These two actions involve substantially the same issues, and were tried together by agreement.
For convenience, the action first entitled above will be considered; the conclusions as to its being applicable to the second action as well.
The plaintiff claims to be the owner of a number of tracts of tidal land near Charleston aggregating 34,290 acres, marsh land, valuable only for the propagation and gathering of oysters and other shellfish, upon which between low-watermark and high-water mark, it alleges that the defendants have trespassed by gathering and carrying off oysters, putting up signs, and planting oyster shells, to its damage $10,000.00. In addition to its demand for the recovery of damages, the plaintiff asks for an injunction restraining the defendants from further acts of trespass.
The defendants deny in their answer the material allegations of the complaint, and allege that the Georgia-Carolina Canning Company is justified in its entry and operations, between low-water mark and high-water mark upon the lands in question, by a valid lease from the Board of Fisheries of the State covering all lands on which they have been operating.
By agreement the case was referred to the Master of Charleston County only to take the testimony and report it to the Court. This was done, and the case was then heard upon that report by his Honor, Judge Grimball, who, on May 29, 1926, filed an order adjudicating "that the plaintiff had failed to prove title to the land between high- and low-water mark in the said navigable streams and judgment is therefore rendered in favor of the defendant in both cases."
From a judgment entered upon this order in favor of the defendants, the plaintiff has appealed, upon exceptions which present the questions hereinafter considered.
As is stated in the transcript of record, the main issue in the controversy is whether the paper title of the plaintiff *Page 440 covers any land upon the several tracts claimed to be owned by it, above low-water mark, upon which the alleged depredations of the defendants have been committed.
It appears to be conceded that all of the bays, inlets, creeks, and other waters by which the several tracts are bounded are tidal and navigable waters.
The plaintiff claims to trace its title to the several tracts in this way:
(1) A grant from the State to John Bowman, dated August 1, 1791, pursuant to the act establishing the mode ofgranting vacant lands, of February 19, 1791, purporting to convey "a plantation or tract of land containing fifteenislands * * * containing 16,992 Acres," bounded by Atlantic Ocean, Bull's Bay, and creeks and marshes, "together with all woods, trees, water courses, profits, commodities, appurtenances and hereditaments."
(2) A grant from the State to C.B. Northrop, dated July 2, 1855, in the formal parts identical with the Bowman grant, purporting to convey "a plantation or tract of land containing 1,040 Acres of marsh," bounded by certain creeks and lands of other proprietors.
(3) A grant from the State to John Lee and others, dated August 3, 1840, in its formal parts identical with the Bowman grant, purporting to convey "A plantation or tract of land containing 970 Acres" bounded by the Atlantic Ocean and other waters, described as a "Sand island and Bank."
(4) A grant from the State to John Lee and others, dated August 3, 1840, in its formal parts identical with the Bowman grant, purporting to convey "A plantation or tract of land containing 360 Acres," bounded by a bay and creeks, and described as "a tract of shell bank and marsh land," a part of Cassena Island.
(5) A grant from the State to Thomas Lynch, dated July 5, 1788, purporting to convey 5,560 acres, bounded by Atlantic Ocean, Bull's Bay, and certain creeks and inlets, described *Page 441 as "An island known by the name of Big and Little Raccoon Keys."
(6) A grant from the State to Richard T. Morrison, dated September 1, 1860, in its formal parts identical with the Bowman grant, purporting to convey "A plantation or tract of land containing a body of marsh land in all 3,684 Acres" in St. James Santee parish, bounded by Bull's Bay. On the plat of this tract is a statement by the surveyor that low-watermark was adopted as the line.
(7) A grant from the State to Richard T. Morrison, dated September 1, 1860, in its formal parts identical with the Bowman grant, purporting to convey "A plantation or tract of land containing 3,684 Acres of marsh land," in Christ Church parish, bounded by Bull's Bay, and certain creeks.
The tracts described above as Nos. 1, 2, 3, 4, and 5, were conveyed February 19, 1891, under tax title deeds, by the Sheriff of Charleston County to H.P. Jackson, and were by him conveyed to the plaintiff in September, 1891.
The tracts 6 and 7 were conveyed by Richard T. Morrison to J.B. and H.T. Morrison, and by them to the plaintiff June 14, 1899.
The evidence very conclusively shows that practically every foot of the 34,290 acres (with the exception of 6.2 acres on Cassena Island), was entirely submerged at high tide.
The witness Chamberlain testified: "* * * The land was marsh land, that the high tide covered it."
Leland: "* * * Practically all of the marsh is covered at high water."
Everett: A surveyor had surveyed Island 14 of the Bowman grant, which was granted for 715 acres; found only 223acres at low water; "that it was completely covered at high water"; that he had surveyed Cassena Island, 350 acres of which had been granted to John Lee and others, and that at high tide the entire island with the exception of 6.2 acres *Page 442 was covered; that the 15 islands of the Bowman grant were entirely covered at high tide; that he would designate "the whole thing as marsh land with a few exceptions in Cassena Island (6.2 acres), and a little bit in Raccoon Keys and Cape Island."
Lofton: "With the average tide the marsh islands were pretty well covered."
R.L. Morrison: "At high tide with an ordinary tide there is very little marsh land out, it is out in spots."
Singleton: "* * * These lands are practically all covered at high water."
Webb: That these marsh lands are valuable for nothing except for oysters, clams, and crabs — fisheries.
An affirmance of the Circuit decree therefore means that land which the evidence shows was valuable only for oysters, clams and crabs, and presumably was purchased for that purpose, containing 34,290 acres, is "shrunk to this little measure," 6.2 acres, by denying to the plaintiff any right between low-water mark and high-water mark.
The State in executing the grant is presumed to have known the fact that the area was marsh land, that marsh land means land that will be covered by the tide, and that as a physical fact the grant will cover nothing if the line of the grantee's proprietorship is limited to the high-water mark. The State is presumed to have intended to grant something; to appreciate the principle, "Ut res magis valeat quam pereat"; and, if necessary to comply with this principle the grant will be held to have conveyed that which only was available, the land to low-water mark.
There can be no question as to the correctness of the principle that, under ordinary circumstances, a grant by the State to land bounded by tidal navigable waters passes no title below high-water mark. 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.Mining Co., 42 S.C. 138, 19 S.E., 963, 20 S.E., 64, *Page 443 28 L.R.A., 42, 46 Am. St. Rep., 702; Morris v. U.S., 174 U.S. 196,19 S.Ct., 649, 43 L.Ed., 946; Shively v. Bowlby.152 U.S. 1, 14 S.Ct., 548, 38 L.Ed., 331. I do not believe, however, that this principle can justly be applied where the State is presumed to know that, if this rule be applied, its solemn grant, with the great seal of the State affixed, is but a "scrap of paper."
If there was nothing in these islands and marsh lands which the State, by reason of the fact that they were entirely submerged at high tide, could convey except the land bounded by low-water mark, common fairness would require that the grants should be so construed.
In Shively v. Bowlby, 152 U.S. 1, 14 S.Ct., 548,38 L.Ed., 331, the Court said: "It is equally well settled that a grant from the sovereign of land bounded by the sea, or by any navigable tide water, does not pass any title below highwater mark, unless either the language of the grant, or long usage under it, clearly indicates that such was the intention."
How could the language of the grant in connection with the environment more clearly indicate the intention of the State to extend the limits of the granted land to low-watermark? Take the Bowman grant, for instance: 15 islands in a network of bays, inlets and creeks, bordering on the ocean, not an inch above sea level, every acre of which was submerged at high tide; the grant conveying the entire area "with all woods, trees, waters, water-courses, profits, commodities, appurtenances and hereditaments" — high "sounding brass and tinkling cymbals" to convey absolutely nothing if the limits of the granted land be high-water mark. As a matter of fact, there was no high-water mark to the premises; it had passed over the entire area, and was registered somewhere on other lands further to the north. Or the Northrop grant, which conveyed 1,040 acres "of marsh." Or the Morrison grant, which conveyed 3,684 acres "ofmarsh land in Christ Church parish. Or the Morrison grant, which conveyed "a body of marsh land in all 3,684 Acres" *Page 444 in St. James Santee parish, and specifically stated on the plat that the lines were fixed at low-water mark.
The cases cited, establishing the general rule as stated, all involved tracts of land upon which there was land of both descriptions, above and below the high-water mark; in the absence of a specific extension to low-water mark, it was but logical to declare the rule establishing the high-water mark as the limit of proprietorship. When, as in the case at bar, there is no high-water mark, and of course no land above it, the logic fails; the grant can have no effect at all unless the limit of proprietorship is extended to low-water mark.
There is a marked distinction between grants of land between high- and low-water mark, which is considered the "shore," and grants of land that is always submerged, land below low-water mark. The first class is considered vacant land, and may be granted by the public land authorities as such; the second class is considered a part of the sovereign possession of the State, in trust perpetual for the benefit of the public, and may not be granted except by an act of the General Assembly.
It is settled by the decision of this Court in the case ofState v. Pacific Guano Co., 22 S.C. 50, which refers with approval to a Circuit decree of Judge Maher in the case ofState v. South Carolina Phosphate Co. alias Oak PointMines, reproduced in the appendix, 22 S.C. 593, that the area between high- and low-water mark is classed as vacant land, and may be granted by the land authorities of the State without the necessity of an act. The distinction between such land and that below low-water mark, always submerged, is clearly drawn.
In the Pacific Guano Co. case, the Court said: "* * * The beds of such channels below low-water mark are not held by the State simply as vacant lands, subject to grant to settlers in the usual way through the land office. * * * Not being * * * subject to grant in the usual form under * * * the statute regulating vacant lands, it would seem to follow that *Page 445 in order to give effect to an alienation which the State might undertake to make it would be necessary to have a special Act of the Legislature expressing in terms and formally such intention." That states the law clearly as to land below low-water mark, always submerged.
In the decree of Judge Maher, the land between high- and low-water marks is referred to, and the law applicable thereto is declared. It is said: "It appears therefore that there is nothing in the legal signification of the term, `vacant land,' to restrict its application, so as to exclude land covered by water, which has not been appropriated to individual or public use, by authority of law. That land flowed by thetide [that is, land between high and low water marks], is the subject of grant in this State is conclusively shown by statutes in which `all lands granted in this State' were classified and rated for purposes of taxation. * * * There is no trace of any special legislation providing for the location and grant of lands of this character, and the necessary inference is that they were disposed of under the general regulations prescribed by the statutes relating to vacant lands."
It seems to me clear therefore that all of this land limited by low-water mark was subject to grants by the State as vacant lands and was conveyed by the proper State authorities, that the State intended to convey all that it possessed, which was the entire islands, with the exception of the land below low-water mark, and that the plaintiff has established its title thereto.
I think, therefore, that the decree of the Circuit Court should be reversed, and the case remanded to that Court for a new trial. Nothing herein contained is intended as an adjudication of any issue of fact; all such issues are intended to be left open for such a new trial. *Page 446