State v. Head
| Citation | 498 S.E.2d 389,330 S.C. 79 |
| Decision Date | 06 October 1997 |
| Docket Number | No. 2732.,2732. |
| Parties | The STATE of South Carolina, Appellant, v. Singletary M. HEAD, Respondent. |
| Court | Court of Appeals of South Carolina |
Assistant Solicitor Lake E. Summers, Lexington, for appellant.
Randall M. Eason, of McMehan & Associates, Lancaster, for respondent.
The state has petitioned for a rehearing and argues our prior opinion was incorrect in several particulars. While we deny the petition for rehearing, we briefly address the state's contentions.
The state first contends this court "clearly misapprehended the facts" in stating that Mr. Satcher only owned a majority of the land surrounding the pond. The state did not present in the record a detailed map or diagram showing the area in dispute, so this court relied on the testimony at the magistrate's hearing. There, the following testimony was given:
Later in the trial, the following occurred:
The only map which this court was provided was the South Carolina Water Resources Commission Map, which did not reflect either the area in detail or the parcels of the nearby property owners. As best as this court can discern, therefore, the record reflects that a small portion of the relevant area at issue was not owned by Satcher.
The state seems to believe this court rejected application of the rule in Bott v. Commission of Natural Resources, 415 Mich. 45, 327 N.W.2d 838 (1982), based on our belief that Satcher did not own all of the land surrounding the pond. However, as the opinion clearly reflects, this was not the basis for the court's rejection of application of the Bott rule. Even if this court is in error in reading the above-quoted testimony as an indication that Satcher did not own all of the property in the relevant area at issue, that fact would not make a difference to our analysis. The state argues the court's statement, that the creek continues through the dam and on to the North Fork of the Edisto River, is in error, because, as the court also recognized, the dam physically blocks navigation past it. However, the court obviously was referring to the fact that the creek continues through the dam's spillway and on to the North Fork of the Edisto River. The state contends that no "valuable floatage" could continue through the spillway of the dam. However, we clearly held that occasional artificial or natural obstructions to navigability do not change the character of an otherwise navigable stream.
Finally, the state argues that this court was in error when we stated, "[t]his case involves a dam, which, if built on a navigable stream, is of course not built entirely on private property." The state cites State ex rel. McLeod v. Sloan Constr. Co., 284 S.C. 491, 328 S.E.2d 84 (Ct.App.1985), for the proposition that one who owns land adjacent to a nontidal freshwater stream has title to the center of the stream, absent reservation by the grantor. In McLeod the claimant could trace its title to a 1767 grant from King George III, and the court noted, "[w]e hold that under the common law as it existed in South Carolina in 1767 the [1767] Grant conveyed ownership of the soil to the center of the Broad River." 284 S.C. at 497, 328 S.E.2d at 87-88. There is support in South Carolina law for the proposition that in the case of a nontidal navigable stream, the adjacent property owner owns to the center of the stream bed and the public only has an easement to use the waterway. See McDaniel v. Greenville-Carolina Power Co., 95 S.C. 268, 78 S.E. 980 (1913); State ex rel. Columbia Bridge Co. v. City of Columbia, 27 S.C. 137, 3 S.E. 55 (1887). However, while we modify the opinion to reflect this proposition, it does not change our analysis or the result.
Accordingly, the petition for a rehearing is denied. The original opinion, however, is withdrawn and the attached opinion is substituted therefor.
The State appeals from the circuit court's reversal of Singletary Head's (Head) convictions for two counts of violating S.C.Code Ann. § 50-1-90 (Supp.1996), which prohibits fishing on the lands of another without the owner's permission. The main issue raised on appeal is whether the body of water on which Head was fishing is private property, or is "navigable" and therefore owned by the state and open to the public. We affirm.
Ben Satcher owns land surrounding Black's Pond, which is a 246 acre lake on Black Creek in Lexington County. At some prior point in time, one or more of Satcher's predecessors-ininterest dammed Black Creek to create the lake. Satcher also owns land adjacent to the creek below the dam, and Satcher testified he is assessed and pays property taxes for the entire parcel, including the land beneath the lake. The dam has a spillway, through which Black Creek continues to eventually link with the North Fork of the Edisto River. The dam blocks any navigation of Black Creek past the lake, and a boat would have to be physically carried across the dam and down the bank in order to continue down the creek.
Some time prior to March of 1995, Satcher repeatedly complained to the South Carolina Wildlife Commission about people fishing on Black's Pond, which he considers his private property. Satcher has posted "No Trespassing" signs near the entrance to the lake. In response to Satcher's complaints, a wildlife officer patrolled Black's Pond by boat in March 1995. The officer found Head and a friend in a boat fishing within the pond, and informed the two fishermen that the pond was private property. The officer also told the men they could not put their boat in the creek near a highway bridge some distance upstream. In August 1995, the officer again found Head and his friend fishing in the lake. Although the two fishermen claimed they were unclear as to whether they could still enter the lake since they had obtained permission to land their boat upstream, the officer told them Satcher would likely press charges against them. Satcher did so, but the officer was unable to contact Head, who works late shifts. In October 1995, the officer again found Head and his friend fishing on the pond, and he informed them that warrants were issued for the August incident and it was likely Satcher would press charges against them for the October incident. Satcher did so, and Head and his friend were each tried on two counts before a magistrate in November 1995.
At trial, Head testified he is a longtime resident of the Midlands who has been fishing, boating, and swimming in Black Creek since he was a young boy. He stated other members of the public have engaged in recreation at the area as well. Since the wildlife officer told Head he could not land his boat near the highway bridge, Head paid an upstream landowner $100 for a "leasehold" to launch and land his boat on the landowner's property. Finally, Head produced aerial photographs as well as a map entitled "Navigable Waters of South Carolina," produced by the South Carolina Water Resources Commission (Commission). This map, which reflects the Commission's determination of navigable waterways through its interpretation of the applicable statutes and regulations, lists and maps the relevant area of Black Creek as a navigable waterway. Although Black's Pond is not shown on the map or expressly listed, the map notes, "smaller lakes, although not listed, are considered jurisdictional waters if located on a listed navigable stream."
The magistrate ruled that since the dam prevents boats from travelling downstream without interruption, Black's Pond is not navigable and is Satcher's private property. The circuit court reversed Head's convictions, and noted that if placement of a dam along a waterway is alone sufficient to prevent navigability, "owners of property adjoining navigable waters across our state [could] dam whatever areas they wish to appropriate to their own private and exclusive use."
Head was convicted of violating S.C.Code Ann. § 50-1-90 (Supp.1996), which provides:
If any person, at any time whatsoever, shall hunt or range on any lands or shall enter thereon, for the purpose of hunting, fishing or trapping, without the consent of the owner or manager thereof, such person shall be guilty of a misdemeanor....
Thus, to be convicted, one must (1) hunt, range, or enter upon "any lands," (2) for the purpose of hunting, fishing, or trapping, and (3) without the consent of (4) the owner or manager of the land.
However, the South Carolina Constitution provides:
All navigable waters shall forever remain public highways free to the citizens of the State and the United States without tax, impost or toll imposed; and no tax, toll, impost or wharfage shall be imposed ... unless the same be authorized by the General Assembly.
S.C. Const. art. XIV, § 4. See also S.C. Const. art. XIV, § 1. Moreover, S.C.Code Ann. § 49-1-10 (Rev.1987) similarly provides:
All streams which have been rendered or can be rendered capable of being navigated by rafts of lumber or timber by the removal of accidental obstructions and all navigable watercourses and cuts are hereby declared navigable streams and such streams shall be common highways and forever free....
These constitutional and statutory provisions expressly sanction the preexisting...
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