Cape Romain Land & Imp. Co. v. Ga.-Car. Canning Co.

*432 The opinion of the Court was delivered by Mr. Justice Carter. On the 25th of January, 1925, the Cape Romain Land & Improvement Company, as plaintiff, instituted two actions in the Court of Common Pleas for Charleston County, one against the defendants, Georgia-Carolina Canning Company and IT. G. Leiding, and the other against the defendant, Shellmore Oyster Products Company, the purpose of which actions was to restrain the defendants from trespassing upon the lands described in the complaints, consisting of more than 34,000 acres, alleged to be owned by the plaintiff, by gathering and carrying off oysters from said lands, putting up signs and planting oj^ster shells thereon, and also for damages in the sum of $10,000.00 for the alleged acts of trespass. The defendants in their answer denied the material allegations of the complaint, and further alleged that they held a valid lease from the Board of Fisheries of the State, acting under an Act of the General Assembly, covering all lands on which they were operating, and it may be stated in this connection that it appears from the record that the defendants were only operating between high- and low-water mark in the navigable streams on the lands in question. It is agreed by the parties, as shown by the statement contained in the transcript, that the'pleadings and evidence raised the following issues: (1) plaintiff’s title; (2) plaintiff’s title between high- and low-water mark in the navigable streams named; (3) had the defendant or defendants in either case trespassed; (4) the extent of the damage and relief the.plaintiff was entitled to. By agreement, the cases, which were similar, were tried together, and referred to the Master of Charleston County only to take the testimony and report the same. The matter was heard by his Honor, Judge William H. Grimball, upon the testimony reported, and, after full consideration, Judge Grimball having reached the conclusion that the plaintiff had failed to prove title *433 to the land between high- and low-water mark in the navigable streams in question, gave judgment for the defendants and did not pass upon the other issues raised by the pleadings and the evidence. From the order of judgment for the defendants, the plaintiff has appealed to this Court, imputing error to his Honor, Judge Grimball, in the particulars alleged in plaintiff’s exceptions, which -will be incorporated in the report of the cases. 'Since in the order of his Honor, Judge Grimball, only one of the issues raised was decided—the issue of “plaintiff’s title between high- and low-water mark in the navigable streams”—should the appeal be sustained, it would be necessary to remand the case to the Circuit Judge for the purpose of passing upon the other issues raised under the pleadings and evidence, but, under the view we take of the case, the order of Judge Grimball should be upheld and the appeal therefore dismissed. An examination of the transcript of the case shows the following agreed statement: “* * * The real question in each case was does the plaintiff have title to low water mark in the navigable streams named? The crux of the whole case is, has the plaintiff title to low-water mark in navigable streams, the testimony showing that all streams named were navigable, and there being no proof that any oysters were gathered or other trespass committed between high- and low-water mark on the shores of Bull’s Bay, or in Bull’s Bay?” With a view of answering this question, we have made a careful examination of the record and fail to find proof of title in the plaintiff between high- and low-water mark in the navigable streams on the land in question. Assuming that the plaintiff proved title to the lands described in the deeds introduced in evidence by the plaintiff, it does not follow that title was proved to “low-water mark in navigable streams” in question. Appellant contends that, under the language of the several grants of the state introduced in evidence, with which it alleges it has connected itself, it *434 owns the land to low-water mark in all tidal navigable streams, even though the wording contained in the deeds does not specifically so state. In determining the extent of the boundaries of a body of land, the same rule does not apply to tidal navigable streams, such as those in question, that applies to the ordinary or non-navigable stream. When a body of land is bounded by a non-navigable 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 high-water mark, in the absence of more specific language showing that it was intended to go below high-water mark, and the portion of land between high- and low-water mark remains in the State in trust for the benefit of the public interest. The plaintiff’s • deeds give as boundaries of the lands referred to in the complaint the Atlantic Ocean, certain bays, islands, marshes, streams, etc., and do not give low-water mark as the boundary in any instance. In this connection, appellant contends that the plats of the lands described in the several deeds, and which accompanied the deeds, should have been considered by his Honor, Judge Grimball, in passing upon this issue. The transcript of the case contains this agreed statement on that point: “The testimony shows that no grant or any plat referred to in any part of the case contains the words ‘low water mark,’ except in one plat covering one of the Morrison grants, the surveyor (states?) that on Bull’s Bay, an arm of the sea not a navigable stream, the line is at ‘low water mark,’ and on the same plat containing navigable streams, no such language is used, and there is no testimony that any oysters were gathered or cultivated, or any stakes driven in Bull’s Bay.” It is, therefore, clearly seen that the plats to which the appellant refers do not offer any additional proof on the issues under consideration. In support of the views herein expressed, reference may be had to the following authorities: Shively v. Bowlby, 152 *435 U. S., 1, 14 S. Ct., 548, 38 L. Ed., 331; State v. Pacific Guano Co., 22 S. C., 50; State v. Pinckney, 22 S. C., 484; Hardin v. Jordan, 140 U. S., 371, 11 S. Ct., 838, 35 L. Ed., 428; Heyward v. Farmers Mining Co., 42 S. C., 138, 19 S. E., 963, 20 S. E., 64, 28 L. R. A., 42, 46 Am. St. Rep., 702; Morris v. United States, 174 U. S., 196, 19 S. Ct., 649, 43 L. E., 946. In the case of Shively v. Bowlby, supra, Mr. Justice Gray, as the organ of the Court, makes this reference to the rule in South Carolina: “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”—citing State v. Pacific Guano Co., 22 S. C., 50; State v. Pinckney, 22 S. C., 484. In the case of Hardin v. Jordan, supra, in discussing the rule, the Court uses this language: “With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to high-water mark, and that the title to the shore and lands under water in front of lands so> granted inures to the State within which they are situated, if a State has been organized and established there. Such title to the shore and lands under water is regarded as incidental to the sovereignty of the State—a portion of the royalties belonging thereto' and held in trust for the public .purposes of navigation and fishery. * * * ” In the case of State v. Pacific Guano Co., supra, Mr. Justice McGowan, in his opinion as the organ of the Court, gives this statement of the rule: “The doctrines of the common law as to the seashore and the soil lying under tidewaters and navigable streams were peculiar. The fundamental idea was that the property in the sea and tidewaters, and in the soil and shore thereof, was in the sovereign. * * * These are all channels in which the tide ebbs and flows, and as to such the well-established rule is that a grant of” such should give “title only to high-water mark.” In the case of- Morris v. *436 United States, supra, the writer of the opinion in that case refers to the reasoning of the opinion in the case of State v. Pinckney, supra, with approval. The appellant contends that, if the grants in question do not go- to low-water mark, they convey nothing, for the reason that at high tide practically all of the land is covered by water. We do not agree with this contention. In the first place, the testimony on which appellant relies as showing or tending to show that a large portion of the land is covered by water at high tide is not conclusive of the question. Neither does the fact that the land described in some of the deeds is referred to as marsh land, to which attention is called, settle the question. Then, too, there are other facts in the case to be considered. While a marsh is land usually wet and soft and commonly covered wholly or partly with water and is often referred lo as a swamp, it is also known as a meadow which remains green during the dry seasons. 38 C. J., 1363. In this connection, it may be mentioned that there are only two small tracts, one containing 1,040 acres and the other containing 3,684 acres, which are described in the deeds as a marsh, while the balance of the 34,000 acres is described as islands, sand islands and bank, except a 360-acre tract which is described as a tract of shell sand bank and marsh,” being a part of Cassena Island. If the use of the word “marsh” is to be considered as significant in connection with about 5,000 acres of said land, then the terms “islands” and “sand banks” should be considered as significant in connection with the remaining 30,000 acres. Also, in considering the question presented, inquiry should be made as to whether or not the land involved is covered by water at high tide on account of the usual tide or under abnormal conditions. By “high-water mark” is meant “the line on the shore which is reached by the limit of the flux of the usual tide”; that is, the high mark made on the shore as “the tide ebbs and flows twice in each lunar day,” and *437 not the point reached at new or full moon nor when there is an intervening disturbance such as a storm or earthquake. The testimony in the record on this point is not satisfactory. Even should it be conceded that a large portion of the land described in the deeds in question is now covered by water at high tide, it does not necessarily follow that such was the case when the deeds were executed many years ago, for it is a recognized fact that such lands undergo.rapid changes. What was an island when the deeds were executed in 1840 and 1855 may now be a marsh or land constantly or continuously covered with water. This would be no reason, however, for reading into the deeds a meaning not intended at the time of the execution. Appellant also calls attention to the fact that on one of the plats there appears a note inserted by the surveyor to the effect that in one of the boundaries the “line is at the edge of low water.” According to our view, no special significance should be attached to this. The notation by the surveyor was made with reference to Bull’s Bay, one of the boundaries of a tract, and it does not appear that Bull’s Bay is a navigable stream, and the notation so made by the surveyor could therefore have no bearing on the question involved in the appeal. But the question before this Court is not whether appellant owns any land contained within the boundaries appearing in the several deeds, through which appellant claims title, but the question is, Has the appellant failed to prove title to the land between high- and low-water mark in the navigable streams? The question, too, is not, Has plaintiff offered any testimony tending to prove title to the land between high and low water mark in the navigable streams? Even assuming there was some testimony tending to prove title to the land between high- and low-water mark in the navigable streams (though the record does not rvarrant such assumption), whether such proof was established was a question for the Circuit Judge who passed on *438 the facts in a law case, to whom the facts were submitted instead of submitting them to a'jury, and this Court cannot interfere with said finding, under the showing made in the record of the case. We must bear in mind, as stated in the agreed statement of facts, that “the crux of the whole case is, Has the plaintiff title to low-water mark in navigable streams ?” It is conceded for the purpose of this appeal that the plaintiff owns all of the lands contained within the boundaries appearing in the deeds executed by the agent of the State, unless such boundaries be construed to include lands between high- and low-water mark in the navigable streams, but, as we view the case, the plaintiff has failed to prove title to the lands between high- and low-water mark in the navigable streams, as held by the Circuit Judge, for the reasons we have stated above in connection with the authorities cited. The title to land below high-water 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. We are therefore of the opinion that appellant’s position is not well taken and that there is no proof of title in plaintiff to the land between high- and low-water mark in the navigable streams within the territory described in the complaints, as disclosed by the record. As to the question of adverse possession upon which appellant relies, a careful examination of the record fails to disclose to us sufficient proof to substantiate the claim, and we think that Judge Grimball was right in reaching the conclusion that he did and issuing an order accordingly. The appellant’s exceptions are therefore overruled, and it is the judgment of this Court that the judgment of the Circuit Court be and is hereby affirmed. Mr. Chiee Justice Watts and Messrs. Justices BeEasE and StabeEr concur.