State v. Hardee

• Citation: 259 S.C. 535,193 S.E.2d 497
• Decision Date: 14 November 1972
• Docket Number: No. 19516,19516
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE of South Carolina, Respondent, v. Claire D. HARDEE, Appellant.

Page 497

193 S.E.2d 497

259 S.C. 535

The STATE of South Carolina, Respondent, v. Claire D. HARDEE, Appellant.

No. 19516.

Supreme Court of South Carolina.

Nov. 14, 1972.

[259 S.C. 536] Cecil W. Schneider, Georgetown, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Edward B. Latimer, Columbia, for respondent.

Buist, Moore, Smythe & McGee, Charleston, amicus curiae.

MOSS, Chief Justice:

The State of South Carolina, the respondent herein, in its complaint in this action alleges the ownership of all tidelands in South Carolina, this being the area between the usual high water mark and the usual low water mark, and the submerged land, this being the area below the usual low water It appears from the record that Claire D. Hardee, the appellant herein, obtained a deed from Carrie L. Lindler, dated August 6, 1964, purporting to convey to her lots 48, 49 and 54 as shown on a plat by J. L. Bull, Jr., dated July 28, 1938 and further shown on a plat, dated March 16, 1967, prepared by Legare Hamilton. Said lots being on Pawleys Island in Georgetown County. As it appears from said plats, these lots are bounded on the northwest by Salt Creek and on the southeast by Myrtle Avenue and on the northeast and southwest by other lots in the subdivision. This action involves the ownership of a certain strip of tidelands extending from Pawleys Island toward the mainland which is a portion of the aforesaid lots.

mark. It further alleges that it holds title thereto in trust for the people of the State.

The respondent instituted this action against the appellant to restrain and enjoin her or anyone acting for her and in her stead, from trespassing upon, filling, construction or otherwise changing the natural stae of so much of said lots as constitute tidelands. The appellant, in her answer, denied the material allegations of the complaint and alleged her ownership of the lots in question down to the usual low water mark along Salt Creek on said Pawleys Island.

The record reveals that by deed dated April 4, 1842, the State of South Carolina conveyed to Col. Peter W. Frazier:

'A plantation or tract of land, containing three hundred sixty-six acres (surveyed the 25th January 1842). Situate in Georgetown District on Pawleys Island, waters of the Atlantic Ocean bounding North by an Inlet East by the Ocean South by Col. T. P. Alston, West by a Creek, Having such shape, form and marks as are represented by a plat hereunto annexed, . . ..'

Attached to said deed is a plat made pursuant to a warrant, dated January 22, 1842, from S. B. Hucks, Commissioner of Locations for Georgetown District. Endorsed upon said plat is a certificate by Benjamin Johnson reading as follows:

'I have laid out to Col. Peter W. Frazier, a tract of land containing three hundred sixty six, (366) acres, situated in said District on Pawleys Island Waters of the Atlantic Ocean, Bounding North East by an Inlet, East by the Ocean, South by Col. T. P. Alston, West by a Creek, Having such shape, forms and marks as are represented, The Island has been originally granted to Joseph Allen, but this survey is for the purpose of obtaining a new grant.'

It is admitted that Col. Peter W. Frazier was the predecessor in title to the appellant and whatever interest she may have in the area between the usual high water mark and the usual low water mark depends upon an interpretation or construction of the grant to him by the State of South Carolina. The issue here is whether under the language of the said grant by the State of South Carolina to Col. Peter W. Frazier the appellant owns the land to the usual low water mark.

This case came on for trial at the 1971 April Term of the Court of Common Pleas for Georgetown County. The trial judge submitted to the jury, as a question of fact, the location of the usual high water mark of the area in controversy. The jury determined that the usual high water mark of lot 54 was one hundred fifty four (154) feet from the right of way of Myrtle Avenue. There was no appeal from this finding. The parties agreed that the usual high water mark of lots 48 and 49 was at the right of way of Myrtle Avenue. The court took under advisement, as a question of law, the interpretation or construction of the grant by the State of South Carolina to Colonel Peter W. Frazier.

The trial judge found and concluded that Salt Creek is a navigable stream. There was no appeal from this finding of fact. He also found, in interpreting the grant by the State of South Carolina to Colonel Peter The appellant prosecutes the appeal to this Court alleging error on the part of the trial judge in finding that she had failed to prove title to the land between the usual high water mark and the usual low water mark, the error being that under the language of the grant to Colonel Peter W. Frazier in 1842 the appellant owns the land to the usual low water mark.

W. Frazier and the annexed plat, that the appellant had failed to prove title to the land between the usual high water mark and the usual low water mark. He also concluded, assuming the appellant proved title to the land described in the grant, it did not follow that the title was proved to 'the low water [259 S.C. 539] mark.' The trial judge found that the lands lying below the usual high water mark on the said plat of lots 48, 49, and 54 are owned by the State of South Carolina.

We have held that in determining the extent of the boundary of a body of land, the same rule does not apply to tidal navigable streams, such as the one in question, that applies to a nonnavigable stream. When a body of land is bounded by a nonnavigable stream, the general rule is that the boundary line is the middle of the stream, whereas, in the case of a tidal navigable stream the boundary line is the high water mark, in the absence of more specific language showing that it was intended to go below high water mark, and the portion between high and low water mark remains in the State in trust for the benefit of the public. State v. Pacific Guano Co., 22 S.C. 50; and Cape Romain Land & Imp. Co. v. Georgia-Carolina Can. Company, 148 S.C. 428, 146 S.E. 434.

A deed or grant by the State of South Carolina is construed strictly in favor of the State and general public and against the grantee. In support of this rule attention is directed to State v. Pacific Guano Co., 22 S.C. 50, where it is said:

* * * 'In all grants 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, reversing the rule as between individuals, on the ground that the grant is supposed to be made at the solicitation of the grantee, and the form and terms of the particular instrument of grant proposed by him and submitted to the government for its allowance. But this rule applies A fortiori to a case where such grant by a government to individual proprietors is claimed to be not merely a conveyance of title to land, but also a portion of that public domain which the government held in a fiduciary relation, for general and public use.' * * *

The respondent comes into court with a presumption of title and if the appellant is to prevail she would have to recover upon the strength of her own title of which she must make proof. State v. Pinckney, 22 S.C. 484.

In State v. Pacific Guano Co., 22 S.C. 50, this Court held that a grant by the State of the lands on the shore of a navigable tidal channel gives title only to the high water mark. In State v. Pinckney, 22 S.C. 484, this Court held that a deed that calls for boundaries on tidal navigable streams conveys the land down to the ordinary high water line only. In the cited case the common law rule was thus stated: 'if the boundary be a navigable stream, that is, one in which the tide ebbs and flows, the land extends only to the water's edge, or to high water mark.' We quote further from the cited case the following:

'So a conveyance bounding 'westerly by the beach,' excludes the shore or land between low and high water mark. The same is the rule where the land is bounded by the sea, or an arm of the sea. The space between high and low water mark of the border of the sea is called the 'shore,' and belongs by the common law to the sovereign, precluding, of course, the claim of any other person, unless acquired by grant from the sovereign. The state, in such cases, holds the fee in trust for the public,' &c.

In the case of Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331, the United States Supreme Court said:

'In South Carolina, the rules of the common law, by which the title in the land under tide waters is in the state, and a grant of land bounded by such waters passes no title below high-water mark, appear to be still in force. State v. Pacific Guano Co., 22 S.C. 50; State v. Pinckney, 22 S.C. 484.'

This Court, in the case of Cape Romain Land and Improvement Co. v. Georgia-Carolina Canning Co., 148 S.C. 428, 146 S.E. 434, stated that:

* * * 'The title to land below highwater mark on tidal navigable streams, under the well-settled rule, is in the state, not for the purpose of sale, but to be held in trust for public purposes.'

The foregoing quote from the Cape Romain case has been criticized as being dicta only and should not be read to prevent private persons from obtaining title to tidelands. The State, through its attorney general, has consistently expressed the view that the statement is a part of the holding of the case and precludes sale of tidelands except by an act of the legislature.

In an interesting article on the subject 'The Law Pertaining to Estuarine Lands in South Carolina', written by William A. Clineburg and John E. Krahmer, Professors of Law at the University of South Carolina Law School, reported in Volume 23, No. 1, at Page 7 of the South Carolina Law Review, they state:

'In the opinion of the authors of this report, neither view represents an entirely accurate reading of Cape Romain. The...