a navigable waterway subject to the paramount right of the public to free navigation for recreational and commercial purposes.

We assume, without deciding, that the fringe strip owned by SCE & G is part of the lake subject to a public right of navigation. Therefore, members of the public, including adjacent landowners like Hix, may lawfully enter the fringe strip to gain access to the lake. Such a...