State v. Hardee

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

(193 497) E. (2d) S. Schneider, Cecil W. of Georgetown, Appellant, Esq., for McLeod, Gen., and Edward B. Messrs. Daniel R. Atty. Gen., Latimer, Columbia, Atty. Respondent Asst. for Charleston, Buist, Moore, McGee, of Messrs. & Smythe Curiae, Amicus

November 1972.

Moss, Chief Justice: herein, in Carolina, of South respondent of all its in this action tide- alleges ownership complaint Carolina, between the lands South this area being the mark, usual water mark and the usual low water land, mark, the usual low water and the this submerged It further the area below the usual low mark. being in trust for the people that it holds thereto alleges the State.

It from the record appears Hardee, D. Claire herein, appellant obtained a deed from Lindler, Carrie L. 6, 1964, dated August to her lots purporting convey 49 and 54 as shown on Bull, a L. dated plat by Jr., July J. 28, 1938 and further shown on a 16, 1967, dated March plat, prepared by Legare Hamilton. Said lots on being Pawleys Island in As Georgetown it County. from said appears plats, these lots are bounded on the northwest Salt Creek on the southeast Avenue by Myrtle and on the northwest and southwest other lots in the subdivision. This action involves the aof certain ownership tidelands strip ex- from Island tending Pawleys toward mainland which is lots. aforesaid The respondent instituted this action against ap- to restrain pellant her or enjoin for her anyone acting stead, and in her trespassing upon, filling, or constructing otherwise the natural state so changing of much of said lots as constitute tidelands. answer, The in her appellant, denied the material of the allegations complaint her alleged of lots the ownership down to the question usual low water mark Salt Creek on said along Island. Pawleys

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

“A land, or plantation tract of three hundred containing sixty-six acres the (surveyed 25th January Situate 1942). Island, District on Georgetown waters Pawleys Atlantic Ocean North bounding by an Inlet East the by Alston, Ocean South Creek, Col. T. P. by West aby Having such form and marks shape, as are represented aby plat hereunto annexed, ...” Attached to said deed is a made plat a war- pursuant n

rant, 22, 1842, Hucks, dated from January S. R. Com- missioner of Locations for District. Georgetown Endorsed said is a certificate upon plat by Benjamin reading Johnson as follows:

“I laid out Frazier, have to Col. Peter a W. tract of land acres, three hundred containing sixty-six, situated in (366) Atlantic Waters of the Pawleys said District on Island Ocean, Ocean, Inlet, North an East by East by Bounding Creek, Alston, P. a by South T. West by Having Col. has marks as The Island forms and are shape, represented, Allen, but is survey this been originally granted Joseph of a new grant.” for purpose obtaining It is that Col. Peter W. Frazier was prede- admitted may she cessor and whatever interest appellant mark and between usual water high have the area or usual mark an upon interpretation low water depends to him the State of South Caro- construction of the grant under the lina. The issue here whether language Peter of W. said the State Carolina Col. South land to usual low water Frazier the owns the appellant mark.

This on for case came trial Term of the April at Pleas Court of for trial Common The Georgetown County. fact, submitted to the lo- of judge jury, question cation the usual water mark of the high area in contro- determined that the usual mark versy. jury The water high of lot 54 was one hundred four fifty feet from (154) There Avenue. was no from way Myrtle right appeal this that the parties usual finding. agreed mark of lots 48 at right way Myrtle advisement, took Avenue. The court under as a question law, or construction of the interpretation Peter the State of South Carolina to Colonel W. Frazier. is The trial found and concluded that Salt Creek judge There a stream. was no from this appeal finding navigable found, the the of fact. also in interpreting He grant of Peter and State Carolina to Colonel W. Frazier South the annexed that the had failed to prove plat, appellant and the to the the water land between usual mark high concluded, the usual low also water mark. He assuming title to the described in it land the appellant grant, proved the title to “the did not follow that low water proved

539 mark.” The trial found judge that the lands below the lying usual 48, water mark on the high said of lots plat 54 are owned the State South Carolina. appellant prosecutes to this appeal Court alleging

error on the of the trial part had judge that finding she failed to title to the land prove between the usual water high mark and the mark, usual low water the error being under the of the language to Colonel grant Peter W. Frazier in 1842 the appellant owns the land to the usual low water mark.

We held have that in of the extent determining of a

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

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

* * * “In all from the grants government subject, the terms of the are be taken most strongly against and in favor of the grantee, the rule grantor, reversing individuals, as between on the ground that sup- to be made at the solicitation posed and the grantee, form and terms of the particular instrument grant pro- him and posed submitted to for its government al- 540 to a where such rule a case applies

lowance. But this fortiori to is claimed individual by proprietors a grant government land, a but also be not a of title conveyance merely held domain the government of which public ” * * * relation, for use. public in a general fiduciary with comes into court a presumption The respondent would is to she prevail title and if the appellant of her own title recover upon strength have to 22 v. S. C. Pinckney, make State proof. which she must 484. Co., 50,

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

“So conveyance ‘westerly bounding cludes the shore or land low and water mark. high between sea, The same is the rule land is bounded where the by or an arm The of the sea. between and low space ‘shore,’ be- mark border of the sea is called the common law by the longs sovereign, precluding, course, other unless any acquired claim person, state, cases, holds the from the sovereign. fee trust for the public,” &c.

In v. 14 Ct. the case of 152 U. S. S. Shivley Bowlby, said: 38 L. Ed. United States Court Supreme law, Carolina, “In the rules-of the South common . state, and a title in under tide the land waters no title below land bounded such waters passes mark, to be still force. State v. high-water appear Co., 50; Guano 22 S. C. State v. 484.” S. C. Pinckney, Court, This the case of Romain Land and Im- Cape Co., Co. v. provement 148 S. C. Georgia-Carolina Canning 428, 434, 146 E.S. stated that:

* * * “The title to land below mark on tidal high-water streams, state, rule, under the well-settled navigable sale,, not for the but to be held in trust purpose public for purposes.” from Romain case has been foregoing quote Cape

criticized as dicta be and should not read to being pre- vent from title to tidelands. The private persons obtaining State, ex- its has consistently through attorney general, the view that the statement is a of the pressed holding part of the case and sale of tidelands an act by precludes except of the legislature.

In an article on the interesting “The Law Per- subject taining Carolina”, Estuarine Lands in South written by William A. Krahmer, E. Clineburg Professors of John Law at the School, University South Carolina Law re- 1, ported Volume No. at 7 of the South Page Carolina Review, Law state: they

“In the of the authors of this neither opinion report, view an accurate Ro- represents entirely Cape reading main. The writers believe careful of the that a examination case leads to the conclusion that the actual and necessary Romain is that tidelands Cape are owned holding State in trust for the and that people,, any grant pur- construed; will be but ports convey very land strictly this is not be as that such lands can never sold say might above, rather that be indicated but language quoted to sell the method of sale remain ability open ques- under Cape tions Romain.

“It is also the writers that opinion present Romain is accord with the fully early holding Cape case of Guano Romain is con- Cape quite sistent with that earlier opinion. contend, therefore,

“To Romain overturned Cape into the and introduced prior legal uncertainty principles Indeed, law is a well-taken. if case not point anything, rules of the common law.” reaffirmed long-standing The view in the Romain case is supported expressed v. S. C. what this Court said in Rice Plantation Hope Auth., Pub. Ser. E. S. C. 59 S. (2d) follows: us contain

“The briefs on both sides in the case before land ly- much on the discussion subject ownership mark normal mark and low water between ing streams, of title on tidal and as to the navigable acquisition in the thereto adhere to our owners. We by private opinion case Romain Land Co. v. Georgia- of & Cape Improvement 434, 438, Co., Carolina 148 S. C. 146 S. E. Canning it said: ‘The title to land below high- wherein was supra, streams, mark under the well-settled water on tidal navigable rule, sale, to be state, is in for the of but the not purpose deem it held in for But we do not trust public purposes.’ under or this to determine necessary proper upon appeal method, title what circumstances and what if any, might owners, be any ownership because by private acquired be, of would in our to the dominant subject power opinion, to control and regu- government Federal) (State late waters.” navigable Ro adhere the rule announced in the Cape

We Rice Plan Hope main case and reaffirmed in the tation case. brief,

The in her that under the rule appellant, concedes announced in the Guano and Romain cases the mere stream as a would boundary naming navigable water mark. The ad- carry only high appellant mits, is, “If that were all the evidence there the line would at the water mark.” stop high The deed or the State South to Col- Carolina onel Peter W. Frazier is states the lands described therein bounded “west a Creek.” referred Admittedly, Creek to is Salt Creek. The deed plat annexed shows the west or northwestern is a Creek There boundary (Salt). on the deed or the low nothing water plat gives mark of Salt Creek as the boundary.

In the absence either in the deed specificlanguage, or on the that it was plat, intended showing go mark, water below be high the land tween and low water remains high mark in the State trust for the benefit of the The burden was public. upon her appellant title to the land to prove the low water mark on and, Salt has therefore, Creek. She failed so to do cannot prevail.

We concede that the trial correct judge holding that the title to the water mark appellant acquired high and that the land below usual mark on lying lots owned plat 54 are respondent. is over-ruled exception appellant judg- is, ment below

Affirmed. concur. JJ., Littlejohn,

Lewis Bussey concur in result. JJ., Brailsford, in : Bussey, (concurring result) Justice This for presents decision a narrow appeal single, sole contention is “under the question. Appellant’s Frazier her title extends to the usual language” grant low water mark of The holds Salt Creek. majority opinion she has the low failed to her “title to the land to prove Creek”, water mark on Salt is of her ap- dispositive I and to this limited with peal agree majority extent opinion.

There is in the record to show where nothing precisely the lots of the are located with reference to the appellant to and made a of the Frazier She attached

plat part grant. claim, offered of her save the Frazier nothing proof has. or dis- minor no courses and With one exception, plat. tract a some- tances shown on The is said plat. depicted are creek as the one and the shown thereon what elongated rather course western runs a boundary meandering approxi- to the beach or front on the eastern ocean mately parallel or side of island. mention of either express high No or indicated on the The word plat. water mark made low of the “marsh” at one within point perimeter appears area, on that immediate markings portion platted considerable marsh- of the seem to indicate that plat would There is nothing, land was included within perimeter. however, indicate what marshland to just mark. below usual lay high on the of the solely Since relies “language grant” appellant mark”, two her “usual low water to establish title to the of her the decision govern established rules construction rule, certain 1. As a with exceptions contention. general Blackstone, not since days recognized prior are be taken here the terms of a pertinent, sovereign grant most favor against grantee strongly evince contrary In the a 2. absence anything grantor. land, tidal, a navi- intention, the State giving no title land below boundary, stream as a passes gable State v. Co. the usual water mark. Guano 50; v. 22 S. C. Pinckney (1884), 22 S. C. State (1884), 484; v. 152 U. 14 S. Ct. S. Bowlby, Shively v. Romain Land & Co. Ed.331 Imp. L. (1894); E. S. C. 146 S. Can. Co. (1928), Georgia-Carolina 434. in- construction somewhat rules of were foregoing Romain case. Of stated the Cape

eptly incompletely course, subservient to the pri- rules construction are all should endeavor ascertain the courts mary rule that As said effect to the intention parties. give v. Pinckney, supra: 545 “We are aware that natural named as bounda- objects ries are location, entitled to much but weight questions at last the true criterion in such cases is the intention of the parties.” the rules the in-

Applying of construction to foregoing situation, stant where the of the is re- only language grant lied title of the does upon, not extend to low water appellant mark the absence of some the or ac- language grant was intended companying plat, boundary that showing to be the “low water mark”. She in either points nothing or the content of language the accompany- ing plat evincing any intent. specific what, The if marshland question any, below lying usual mark was intended to be and/or the Frazier is not before the granted by presently Court and could not be decided without the properly joinder of various other influenced parties. majority opinion, case, no doubt an statement of the inaccurate attributes an respondent’s complaint allegation ownership whereas, Carolina”, tidelands State “all in South asserts the only claim State complaint actually the tidelands of the three lots claimed comprising I be would careful avoid by appellant. any possible prej- udice to the not before Court and hold parties there is no merit in sole contention that her title appellant’s to land is the “usual low water mark” estab- extending lished of the Frazier language grant.

Aside from my principal objections majority opin- ion, I deal with one statement therein which briefly possibly said, alia, some comment. is inter justifies It State title”, “comes into court with a is the presumption correct rule to land which has never been applicable granted but which no by the when land has sovereign, longer applies v'.Evdns, been once Stdte C. S. E. granted. S. 697. It at doubtful that the is entitled to least in this case since on Frazier presumption legend had been showed that the island thereon previ- plat depicted one Allen. to ously granted Joseph into view, needlessly In the my majority opinion goes of the to a decision matters not necessary controversial to Court, and adds thereby issue before the narrow' single, now for a half that has existed the considerable confusion as to the of South Carolina with law century respect unsuccessfully, I so far tidelands. have urged my colleagues, or, the failing to either delete major opinion portions bench, trial the bar such, for the edification of the to clarify intent of the the and meaning and the generally, public majority. us, should have as of the ages taught

If the experience lessons, possibly jurists, any truly important appellate be we should one of well most all might important in and to avoid troubled wading maintain a constant vigil so is totally unnecessary tumultuous waters when doing I into us. venture Personally, cause before the decision ef- unsuccessful my waters because these troubled clarification, and in the or either deletion forts to obtain be of some may hereinafter made that the observations hope bar, even to bench and possibly to the trial and help in and exist- dissipating in the future clarifying, this Court to, law of tidelands South Carolina. confusion as ing should restraint which we volun- Aside from the judicial we, exercise, in case per- instant upon petition, tarily an amicus curiae brief. and mitted the intervention filing intervenor is a citizen prominence, The amicus curiae he and being represented promi- substance high repute, who, members of this Court counsel, capable nent law know, made an of tidelands study well has extensive brief urged amicus curiae’s Carolina. The petition South narrow to restrict its decision the single, ques- this Court avoid deciding anything tion raised appeal unnecessarily jeopardize rights which might situated, other similarly amicus curiae and various persons not now before this Court. substantial reasons Quite why should so view, Court confine itself are set forth. In my petition amicus curiae was most appropriate with, no sound reason has been for not suggested complying his most I request. majority opinion, unfortunately, think, the amicus curiae and his sound simply ignores quite position. views

Despite any as to the law divergent appertaining tidelands, I believe it safe to that all say judges therewith, all lawyers, at certain familiar will agree Romain, contained language opinion and par- the sentence Rice ticularly with in the repeated approval Hope case, and, has to in the rise given great controversy, writer, humble of this to utter confusion. The ma- opinion the existence of con- jority opinion clearly recognizes great evidenced, alia, as inter troversy, from the quotation Krahmer, article Professors in Volume Clineburg 1,No. at 7 of the South Carolina Law page view.1 The opin- ion, however, goes on to simply restate and to adhere to rise language gave in in- controversy the first stance, without at all what intimating considers majority and effect thereof to be. meaning is

While there other in the language Cape Romain opinion which contributed to the confusion, controversy the most controversial sentence: following “The title to land below mark on tidal high-water naviga- ble streams, under rule, state, the well-settled is in the not for sale, but to be in purpose held trust for public purposes.” view, sentence,

In this my like the earlier statement in Cape Romain that “the of land between 1 majority, interesting, Like the I find probably this article for quit^ reasons, different more but persuasive. not at all even Much authoritative or comprehensive depth appertaining and in law articles on the submerged tidelands and in South lands Carolina have been heretofore published Horlbeck, in the South Carolina Law Review. Marsh Titles to I, Carolina, 288; II, 335; in lands South Part Part SCLQ 14 SCLQ Williams, Logan and in Study Tidelands South Carolina: A in the Law Property, Real SCLR 657. in benefit

low mark the state trust for the remains likewise, interest”, its was dictum repe- pure public dictum, case no Rice as that tition in was pure Hope or decided directly involved issue of title tidelands the attention court decrees Circuit coming the Court. who have most trial judges indicate that the writer would in accord substantially had to consider such are occasion Romain controversial writer’s with the view of the attorneys Most are most accord certainly language. Carolina, are students South who coastal practicing however, Obviously, in the law of tidelands. and experienced this has some language are convinced my colleagues it, and adhere to repeat would not they sound else meaning, this leaves Since the majority opinion but meaning? what unanswered, I be might helpful think it question I understand set forth what bar me to here bench and for does not mean. the language to concede that my colleagues seems to if face, sentence it say, controversial On its were not says really tidelands anything meaningful, been never had own- private thén and subject I con- To the undertsand contrary, my colleagues ership. in this are now and have always cede that tidelands In private ownership. been of lawful subject correct, idea that any are eminently this concession they tidelands to convey lacked the power private State interests, and to Cape or both subsequent persons prior as Romain, both and history, is law contrary completely reference to decisions by can be demonstrated readily judicial contentions to and of the General Assembly, any various acts the contrary notwithstanding.' of the law ap-

For a proper understanding like anything in' it important to tidelands South Carolina pertaining to which the situation in rhiñd the factual particular keep Lands addressed. was immediately the Court language and to streams and also immediátely adjacent underlying water, both- and -of tidal navigable, other bodies which are

549.; have been described, variously classified or by,: categorized writers and the tends to become terminology confusing the casual reader or observer. For the of the purpose follow- remarks, however, I ing shall use term as “tidelands” those affected the ebb indicating and flow of the tide and by between the usual or lying and ordinary low marks; I shall and use term lands” as de-. “submerged those noting covered water constantly by at low tide usual streams, the beds of or forming other navi- navigable water, bodies of gable wherein the tide ebbs and flows. is, course,

It a truism that no is owned property by in a in one sense all strictly private capacity State owned is held in property State it trust for the In sense, however, interest. a strict in public this jurisdic-' tion it is “tidelands”, not lands” and “submerged have been held traditionally in trust sovereign. rule lands is set' forth in v. submerged Pacific Guano, 22 S. C. the following language:

“The state had in the beds of these tidal channels not title as the jus property, more, privatum, but something jus publicum, consisting rights, powers privileges derived from crown, the British belonging gov- head, which erning she held in a for fiduciary capacity gen- eral and use; in trust for public the benefit of all the citizens state, to which respect she had trust duties to perform.”

In this connection the majority contains two opinion from which it is quotations that the same seemingly implied trust exists with relationship to tidelands. In the respect Guano, first from State v. quotation Mr. Justice McGowan was speaking only lands. The sec submerged 484,. ond attributed to State quotation v. S. C. Pinckney, is, fact, an from incomplete Washburn on Real quotation contained in the in State v. Property Pinckney. opinion line, the same and of the same Along import, opinion, the, Romain contains an from incomplete quotation 550 Jordan, 838, 11 S. S. of Hardin v. Ct. U.

case Hardin text in the A of the complete L. Ed. 428. reading the contro- shows that it does not support rather clearly case Romain. contained in Cape sentence versial tide- from its this State Historically beginnings lands, treated lands, were to submerged as opposed of South Caro- the State Lords Crown Proprietors, ownership and private lina as lands subject vacant until the lands, 200 years, for at least as other vacant any of discovery following of certain limitations adoption eco- Indeed, historical fact that it is an beds. phosphate its history much of of the State throughout nomic welfare lands of rice the cultivation upon was largely dependent The owned tidelands. lawfully privately which were granted, has nowhere Carolina law South controlling pertinent set forth than in the decree Judge been more clearly J. J. The The State v. South Carolina Maher in the case Mines, Limited, Point alias Oak Company, Phosphate in the S. C. from but appendix never printed appealed Mr. McGowan who at the at page suggestion Justice v. of State in both the cases leading wrote the opinions v. v. In State Pinckney. Guano Pacific to Judge Mr. McGowan referred Company, Guano Justice as “able” and part Maher’s circuit decree being quoted Point Mines case was therefrom. At issue the Oak and, acts of after numerous reviewing title to tidelands follows: Maher concluded as Judge legislature, mind, are, con- “These citations from our statutes to my show un- They under consideration. clusive of the question mark in tidal navi- lands below mistakably been uniformly legisla- rivers have recognized gable lands, vacant ture as embraced within description under the location and grant general such to subject interpretation land office. This practical regulations in accordance being of its own language by legislature, law, it bears -in there meaning with the comprehensive would seem to be an end to the question whether of a grant land low to water mark in the bed of a tidal navigable stream, issued in conformity of of provisions the act the of title the passed state the grantor.”

An analysis of the in State v. opinions Guano Pacific and State v. the Pinckney, decrees in circuit from appealed cases, those cases, the issues in involved those respective think, show I a conclusively, of unanimity on opinion part Court, then members of this the circuit judges and the participating, General of the State that Attorney law as above set forth by Maher with tide- Judge respect to was, time, lands at the the well established law clearly South Carolina.

In Wheat, Frampton v. C. 3 S. E. S. Court was concerned with the title to a of a tract portion of 779 acres of in marshland west of the River Ashley Charleston which County, contained no grant express reference to low water mark. The was taken out in the grant usual way land, vacant the marshland granting granted adjacent and, River being Ashley necessity, being in of tidelands. The part composed Court upheld the both v. grantee, citing Guano and Oak Point Mines cases as for the authority proposition the State had the to so In marshland. right Cape Romain all the involved bore dates grants the deci- prior sion of the cases hereinabove cited. It just naturally follows that the and effect were validity of these controlled grants established law as long set forth recognized and/or the cited decisions.

It should be borne in mind that the Romain case arose under then actually recently enacted Coastal Fish- Law, eries. now Code Secs. 28-751 et which ex- seq., from the thereof empted operation tidelands theretofore “conveyed by the General Assembly or lawful with the State.” The compact real issue the Cape Romain case was title to certain beds. oyster aOnly small relatively

552' for in the the vast called several acreage grants course,

was involved actually Oysters, proceedng. mud banks or thrive land submerged upon upon thereto, flats are covered immediately adjacent do not occur of the time. They water for greater portion far removed from sub- the vast reaches of marshland land. merged

In claims to the order for the to sustain their plaintiffs streams”, adja- beds “in the immediately oyster navigable State, it owned cent lands submerged to low water incumbent them to title prove precisely upon Romain the- trial mark. In the final analysis, Cape upheld fact, in this law the upon Court judge’s finding binding evidence, had case by competent plaintiffs if supported failed to lands between low to title prove beds the oyster mark “in streams” navigable containing The committed. were trespasses which upon alleged not, think, on how much did I even attempt pass Court from channels of tideland, navigable far removed not, streams, in the various was, or included grants. think, I that fourteen significance, It is of some possible in Romain the issue m the course opinion times had stated, substance, the plaintiff proved whether The streams”. mark in navigable “low water title to “in”, “on”, “navigable than preceding rather preposition end the opinion once near the streams” appears only created has which sentence hereinabove quoted, the single infer- rise to the possible so Such controversy. much gives "on” than rather use ence that the preposition of a or the result “in” was either inadvertent preposition had the preposition clerical or error. Even typographical used, “in”, the sentence would still “on” been rather than one, but I think have may given not been an accurate have event, In what accurate rise much less any controversy. has, is con- if any, and sound this sentence meaning Romain, with remainder sistent with the opinion the established thereto, law prior deci- subsequent Court, of this sions is not at all to me. One apparent thing, however, I certain, think is the author of the opinion the Court did not intend to as is now sometimes ar- say, that tidelands in gued, this State were not and never had been subject grant as vacant lands and consequently private ownership.

Indeed, the shows the opinion clearly Court contrary. dealt with the rules of construction governing grants; examined the in an grants effort ascertain the intention examined parties; to see if plats they threw any light intention of the upon examined the parties; evi- dence, aliunde the and the in an effort to grants ascer- plats, tain the intention of the and further parties, examined the evidence as to whether it was sufficient to prove adverse none of possession, which would have been neces- if, indeed, sary the tidelands were not subject private ownership.

That the Court itself attributed no such meaning is, indeed, controversial sentence further shown clearly Fisheries, decision Jones v. Board 161 S. C. E. 159 S. decided three after just years Cape Romain. Carter, the author of the Romain Cape and opinion, Justice all other then Watts, justices Chief de- sitting (save Justice in the in ceased) unanimous the participated opinion Jones Romain, case. Like Jones Cape arose under the Coastal Fisheries Law and involved beds located tide- oyster upon tidelands, lands. Jones claimed title to such the beds oyster which were to be upon leased one from sought by the Corey Board of Fisheries. The Court the approved fol- procedure in lowed Romain the case as for being appropriate .the tidelands, of purpose title to hold- determining the particular alia, inter had a ing, constitutional to trial right Jones to his claimed by jury as title to the tidelands. Obviously, if not to and subject ordinary a grant private ownership, trial as to would jury have been an exercise futility. vein, as on this the constituted presently

While Court are, fact, has to subject that tidelands recognized as of the recent case by witnessed private ownership 174, McEachern, E. Lane v. 251 S. 162 S. C. (2d) Co., v. Land the case State Yelsen 185 S. E. (2d) of that in a con- decided this wherein it was held year, State, a of as well as as the title tidelands troversy thereto, by jury. claimant entitled a trial private Federal, cases, of enactments of and the The both State tidelands are consistently recognizing legislature owner- have been subject private always numerous that citation in South are so Carolina ship For commentary unduly lengthy. render this thereof would of study care to of those who pursue benefit might decisions, as as well some some of subject, Maher’s statutes, in those cited Judge opinion addition to be in an case, Mines Point will cited appendix The Oak hereto. re- in the Rice case view, however, the dicta Hope of

In Romain, and from Cape to the dictum and adhering peating tide- as to whether title to doubt therein intimation of method, by any could be acquired owners private lands immed- two cases in point, to deal with it be important may Rice which to my Hope, and succeeding iately preceding Rice utterances to be dicta. Hope show the clearly mind Rice there was decided case before Hope year Charleston, 215 S. C. Ehrhardt v. Council City in this case were certain S. E. Involved (2d) (1949). within the Ashley city tidelands on the east side River Charleston, dedicated Colonial limits of previously Charleston, a common for the City Government a sell portions statute authorized Council to City build- for the erection an corporation apartment thereon, Pertinent statute and sale ing being said upheld. issue here of the Court following language the Ehrhardt case:

5SS and the. embraced within “Historically judicially, lands the Province of South are succession in Carolina vested by the State of South Carolina on the with freedom complete State, of the part arm legislative subject limitations, constitutional and use declare the ownership State, all lands within the boundaries of the and to public provide for the of such lands retention disposition and/or in such manner deem as the State government might proper.”

The year in Rice the decision the Court following Hope, decided the case v. Jasper County, County Beaufort S. C. E.S. 421. The in the case was issue (2d) whether the transfer of a County of Beaufort Jasper County would sufficient in Beaufort leave land area to meet County the constitutional of minimum requirement size. The decision on turned whether or not marshlands waters, either, and inland or constituted area for the pur pose constitutional provision. special report referee the case was confirmed the circuit by judge, Court, Supreme curiam per opinion, adopted of the referee and it report made of the Su judgment Court, preme Court found it except Supreme un to decide whether or necessary not “inland waters” consti area tuted within the meaning Constitution.2 The crux of the decision is found in the following language the referee Court: adopted by the

“I am of the hold, so opinion, that the soil under water between and low mark high water constitutes land. Guano, See SO, State v. 22 C.S. (decided in 1884) and decree of Circuit Court Maher in Judge State v. Oak Mines, Point reported order of the Supreme Court in water”, Reference to record shows that the term “inland as used report surveyors, them, of the official defined consisted primarily tideland, submerged flats, land but included some i. e. mud land, immediately submerged adjacent did support vegeta which not tion. The bulk of the involved tidelands was embraced within the term “marshland”, surveyors defined as “the area covered intermittent ly by in the during normal supports vegetation tides rushes, grass form of marsh grass.” needle to Volume It Appendix Reports. South Carolina

therefore follows that land likewise marsh and inland water land, constitute and subject ownership.” state private to took appellants specific exception foregoing in South Carolina that all tidelands holding, contending held State and the thereof belonged citi- benefit of all the State in its for the sovereign capacity State; were zens of the hence the tidelands there involved Beaufort authority by not to claim control or subject within the and that not constitute area County such did reliance of the constitutional provision. Principal meaning Romain, with the controversial sentence Cape was upon contra, are To the respondents which we here concerned. in the Point Mines the circuit decree Oak solely relied upon discussed, case, and cited and relied hereinabove upon Here, Romain where Cape the year following referee. n Court, we a clear before the have actually the issue was Point Mines case and a-flat rejec- reaffirmation of the Oak that the controversial any tion the Court thought dicta, Romain, in Rice Hope dictum in Cape repeated ordinary not subject tidelands were meant that and private ownership. before year demonstrated that is thus clearly

It where the Rice Hope, the year following Rice Hope issue, not it was concerned with the Court'was really and always are held that tidelands but recognized, expressly in the ownership private to grant have been subject of South Carolina. Cape of both I the controversial language While regard real dicta, if such has any to be Rice Hope pure Romain and with be consistently squared can or effect which meaning decisions of Assembly General acts many Romain, I Court, and subsequent both prior this do brethren so per- If my such. cannot perceive personally com- or not will they whether them decide ceive, is for it bench to the trial or concepts, their concept, municate such, the bar. it of some Failing may prove help, particularly bench, to the trial know least do my at colleagues not contend or intend to hold are that tidelands not subject this private State. ownership J.,

Brailsford, concurs.

APPENDIX FEDERAL CASES United States v. 121 106 affirmed 188 Lynah, F. (CCSC); 445, 349,

U. S. 23 S. Ct. 47 L. Ed. 539 Williams, United States v. 188 F. 50 affirmed 104 (CCSC) 485, U. 23 363, S. S. Ct. L. 47 Ed. 554 Caines, Chisolm v. F. 67 285 (CCSC)

STATE CASES South Carolina Toomer, R. v.Co. 9 Rich. 270 Eq. (1857) Chisholm, v. Heyward 11 Rich. 253 (1858) Chamberlain v. Co., 399, R. Northwestern 19 41 S. C.

S. E. 996 (1894) Nathans v. 386, 57 Steinmeyer, S. E. C. 35 S. 733 (1900) West End Co. Development Thomas, v. 229, S. 92 C. 75

S. E. 450 (1912) Gadsden v. Co., Westshore Inv. 172, 99 S. C. 82 S. 1052 E.

(1914) v. Haesloop Charleston, Council City 272, 123 S. C. 115 of S. E. 596 (1923)

Intendant and Wardens Town Port Royal v. Charles- of Co.,

ton & W. C. R. 525, 136 S. 134 C. S. E. (1926) 49.7 Cheves v. Charleston, Council City 423, 140 S. C. 138

S. E. 867 (1927) COMPREHENSIVE CIRCUIT DECREES UPHOLD-

ING PRIVATE TITLES TO TIDELANDS IN- : CLUDE

Decree of Judge McEachern, in Lane v. Singletary 251 272,

S. 162 C. E.S. 174 (2d) "from decree Unappealed of Circuit Morrison Judge in v. East Co., Grove Cherry Realty Horry 1968 County,

558 from decree Circuit Rosen in Unappealed Verona- Judge McLeod, al., et Chemical v. Berkeley Pharma Corp. 1969 County,

ACTS 1783, Act of 13 7 Stat. 97 August 1786, 722, Act of 1306 11 March 4 Stat. No. 1787, 1373,

Act of March 38 Sec. 4 28 5 Stat. No. 1798, 335, Act of 21 Dec. 1703 5 Stat. No. 382, 1800,

Act of 20 Dec. 5 Stat. No. 1749 1847, 437, 3024 Act of 17 Dec. 11 Stat. No. 1868, 130, 14, 14 as amended and repub-

Act Stat. Sec. 1873, 254, 6 Sec. lished in the Revised Statutes page 558, 502 1878, Act of 22 March 16 Stat. No. 1878, 811, 678

Act 24 Dec. 16 Stat. No. 1878, 840, 131 Act of Dec. 16 Stat. No. 24 1896, 222, Act of 9 Stat. No. 93 March 1906, 287, Act of 16 Feb. 25 Stat. No. 1909, 361,

Act of 4 March 26 Stat. No. 1270, No. 748

Act of 20 March 36 Stat. Act March 38 Stat. No. 749 of 13 _ 2214, 1938, 1040 6 40 Stat. No. Resolution May Joint 414 1955, 848, of March 49 Stat. No. Act 25 1955, 850, No. 415 Stat. Act 25 March 49 856, 418 Act 19 Stat. No. May 17 March Stat. No. 965 Act SUBER, STATE v. SOUTH CAROLINA Appellant, Walter J. Health Aycock, HEALTH and E. Kenneth BOARD OF Officer, Respondents. (2d) 520) E.

(193 S.

Case Details

Case Name: State v. Hardee

Court Name: Supreme Court of South Carolina

Date Published: Nov 14, 1972

Citation: 193 S.E.2d 497

Docket Number: 19516

Court Abbreviation: S.C.