State Ex Rel. McLeod v. Sloan Construction Co.

ON PETITION FOR REHEARING

Bell, Judge:

The State petitions for rehearing on the ground, inter alia, that the Court overlooked or misapprehended the facts in State v. Yelsen Land Co., 265 S. C. 78, 216 S. E. (2d) 876 (1975). The State argues that numerous South Carolina cases,1 including Yelsen, have adopted a “perfect chain of title” rule under which a private owner can assert title against the State only if he proves an unbroken chain of conveyances from a sovereign grant to his own deed. The State claims this rule is derived from the principle that “one not in possession must ... show a perfect chain of title.” We have carefully considered the State’s argument and find no merit in it.

State v. Yelsen Land Co., supra, is readily distinguishable from this case, because the original deed in the private claimant’s chain of title did not convey the tidelands in dispute. In Yelsen, the Court correctly held:

The boundaries given ... did not convey title to low water mark, and the foregoing deed, therefore, did not convey title to tidelands.

265 S. C. at 82, 216 S. E. (2d) at 879. In this case, the original grant and all succeeding conveyances did convey title to the thread of the stream. The State’s argument simply ignores the different common law rules for construing riparian *499grants along tidal and nontidal waters. Cf. Cape Romain Land & Improvement Co. v. Georgia-Carolina Canning Co., 148 S. C. 428, 146 S. E. 434 (1928).

The failure of the private claimant in Yelsen to connect its title to an original sovereign grant was significant for a reason other than that argued by the State. The claimant failed to show the tidelands in issue had ever been granted by a conveyance in its chain of title. It, therefore, attempted to support its claim of ownership by reference to a sovereign grant which it conceded was not in its chain of title. It is not clear from the record in Yelsen that the earlier sovereign grant upon which the private claimant relied (i.e., the grant from the State to John M. Maillard dated August 3, 1818) covered the same property as the deed in the claimant’s chain of title (i.e., the deed to G. W. McCormick dated February 6, 1984). Assuming, however, that the same property was covered by both conveyances and also assuming the sovereign grant conveyed lands below the high water mark (a question not decided by the Court), the claimant was still faced with the difficulty that the original deed in its chain of title did not convey the tidelands. Thus, it was irrelevant what might have been conveyed to another grantee by an earlier sovereign grant. This fact, not the State’s “perfect chain of title” argument, explains the Court’s conclusion that the private claimant’s failure to connect up to the sovereign grant defeated its claim.

The State’s additional argument that one not in possession must show a perfect chain of title, overlooks the fact that Sloan is the party in possession in this case. It is well settled that where one enters land under a claim of title, possession of any part within the boundaries set out in the title is possession of the whole tract covered by the title. See Littleton v. Roberts, 181 S. C. 303, 187 S. E. 349 (1936); Anderson v. Darby, 10 S. C. L. (1 Nott & McC.) 369 (1818); Brandon v. Grimke, 10 S. C. L. (1 Nott & McC.) 356 (1818); Eifert v. Read, 10 S. C. L. (1 Nott & McC.) 374 (1816). Since Sloan’s deed conveyed to the middle of the river, Sloan’s entry on the land placed it in possession of the riverbed as a matter of law. Moreover, Sloan has physically occupied the riverbed by mining sand from it. The rule that the State comes into court with a presumption of title, which *500is the correct rule when lands have never been granted by the sovereign, does not apply when lands have once been granted, as they were in this case. See State v. Hardee, 259 S. C. 535, 545, 193 S. E. (2d) 497, 502 (1972) (Bussey, J., concurring). We are, therefore, at a loss to understand the State’s assumption that Sloan is the party out of possession.

We have considered the additional grounds for rehearing in the State’s petition and find them also to be without merit. Accordingly, the petition for rehearing is denied.

Petition for rehearing denied.

Sanders, C. J., and Shaw, J., concur.

The State invites our attention to the cases collected under 14 S. C. Digest, Navigable Waters, Key No. 37(4). Without exception, those cases deal with construction of grants of land abutting on tidal waters. They stand generally for the rule that a grant of lands bounded by tidal waters conveys only to the high water mark, unless there is specific language granting below high water mark. See, e.g., State v. Fain, 273 S. C. 748, 259 S. E. (2d) 606 (1979). At common law, this same rule of construction did not apply where the lands granted were bounded by nontidal waters. See McCullough v. Wall, 38 S. C. L. (4 Rich.) 68-(1850).