State v. Pacific Guano Co.

• Decision Date: 21 November 1884
• Citation: 22 S.C. 50
• Parties: THE STATE v. PACIFIC GUANO COMPANY.
• Court: South Carolina Supreme Court

22 S.C. 50

THE STATE v. PACIFIC GUANO COMPANY.

Supreme Court of South Carolina.

November 21, 1884

1. When the state comes into her own courts to assert a right of property, she is bound by all the rules established for the administration of justice between individuals.

2. When the state sues for the recovery of land she can recover only on the strength of her own title; but as sovereign and the source of title, she may rest upon this prima facie showing, until the defendant makes proof that her original title has been divested.

3. The title to the soil in all navigable streams in which the tide ebbs and flows, remains in the state, and does not pass under her grant of the superjacent land; but tidal channels are navigable in law only when they are navigable in fact for trade and commerce by craft of some kind. Cases cited and reviewed .

4. Whether a cause is a " case of chancery" can only be determined by considering whether it belongs to that class which, previous to the constitution of 1868, would have been appropriately presented in the court of chancery.

5. Information by the attorney general on behalf of the state to recover damages for an intrusion upon her soil and to enjoin further trespass, is substantially an action for the recovery of real property and is not " a case of chancery." This court therefore cannot review findings of fact by the Circuit judge in such a case; but if the right existed, the findings in this case would not be disturbed.

6. A grant by the state of the lands on the shore of a navigable tidal channel, gives title only to high water mark.

7. Whether a grant can issue from the executive department of the state government for lands as " vacant" down to low water mark, not determined, the question not being raised by proper exception.

8. The acceptance of a grant in aid of title previously claimed does not estop the grantees from setting up any other prior or more extended title, if they can do so.

9. Under a deed calling for a boundary in the middle of the channel of tidal navigable streams, the defendant could not claim the presumption of a grant to the soil below common high water mark under color of title.

10. Can the state be disseised in such manner as to be divested of title either under the statute of limitations or by the presumption of a grant against her remonstrances? And if so could such disseisin be effected by a mere constructive possession for any length of time under color of title only?

11. The state holds the beds of the channels of her tidal navigable streams for the public use of her citizens; such property may be disposed of by an act of the legislature, but may not be granted by her officers as " vacant land."

12. It not having been the policy of the state to part with her right to such beds of channels, an act of the legislature making a grant of any part of them cannot be presumed.

13. For these reasons, a grant from the state cannot be presumed in favor of one who after purchase of several grants bordering on both sides of tidal navigable streams, caused all these lands to be included in one survey and plat, and thereafter held under such plat claiming the whole.

14. The fact that the state had granted the right to another corporation to dig and mine for phosphates in these streams does not prevent the state from bringing this action to assert her title to the soil.

15. The value of the phosphates taken by the defendant corporation from the soil of the state should be estimated at the value of the phosphates, less the amount defendant has added to their value by their removal and preparation for market defendant having acted under an honest but mistaken belief in its right to these phosphates.

Before WALLACE, J., Beaufort, November, 1883.

The opinion fully states the case. The Circuit decree was as follows:

This information, on behalf of the state, alleges as the cause of action that the defendants on the first day of August, 1882 and at divers times before and after that date, at Palmer's creek, otherwise known as Fisherman's or Sheephead creek, at Big creek, at Haulover creek, at Horse creek, at South Wimbee creek, and at Chisolm's otherwise known as Frenchman's or House creek, navigable waters in the County of Beaufort and State of South Carolina, useful for the purposes of trade and commerce, and in which the tide from the sea ebbs and flows, did intrude upon the rights and property of the State of South Carolina, by removing from the beds of the streams named before, below high water mark large quantities of phosphate rock and phosphatic deposits, and converting the same to their own use, and demands damage therefor and an injunction to perpetually restrain defendants from continuing the acts complained of. The answers of the defendants are in substance a denial that the beds of the creeks named are the property of the state. Whether they are or not is the leading question in the case.

The state rests her claim to the property upon her rights as successor to the British crown to the fee of all vacant ungranted lands in the limits of her territory. 3 Kent's Com. , 377, 521. The defendants, admitting this right of sovereignty, claim that their grantors having been in possession of the beds of these creeks and holding them adversely for a century, they are entitled to the legal presumption that they entered under a grant, and that the title of the state is now in these defendants.

The legal rule under which defendants claim is certainly well established, and nowhere more clearly stated than by Mr. Justice Evans in the case of McLeod v. Rodgers and Gardner , 2 Rich. , 19. Says the learned judge: " Ever since the case of McLure v. Hill , 2 Mill Con. R. , 420, it has been regarded as the settled law in this state that twenty years' continuous adverse possession is as good a title as a grant or a deed, where there is an absence of any of those facts which go to rebut the presumption. After a possession continued for so long a time undisputed by any, and acquiesced in by all, the law will presume that the possession in its incipiency was rightful, and that the tenant when he took possession did so under a grant or deed, or whatever may be necessary to invest him with the legal title. He who claims under a presumption of a grant is entitled to stand on the same ground as if he produced the grant. The law substitutes the presumption in place of the grant." These principles have been frequently affirmed by the courts of the state since the case of McLeod v. Rodgers . See Riddlehoover v. Kinard , 1 Hill Ch. , 378; Godfrey v. Schmidt, Cheves Eq. , 57; Boyce v. Lake , 17 S.C. 481.

The defendants, with the view of bringing themselves within the scope of the rule first stated, produce and put in evidence the will of Mary Bull, dated May 1, 1781. This will devises " all the lands included within the ditch of Bull's Island, in Prince William's parish," to Daniel Blake, Miles Brewton, and Arthur Middleton, in trust for her granddaughter Mary Butler. Defendants also put in evidence a conveyance which recites the will of Mary Bull above referred to, and conveys " all that plantation, island, or tract of land situate, lying, and being in Prince William's parish, in the state aforesaid, containing by estimation four thousand (4,000) acres, more or less; butting and bounding to the south, southeast, and southwest on Coosaw river, to the east and northeast on Bull river, north, northeast, and west by certain tide waters flowing from Coosaw and Bull's rivers into a creek or channel commonly called by the name of Bull's ditch."

These instruments, both the will and the deed, describe the land penetrated by the creeks in question, and defendants establish an unbroken chain of paper title to themselves down from these papers to the present time, and claim that their grantors and themselves have held the land adversely under this color of title for a much longer period than is sufficient to raise the presumption of a grant. The case of McLeod v. Rodgers, supra , is authority for the rule that for the purpose of making out a state of facts upon which to predicate the presumption of a grant, the possession of grantors and grantees may be connected.

In reply to this ground it is insisted that as time does not run against the sovereign, a grant cannot be presumed against the state when she comes into court to establish her proprietary rights, and that such defence can only prevail in actions between individuals. And, secondly, it is insisted that no such adverse possession of the beds of these creeks has been established as is necessary to raise the presumption of a grant, even if such presumption could be set up against the state. In regard to the doctrine of nullum tempus interposed in answer to the defence, it may be observed that until a recent period, when the state by her own act provided otherwise, the statute of limitations did not run against the state, and no proprietary right of hers could be barred by it. The reason of the rule is twofold. First, because the plea admits the right, but claims that it is barred by laches, and laches cannot be imputed to the sovereign. Second, because an intrusion or trespass upon the land owned by the state does not operate to dispossess the state, and there is no time of ouster from which the statute could ever begin to run. 1 Bl. Com. , 247; 3 Wash. Real Prop. , 191, 159, and cases there referred to; Harlock v. Jackson , 1 Tread. , 135; State v. Arledge , 1 Bail. , 551.

The presumption of a grant, however, proceeds upon different assumptions. " One who claims under the statute was a trespasser throughout, and his possession began in a trespass and so continued until the statutory time had run out." McLeod v....