State v. Beach Co.

Citation271 S.C. 425,248 S.E.2d 115
Decision Date21 September 1978
Docket NumberNo. 20770,20770
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE of South Carolina, Appellant-Respondent, v. The BEACH CO. and Gulf-Stream Dredging Company, Inc., Respondents-Appellants.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Kenneth P. Woodington, and Deputy Atty. Gen. Victor S. Evans, Columbia, for appellant-respondent.

Edward D. Buckley, Leonard L. Long, Jr., Ellison D. Smith, IV, and Peter D. DeLuca, Jr., Charleston, and Ronald L. Motley, Barnwell, for respondents-appellants.


The Isle of Palms is a sea island located north and east of the City of Charleston. It is somewhat drumstick in shape, with an ocean front beach of approximately seven miles and a depth of about one mile.

The State of South Carolina commenced this action in January, 1975, alleging that certain rights of the public to use of a beach front area on the island had been intruded upon by the defendants; it asked a temporary and permanent injunction prohibiting such intrusion or interference in the future. The action was commenced because The Beach Co., through Gulf Stream Dredging Company, Inc. (a nominal party not referred to hereafter), began bulldozing and leveling a 25 acre area of the 65 acres of sand dunes on the western ocean-front portion of the island, in preparation for development and use of the land.

The real issue in the case is whether the public in general has acquired a permanent easement or prescriptive right of user over the area in question, which effectively prohibits sale or development of it by the owner of the fee simple title, which is The Beach Co.

Several other actions have been commenced by individual owners of lots against The Beach Co., apparently seeking similar injunctive relief. This action does not and cannot decide whether any or all of them have acquired private easements or rights of user. The sole issue before us involves the right of the State and the right of The Beach Co. as relates to an alleged dedication of user to the public.

Until the turn of the 20th century, the island was an uninhabited semi-tropical barrier island, stretching from Breach Inlet on the west to Dewees Inlet on the east. It is bounded on the South by the Atlantic Ocean and on the north by a creek. A part of the island was subdivided and used in a limited way for resort purposes beginning about 1898; about 1926, an auto bridge connected it with the mainland. Thereafter, the sale of lots and the building of residences was accelerated, but it was not until about the end of World War II that it became truly a popular resort area. In 1946, The Beach Co. acquired, by deed, what might be described as all of the undeveloped areas composing the island. It has been stipulated that:


Several plats have been made and recorded showing the areas involved in this action. Some of the streets appear to remain as originally designated on the first plat. Other streets have been changed by the developer, and at least one change in the streets has been authorized by an act of the legislature in 1927. The auto bridge connecting the island with the mainland approaches the island at its most westerly point. Several streets run parallel to the ocean front. Included is one shown on the plats as Ocean Drive. It is almost adjacent to the ocean front, but a strip of dry land in varying widths was left between Ocean Drive and mean high-water. It is this strip of undeveloped land which gives rise to the controversy before us. Beginning at the western tip of the island, streets run approximately perpendicular to the ocean, but have not, according to the plats, been extended southward across Ocean Drive. The litigation before us involves the area beginning at the western end of the island and running as far east as 21st Street 1, which is perhaps a fourth of the length of the island.

Although Ocean Drive is shown on plats from the bridge proceeding easterly, it has never been opened for use between the bridge and Fourth Street; it has been opened and has been in long use east of Fourth Street.

The area in dispute involves approximately 115 acres of land 2 bounded on the south by the high water mark of the Atlantic Ocean, on the West by Breach Inlet, on the north by the right-of-way for Ocean Drive, and on the east by an extension of the right-of-way for 21st Street. It would appear that prior to the 1940's the disputed area was a comparatively narrow (varying in depth) strip of dry land between the south side of Ocean Drive right-of-way and the mean high-water mark. Since that time, through process of natural accretion (deposits of shifting sands), the south oceanside portions of the island (the disputed area) has greatly increased, so that, despite a city ordinance protecting the dunes for 250 feet above high-water mark, The Beach Co. found it feasible to engage in further development of lots.

Lots on the north side (landward) of Ocean Drive, facing the Atlantic Ocean, were apparently sold by reference to a plat designating the southern boundary as Ocean Drive. No reference was made to the Ocean or mean high-water as being the boundary. The development of the property in dispute would convert oceanfront properties to second row properties. The concern of these property owners was the inspiration for the State's bringing this action. Over the years property owners and others have traversed certain portions of the disputed property, going to and from the beach area. It is the testimony of The Beach Co. that from time to time "no trespassing" signs were erected, but were often destroyed by unknown persons, and that such use of the property as was made by the public was permitted by the owner.

The order of the lower court embodied the following findings: (1) that a part of Ocean Drive (from Breach Inlet to Fourth Street) may be opened to the public; (2) that the area from Breach Inlet east to Seventh Street had not been dedicated to the public, but was specifically reserved to The Beach Co., with the exception of the extension of rights-of-way of Inlet Lane, Second, Third, Fourth, Fifth and Sixth Streets, across Ocean Drive to the high-water mark; (3) that the area from Seventh Street to 21st Street had been dedicated to the public through the sale of lots by reference to certain plats; and (4) that The Beach Co. could develop the area between Breach Inlet and Seventh Street, but that it could not bulldoze the sand dunes except where actually necessary for construction of improvements or for other lawful uses; (5) that wholesale leveling constituted a nuisance Per accidens and was permanently enjoined; and (6) that the request for a mandatory injunction requiring The Beach Co. to artificially reconstitute the dunes was denied. Both the State and The Beach Co. have appealed.

Accretion by natural alluvial action to lands on a navigable stream, such as ocean waters, become the property of the owner of the land accreted or increased. Eppes v. Freeman, 261 S.C. 375, 200 S.E.2d 235 (1973). By the same token, when land which is so increased is subject to an easement or dedication, the increased area is subject to the same burdens. Therefore, if any of the area in question in this action is burdened with an easement or has been dedicated to public use, the increase or accretion bears the same limitation. If the narrow strip of land originally left between Ocean Drive and mean high-water mark has been dedicated to the public, then the accreted areas are also dedicated to the public. On the other hand, if The Beach Co. has fee simple title to the narrow strip, it has fee simple title to the entire area.

Prior to trial of the case on its merits, The Beach Co. demurred to the State's complaint on the ground that the Attorney General is without authority to bring the action under Article VI, § 7, or Article XII, § 1 of the South Carolina Constitution, or under § 1-7-40, Code of Laws of South Carolina (1976), in that the State does not own the property involved. The lower court overruled the demurrer, rationalizing that it was . . . "an action to protect alleged rights acquired by the public in lands owned or originally owned by the defendant Beach Co." In making the ruling the court relied upon the case State ex rel. Daniel v. Broad River Power Co., 157 S.C. 1, 153 S.E. 537 (1929). That case involved a mandamus action brought to compel the defendant to comply with the requirements of their franchise granted by the State and...

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10 cases
  • Horry County v. Tilghman, 0314
    • United States
    • Court of Appeals of South Carolina
    • September 24, 1984
    ...whose lands are added to. See Spigener v. Cooner, 42 S.C.L. (8 Rich.) 301, 64 Am.Dec. 755 (1855) (dictum); State of South Carolina v. Beach Co., 271 S.C. 425, 248 S.E.2d 115 (1978) (dictum). Conversely, lands gradually encroached upon by water cease to belong to the former riparian or litto......
  • K & a Acquisition Group v. Island Pointe, 26696.
    • United States
    • United States State Supreme Court of South Carolina
    • August 10, 2009
    ...S.E.2d 781, 782 (1991). The determination of whether property has been dedicated to the public is an action in equity. State v. Beach Co., 271 S.C. 425, 248 S.E.2d 115 (1978); Mack v. Edens, 320 S.C. 236, 464 S.E.2d 124 (Ct.App. 1995). "If the action is viewed as interpreting a deed, it is ......
  • State ex rel. Condon v. Hodges, 25451.
    • United States
    • United States State Supreme Court of South Carolina
    • April 18, 2002
    ...(1929), aff'd 282 U.S. 187, 51 S.Ct. 94, 75 L.Ed. 287 (1930) (citation omitted and italics added by Daniel court). Cf. State v. Beach Co., 271 S.C. 425, 248 S.E.2d 115 (1978) (while Attorney General has broad statutory authority, and arguably common law authority, to institute actions invol......
  • Ex parte Condon, 25670.
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    • United States State Supreme Court of South Carolina
    • June 30, 2003
    ...committed collectively against the citizens of the State. See Condon v. Hodges, 349 S.C. 232, 562 S.E.2d 623 (2002); State v. Beach, 271 S.C. 425, 248 S.E.2d 115 (1978). However, this Court has never held that the Attorney General's 354 S.C. 642 authority to do so is unlimited or somehow un......
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