Legal aspects of ownership and use of estuarine areas in Georgia and South Carolina

[From the U.S. Government Printing Office, www.gpo.gov]

Coastal Zone
Information GA
Center 101.

LEGAL ASPECTS OF OWNERSHIP
AND USE OF ESTUARINE AREAS
IN GEORGIA AND SOUTH CAROLINA

by Carroll Leavell

Institute of Government
The University of Georgia

KFG
123
V2
L4
1971

LEGAL ASPECTS OF OWNERSHIP AND USE
OF ESTUARINE AREAS IN
GEORGIA. AND SOUTH CAROLINA

Carroll Leavell

The work upon which this publication is based was supported in part
by funds provided. by the United States Department of the Interior,
Office of Water Resources Research, as authorized under the Water
Resources Research Act of 1964.

Institute of Government
The University of Georgia

1971

TABLE OF CONTENTS

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . v

Introduction . . . . . . . . . . . . 0 . . . . . . . . . . . 1

Historical Background . . . . . . . . . . . . . . . . . . . . 5

The Georgia Law . . . . . . . . . . . . . . . . . . . . . . 11

A. Early History of Estuarine Law . . . . . . . . . . . 11

B. Current Legal Doctrines
Concerning Estuarine Ownership and Use . . . . . . 14

1. Foreshore Land and Lands
under Estuarine Waterways . . . . . . . . .. - 14

2. Estuarine Waters (of the Foreshore and.
of Navigable and Non-navigable Waterways) . . . 17

3. Submerged Lands of the Marginal Seas . . . . . . 19

4. Tidal Waters of Marginal Seas . . . . . . . . . . 23

C. Legal Doctrines Concerning Ownership and
Use in Special Areas . . . . . . . . I. . . . . . . 25

1. Accretion, Reliction, Erosion, Avulsion . . . . . 25

a. Non-navigable Tidewaters . . . . . . . . . . 26

b. Navigable Tidewaters .. . . . . . . . . . . . 27

c. Wharfing Out . . . . . . . . . . . . . . . . 27

Z. Adverse Possession, Prescription, Dedication 28

3. Ownership and Use of Certain Natural
Resources . . . . . . . . . . . . . . . . . . 31

iii

D. Other Statutory Controls . . . . . . . . . . . . . . 36

1. Background . . . ... . . . . . . . . . . . . . 36

2. Statutory Regulation in Georgia .38

The South Carolina Law . . . . 0 . . . . . . . . . . . . . . 4Z

A. Early History of Estuarine Law . . . . . . . . . . . 42

B. Current Legal Doctrines Concerning
Estuarine Ownership and Use . . . . . . . . . . . 51

1. Foreshore Land and Lands
under Estuarine Waterways . . . . . . 51

Z. Estuarine Waters- (of,the Foreshore and
of Navigable and Non-navigable Waterways) . . . 61

3. Submerged Lands and Waters of the
'Marginal Sea . . . . . . . . I . . . . . . . . . 64

C. Legal Doctrines Concerning Ownership and
Use in Special Areas . . . . . . . . . . . . . . . 67

1. Accretion, Reliction, Erosion, Avulsion . . . . . 67

a. General Rule . . . . . . . . . . . ... . . . 67

b. Wharfing Out . . . . . . . . . . . . . . . . 68

2. Adverse Possession, Prescription, Dedication 69

3. Ownership and Use of Certain Natural
Resources . . . . . . . . . . . . . . . . . . 74

D. Statuiory Regulation in South Carolina . . . . . . . . 77

FOREWORD

This report is part of a study of estuarine law in the Southeast.

The project originated as a result of increased awareness of the need

for conservation of the estuarine area, particularly in the Southeastern

states.

The research for the project is made possible by a matching

grant from the United States Office of Water Resources Research and

is an extension of previous work done at the Institute of Government in

the area of water law.

Although this paper does not purport to answer all legal questions

concerning estuarine use, it is hoped that the basic research it provides

will be useful in answering many of them and, more importantly, will

provide a useful, general background for drafting local, state and multi-

state legislative solutions to the many problems presented by the use

and preservation of the estuarine area.

Morris W. H. Collins, Jr.
Director

Recognition

I wish to'express gratitude for the valuable assistance of

R. Russell Berry, Esq. , who worked as my research assistant

during the course of the preparation of this report.

INTRODUCTION

The estuarine area in Georgia and South Carolina comprises over

one million acres. It is regarded as one of the most fragile and critical

components of the coastal zone --fragile because harm to the area may

2
be irreversible, and critical because of the implication of the multiple

and often conflicting uses to which the area has already bee n and is being

subjected. The estuarine area in a largely unaltered state is vitally

important to man and animal because of its extraordinary production of

both oxygen and food. Its role in the replenishment of oxygen for the

3
atmosphere has been characterized as perhaps its most important use. -

The importance of the estuary to fish and shellfish is well documented- -

an estimated two-thirds of all ocean animals either spend a part of their

lives in the estuary of which this segment is a substantial part, or,feed
upon a species that has lived there.4 Other important uses are also

served by the estuarine ecosystem. It is estimated that over twenty

million people go boating for recreational purposes in these coastal
waters. 5 Aesthetic considerations add value to property bordering this

coastal area.

All of the vital roles played by estuarine areas are threatened by
physical alteration- -such as dredging, filling, diking, damming. 6 These

activities are occurring at an ever increasing rate.. A loss of seven

percent of the nation's important estuarine area in the last twenty years
has resulted from filling by housing developers. 7 Atlantic coast navi-

.gation projects--such as the Intracoastal Waterway--have been more

destructive of the marine habitat than any other type, of water development
project.8 Recent calculations indicate that 11[a]t current rates of

destruction, about one acre of marshland and over an acre of shoal
water is destroyed every hour. 9 Such a course of events can only be

explained in terms of an absence of appreciation of the extent of our

dependence upon the estuarine system.

Recently, public attention has begun to focus on this area, and to

show increasing concern for the ecological, recreational, aesthetic and

economic values which are at stake. The need to develop a comprehen-

sive program with a desirable balance between public and private roles,

and consistent with preservation of the quality of the estuarine ecosystem,

is being increasingly recognized. For such planning to be effective it

must take account of and be realistically related to the existing legal

framework of ownership and control of the estuarine area. Planning for

such a goal is hampered by the absence of an adequate exposition of this

legal framework. The purpose of this study is to fill this need by identi-

fying and providing an understanding of these legal doctrines as they have

developed in Georgia and in South Carolina.

The estuarine complex to be studied contains both land and water

areas. The term "estuary'! has many definitions, depending upon the

frame of reference or scientific base for classification. 10 From a

physical viewpoint, the estuary has been usefully defined as a semi-

enclosed coastal body Of water having a free connection with the open sea,

within which there is measurable dilution of sea water by fresh water
from1and drainage. 11 In addition, tidal action strongly affects the
estuary. 12 Thus, in physical terms, the upper or inland limits of the

area of the estuary may be defined in terms of tide elevationfrom sea

13
level and the lower limits delineated by geomorphological or geological
14
features. Extending landward this would include coastal marshes and

tidal creeks, and in a seaward direction would extend beyond the ordinary

low-water mark.

Utilizing this definition as a framework, the various legal doctrines

under which both public and private interests in this area have been and

are being acquired can be identified, explained and related to it. As.

mi.ght be expected where there has been little comprehension of the great

importance of the area, private utilization of its principal components--

the waters, the foreshore areas (that is, those properties lying between

high and low-water mark), and the underlying beds--and the conflicts

which resulted, have shaped much of the law related to it. State law,

and particularly the common law, as it was received and has evolved in

the respective states, has been the main source of these legal rules and

this report is, for the most part, a study of the development of state

doctrines.

The outline to be followed in studying the law of each state focuses

upon Ilownership" of land in each of the following categories: the

foreshore of estuarine areas; beds of tidal waterways and beds of the

marginal sea less than three geographical miles from a state "coast
line"; and upon rights in waters 15 in the related estuarine categories:

foreshore waters, waters of navigable and non-navigable streams, and

marginal seawaters within the three geographical mile limit. The outline

then considers in a separate part special legal doctrine's of, particular

significance to estuaries such as "accretion, 11 "erosion, "."adverse

possession" and "dedication.

Finally, and dealt with more briefly, is control by state regulation.

Whereas the states until quite recently took a passive role in the use and

development of these areas, there is now an increasingly evident legis-

lative interest in public control of the area.

HISTORICAL BACKGROUND

Any examination of ownership rights in these states must begin with

a discussion of the English common law because that legal system came

with the English to the colonies of South Carolina and Georgia, and,

following the Revolution, was formally adopted and made a part of the law

of both states.

The English common law concerning the three areas in which we are

particulary interested- -tidal waters, beds, and foreshore areas--derive,d

from two essentially contradictory sources--the Roman law doctrine of

res commune, which presupposed that certain natural resources such as

air, water, the sea and foreshore are owned in, common by all, and the

early common law property concept which recognized private ownership

in certain areas, but with the individual's ownership rights limited by

recognizing a right of use by others for certain public purposes such as

16
navigation and fishing. The tendency on the part of judges to draw on

these differing legal traditions, and the general confusion which this

brought into the area of the law may be explained at least partially by

the nature of what is sought to be controlled- -involving, on one hand,

a constantly moving and changing body of water which has great impor-

tance to the community and the public, and, on the other hand, an

underlying bed of land which is usually stable, and in that sense similar

to dry land, yet. accessible only for special uses.

Although the British Isles as part. of the domain of the Roman

Empire had been subject to Roman law with its doctrine of res commune,

the decentralization of control following the Roman decline found effective

control only*in local lords who applied their own local laws. Following

the Norman Conquest there began the development of a regular, unified

system of English law. The treatise writers of this early period who

had a major impact on the development of English law, such as Bracton,

who wrote during the mid-thirteenth century, and later Fleata and Britton,

relied upon the Roman law notion of res commune in discussing rights in

17
waters, the sea and foreshore areas. Without apparent regard for

the latter concepts, there was developing at the same time an English

system of landholding under what has come to be known as "feudalism,

a system of property ownership in which, at least theoretically, all land

was held directly or indirectly by grant from the King. And as pointed

out by the commentators, "it appears that at the time when the land

titles in England became vested in private owners, there was no

acquaintance with any reason why the titles should not include land under
the water as well as dry land. 11 18

As the law developed during the one hundred year period from 1568

to 1668, a theory came to be accepted that the King owned all lands

washed by the tide. This theory had evolved from two sources--the King

had dominion over the sea and therefore over all of its reaches, and the
King was owner of the waste lands of this kingdom, 19 to which was added

the assumption, perhaps erroneous, that these areas were.ungranted.
This theory was current at the tirne of Queen Elizabeth 20 and when it

was later included in Lord Hale's treatise, De Jure Maris, in 1667 it
was accepted as an authoritative statement of law. 21 An important impli-

cation of the theory was the "presumption" that grant of land adjoining

tidal waters did not operate to include adjoining lands covered by the

22
tide unless there were specific words to that effect. The importance

of this presumption may be appreciated when one takes into account the

number and extent of the grants previously made by the King and affected

by the "presumption. 11 While such express alienation was necessary to

convey title to land washed by the tides, by way of contrast, a Crown

grant of land adjoining non-tidal waters was presumed to operate as

conveyance of the adjacent non-tidal beds.

As public interest in waters and underlying beds began to increase,

there developed another concept concerning the nature of ownership of

certain properties by the King. These he was said to own in a dual

capacity--in his proprietary capacity as jus privatum, and in his repre-

sentative capacity as jus publicum. Though the King's dominion was said

to extend over the sea, its inland reaches, the bed and foreshore of

tidal areas, it was postulated that the King owned these lands in his

1 23
capacity as jus publicum, holding them in trust for the people.

Grants of jus publicum land, it was posited, could only have been made
subject to those public rights in them. 24 Later it was said that grants

of these Crown lands in which this public interest existed could only be

made subject to Parliamentary regulations, the first of which was passed
in 170Z. 25 Thus, despite acknowledgement of a proprietary "ownership
in the Crown or in a state or the people as successor to the Crown, 26

there were at the same time public rights in these areas (the "seas . .

all creeks, arms of the sea, havens, ports and tide-rivers, as far as the
reach of the tide") 27 which could not be abrogated. 28

Under the common law at the time of the colonial settlement and

the Revolution, the Crown's jus publicum right to waters and land under

them was co-extensive with tidal waters. The limits of this royal
property right were determined by the extent of the tide. 29 Watercourses,

on the other hand, were conceived of as real property and either pertained

to the land or to the sea, and if pertaining to the sea, they were owned by

the Crown as a consequence of the recognition of its dominion over "the

30
sea and all its reaches. 11. The jus publicum or trust ownership of tidal
areas was not affected by navigability. 31 The latter did, however,

determine the right of "easement of passage" by the public, a right which
extended not only to tidal waters but also to non-tidal navigable streams. 32

The right of fishery at this time was considered a public right pertaining
only to waters having tidal character. 33

These rights of the public were at times perceived of as in the

nature of easements ("a right of passage is an easement") which limited

34
private ownership. While the colicept of such an easement in privately

owned property is theoretically incompatible with a doctrine of common

ownership as it existed in Roman la--,@,, in practice each doctr5l-ie could be

and has been used by common law 'udges to, support' the public interest in

35
this area. It is these diverse components 'w`-.ch comprise the public

ownership claim which has come to be known as the "public trust"

doctrine.

Together with these public rights with respect to estuarine areas,

which were recognized at the time of colonization, private rights in the

same areas were enjoyed by certain individuals, but limited in

scope. Though there were few cases dealing with water law decided

during the eighteenth century, these decisions, and Blackstone's

Commentaries, published during the years 1765 through 1769, furnish

some authority for recognizing these rights. Owners of land adjoining

bodies of water, tidal or non-tidal, had certain rights not ack .- (Led the

36
general public by reason of their adjacency. In general, the -@;-Pland
or 11riparian" owner, 37 subject to lixy-dtation under certain circumstances,
38
had a "natural" right to an uninterrupted flow of wate, provided his
use was such as not to damage another; 39 could obtai.n by prescription
40
a larger right of use than his natural rights; enjoyed a right to
accretions; 41 and had a right of access which might include the right to

erect wharves. 42 In addition to these riparian rights in estuarine

areas, private rights in estuarine lands which did not conflict with

public trus-t easements, could be obtained by specific grant as already

discussed.

The English colonists carried with them the common law of England

as far as its application was practical in new surroundings and thus

brought to the geographical areas under consideration these theories of

43
public trust and concepts of private rights in lands and waters.

THE GEORGIA LAW

A. Early History of Estuarine Law

The two periods of the colonial history of Georgia- -the colony as

a trusteeship from 1732-1752, and a royal colony from 1752-1776--

furnish little evidence of doctrinal development in the area of estuarine

law. The King could not grant either to the Trustees, by virtue of their

royal charter, or to the Lords Commissioners, who subsequently managed

the royal colonies for the King, any greater powers than he himself held.

44
The Charter of the Trustees, and the later grant of authority to the
Lords Commissioners, 45 directed them to make laws not repugnant to
46
English law, but there is no evidence of important legislative or other

developments with respect to areas under study which would alter the
legal concepts which have been described. 47

After the American Revolution, the rights of the King and of

Parliament vested in the states, subject to rights which were later
48
surrendered to the federal government. In Georgia the General

Assembly, in 1778, adopted as its law all provincial law in effect when

Georgia became independent, and all the laws of England, "as well

statutory as common, 11 not repugnant to the rules and regulations of the

49
Continental Congress or to those of the Assembly itself. In addition,

the Georgia General Assembly by Act, in 1784, accepted as part of its

law, except where contrary to the Georgia Constitution, all pre-existing

provincial law which was in force in May, 1776, including all English

common law and statutes such as were generally in force in the

50
province. The Supreme Court of Georgia in an early decision declared

that the common law principles are "obligatory . . . unless contrary to

the Constitution, laws, or form of government established in this

51
State. 11 Furthermore, the Georgia Supreme Court, in the case of

Johnson v. State, decided in 1902, specifically recognized and reaffirmed
the common law concept of "public ownership" of the foreshore areas. 52

The land boundary of this "trust" property was generally considered to

53
be high tide.

Consideration of what restrictions existed in dealing with these

publicly held interests was before the Georgia Supreme Court in another

54
early case, Mayor & Aldermen v. State, decided in 1848. This 'case

involved an application for mandamus to compel the appointment of

Commissioners, pursuant to the terms of an Act of the legislature, who

would fix the waterline of wharves in part of the Savannah River. Judge

Lumpkin, in discussing the power of the State to enact legislation regu-

lating navigation where such regulation might obstruct navigation in part

of tidal navigable waters, rejected the contention that the public easement

for navi gation concept required that such public right of use be absolute

and not subject to limitation. Navigation might in some cases be

Itentirely prevented, 11 as in the case of a bridge where "the passage of

vessels of a description, which before had been accustomed to passit

would not be possible even though much care had been taken in building
a suitable bridge. 55 Despite having acknowledged the sovereign power to

regulate and thus limit the public right, the court examined the Act to

determine its effect. Consideration of the full text of the Act revealed
that it was drawn with great care to protect the navigation of the river. 56

The court concluded that the legislation was a valid exercise of legis-

lative power which could not be frustrated because the individual officers

of the City who sought to challenge it might disagree with the method

57
adopted for improving navigation.

This early case involving estuarine waters declared that the public

right of navigation, a traditionally recognized public trust interest, could

be regulated by the State, and even partially extinguished, where the needs

of navigation required it. But where thi spublic right would be interferred

'with by governmental action, the court by its conduct made it clear that

it would examine the proposed regulation to determine whether the Act

is drawn to protect the use which it purports to aid.

To summarize, during the early period of the history of the State,

it, and the colonial government which preceded it, were chiefly interested

in opening land for settlement and disposing of it through land grants,
bounty rights, and land.lotteries. 58 With the exception of the Georgia

Supreme Court's declaration in Johnson v. State that sovereign ownership
of the foreshore was part of the common law of Georgia, 59 the concept

of public ownership of tidal areas received little judicial elaboration.

On the other hand, Georgia as a colony and as a state had clearly adopted

60
the then current common law doctrines which have been described above.

Thus, there existed a doctrine of trusteeship for public purposes imposed

on state proprietary ownership of foreshore areas, beds and waters of

tidal streams, and beds and waters of marginal seas. It was implicitly
established in Mayor & Aldermen v. State, 61 that these trusteeship rights

could be abridged in the case where the Legislature determined such

regulation was necessary for the improved use of the public right. However,

what other restrictions attached to this trusteeship right was unclear.

Much confusion and disagreement continue to exist today as to the nature

of those restrictions.

B. Current Legal Doctrines Concerning Estuarine Ownership and Use

1. Foreshore Land and Lands Under Estuarine Waterways

By statute in 1902, and subsequently in Constitutional form, "the

boundaries and rights of owners' of land adjacent to or covered in whole

or in part by navigable tidewaters" was recognized as extending to low-
water mark. 62 Similar legislation concerning title to beds of non-navigable

tidewaters provided that ownership should vest in the owner of land

adjoining such non-navigable tidewater. 63 Superficially considered, the

effect of this legislation would be to grant to the upland owner private

property rights in the adjoining foreshore areas to the extent of the land

between high and low-water mark. In the case of the landowner

adjoining non-navigable tidewater, since the relevant statutory wording

is in terms of owning the "bed" to the center of the channel, private

64
property rights to this area also seem to be recognized. However,

qualifications in the Act itself indicate that "exclusive appropriation"

of any tidewater, navigable or non-navigable, was not contemplated.

The public retained the free use of any tidewater for the purposes of

passage and "for the transportation of such freights as may be capable
65
of being carried thereover. 11 These qualifications indicate recognition

of the differing kinds of governmental rights in tidal areas- -alienable

rights as private owner, and trusteeship responsibilities which
presumably cannot be alienated to private interests. 66 Such specific

confirmation of the public easement of free use for purposes of

"passage, 11 along with transportation for some commercial purpose,
67
comprehend public use beyond navigation. There has been no useful

interpretation by the Georgia courts of the meaning of the term "passage.

Clarification of the rights granted might well be sought in an

examination of the history and purpose of both the Act and the later

Constitutional provision. The Legislature passed the statute apparently

as a response to the earlier Supreme Court decision in

Johnson v. State. 68 That case involved a prosecution for the wrongful

taking of oysters from an oyster bed which the prosecution claimed was

a private bed. The Supreme Court declared that the state statute defining

generally the rights of riparians on navigable streams had not changed

the common law rule providing that, absent specific grant or pre-

scription, a landowner adjoining tidal waters owned only to the high-

water mark. Consequently, there could be no wrongful taking from a

public area which was below that mark. The apparent legislative concern

prompting the enactment of the so-called Tidelands Act in 190Z was to

afford landowners certain exclusive rights to the adjoining oyster beds.

Similarly, records of the Constitutional Commission which drafted the

1945 Constitutional provision confirming this extension of title of lands

abutting tidal water to low-water mark, indicate the provision was
adopted in response to this interest in having oyster rights confirmed. 69

Subsequent Georgia cases which have considered rights granted

under the Tidelands Act all involve interference with an alleged right of

the riparian owner of the foreshore, and of non-navigable beds, to
exclusive oyster rights. 70 Though terminology characteristic of a

traditional private property interest is used in describing and upholding

the riparian's rights in these opinions- -"under the law the owner of the
adjacent land was the owner of the land under the stream' , 71 and
72
"property rights . . . extend to low-water mark" __ the cases dealt only

with the question of the riparian's right to an injunction to restrain

interference with his oyster rights in tidal areas. Thus, there has been

no determination of what are the limitations on the private use of

foreshore lands and beds of non-navigable tidal waterways which are

implicit in recognition of public rights in these areas. If the Tidelands

Act were to be construed to provide an unrestricted grant of state

property to private riparians, or a grant restricted only by the traditional

navigation servitude, even with the later constitutional confirmation, its
validity may well be questioned. 73

The 1902 Act did not purport to deal with beds of navigable tidal

waterways. Since the 1902 Act specifically provides that rights of

riparians on navigable tidewaters extend only to low-water mark, the

Act does not undertake to make the beds of navigable tidal waterways

subject to private acquisition. Accordingly, the beds of navigable tidal

waterways remain in the State unless a specific grant is shown. Of

course any effort to grant these beds would be subject'to public use

limitations recognized under the public trust doctrine which was
considered above. 74

2. Estuarine Waters (of the Foreshore and of Navigable and Non-

navigable Waterways)

Under the common law of the 1750's tidal waters were considered

to be part of the King's domain. Howeveri water problems were few and

demand for use of water centered around navigation. This historic use

of water is probably the best explanation of the frequency with which the

concept of "navigability" appears in the water rights cases.

In Georgia until quite recently there had been little development of

the law of rights in waters of the tide by the public or private user. In

1971 an important decision, West v. Baumgartner, was handed down by

the Court of Appeals confirming the doctrine that "ownership of tidal

waters is in the State" as at common law, unless altered by subsequent
State statute. 75 The case involved a controversy concerning public

fishery rights in tidal waters and, of necessity, required interpretation

of the Tidelands Act granting to the upland owner title to beds of "non-

navigable tide water. 11 The court, applying the statutory construction

rule which requires strict construction of a law in derogation of the

common law, concluded that the language of that Act to the effect that

title or rights are vested for "all purposes" would not convey any rights

in tidal waters, including fishery rights. Also, mere conveyance of
title to land conveyed no rights in tidal waters. 76 The implication of the

conclusion, that rights in such waters are to be determined by the common

law doctrine, is to recognize State ownership, along with those limited

riparian rights in tidal waters recognized at common law which were

77
described earlier, unless altered by statutes.

Other Georgia statutory law dealing with riparian rights in
adjoining or overlying waters 78 would not be applicable to tidal waters

unless so specified by the statute. Under the rationale of the Johnson

case, confirmed by the later West decision, statutes and case law defining

the rights of riparians in non-tidal waters have no application to tidal

79
waters.

It would appear to be clear under present authority that rights in

tidal waters generally are controlled by a doctrine of state ownership of

such waters, along with recognition of certain non-exclusive common

law riparian rights in those waters, essentially a right of natural use and

80
of access.

3. Submerged Lands of the Marginal Seas

The United States Supreme Court has. continually recognized state
ownership of lands beneath navigable waters within a state's boundary, 81

and it was assumed that this state ownership extended to lands under their

82
marginal seas. However, the Supreme Court in 1947, in a dispute

between the federal government and California over proprietary rights

to lands beneath marginal seas off the California coast, ruled that

federal rights were paramount over this marginal sea belt, seaward of

83
the state's inland waters. Then, in 1953, the United States Congress
'84
passed the Submerged Lands Act. The Act established in the states

title to the beds of marginal seas extending seaward three geographical

85
mile sin width from their "coast lines. However, for Gulf Coast

states the Act set a possible maximum width seaward of three marine
leagues (nine geographical miles). 86

19,

In the.case of Georgia, the Act, together with supporting state

legislation, recognizes the state's title to the beds of its marginal sea

extending three geographical miles in width "from ordinary low water"

87
or from the seaward limit of inland waters. Since the State had no

rights in this submerged land of the marginal sea until this grant from

the federal government under the Submerged Lands Act, there could be
no valid private title to this area from the State before 1953. 88

While the nature and extent of the right of the respective states in

this "marginal sea belt" along its "coast line" is ascertained, determi-

nation of the location of a state's "coast line" has caused difficulty. The

importance of this determination is apparent when it is understood that

it is from this line that submerged lands quitclaimed to the states are to

be measured, and that pre-1953 "ownership" of this area existed only in

the federal government.

The definition of "coast line" in the Act is "the line of ordinary

low water along that portion of the coast which is in direct contact with
the open sea and the line marking the seaward limit of inland waters. 11 89

"Coast line" thus includes a low-water shoreline and also a "fictitious
shoreline" which divides inland waters from marginal sea waters. 90 The

determination of "ordinary low water" on the shore presents relatively
little difficulty along Atlantic and Gulf shorelines. 91

Greater difficulty is encountered in locating "the seaward limit of
inland waters. "92 The United States Supreme Court in two recent

cases 93 has settled the definitional problem by holding that this line must

be drawn according to the definitions of the Convention of the Territorial

94
Sea and the Contiguous Zone. In United States v. Louisiana the Court

stated specifically that its holding in United States v. California con-

cerning the application of Convention definitions was "for purposes of

the Submerged Lands Act, and not simply for the purpose of delineating
the California coastline. 11 95 However, an earlier decision had concluded

that these definitions would apply only to those coastal states entitled to

claim under that section of the Submerged Lands Act making an

Itunconditional" grant of what is encompassed by a seaward boundary of
three geographical miles from the state's coast line. 96 Georgia is among
those states claiming under this section; 97 accordingly, it is entitled to
establish a "coast line" using these definitions. 98

The "coast line" as defined by the Convention is the "modern,
ambulatory coastline"99 and "is to be taken as heretofore or hereafter
modified by natural or artificial means . . . . Ill 00 This means that for

states in the category under discussion the "time element" has been
settled by the adoption of a theory of a "present coastline. "101 In

addition, the Supreme Court has decided that the Executive Department's

choice of international law principles in interpreting these definitions

for foreign policy purp oses is binding upon those using the definitions to
determine state boundaries. 102

Despite these clarifications, the application of the definitions to

particular estuarine areas to locate the actual boundaries will require

detailed, technical studies. An example of the problems which this under-

taking will present, and obviously a very important one, is that of how to

treat islands located close to the shore. The question arises as to

whether these offshore islands form an integral part of the mainland. In

United States v. Louisiana the Court declared: "the question whether a

particular island is to be treated as part of the mainland would depend on

such factors as its size, its distance from the mainland, the depth and

utility of the intervening waters, the shape of the island, and its relation-

103
ship to the configuration or curvature of the coast. 11 Those islands

which "form a portico to the mainland and are so situated that the waters

between them and the mainland are sufficiently enclosed to constitute

inland waters, 11 as well as islands which "form an integral part of a land
form" are to be treated as part of the mainland. 104 Actual identification

of those islands which may be considered to be a part of the state's

coast and the impact of the International Convention in making that
decision were left to a Special Master. 105 Georgia's barrier islands

seemingly would be considered sufficiently tied to the mainland to be

treated as an integral part of it. It should be noted that Georgia has

undertaken to define the boundaries of the State by statute, and in doing

so asserts a claim to all islands within twenty marine leagues of the

106
seacoas.

Another example of the problems to be solved is the delimitation of

the seaward lateral boundary between adjoining states. This becomes a

problem where the coast is indented as it is in estuarine areas. The

107
Convention adopts the principle of equidistance, but also gives certain

exceptions where this principle would not apply--e. g. , agreement between
states, "historic title or other special circumstances. 11 108

A Resolution adopted by the Georgia General Assembly in 1959

provides that the Secretary of State is authorized to contract for the

making of a survey to determine the State's boundaries under the
Submerged Lands Act, log but this resolution has not been implemented

and the State has not taken a final position as to where, in its judgment,

its coast line should be marked.

4. Tidal Waters of Marginal Seas

The notion that the width of a nation's marginal seawaters should

be measured by the three mile range of a cannon was accepted by inter-

national writers in the 1800's. The English courts took judicial notice
of this rule in a number of opinions. 110 In The Ann, Justice Story wrote:

"All the writers upon public law agree that every nation has exclusive

jurisdiction to the distance of a cannon shot, or marine league, over the

waters adjacent to its shores . . . and this doctrine has been recognized

by the supreme court of the United States . . . . Indeed such waters are

considered as a part of the territory of the sovereign. The problems

now involved in water law were not recognized clearly in early periods,

so that a statement of federal sovereign ownership would not be con-

clusive for all purposes. And it is more than probable that a state theory

,of a three mile interest in the adjoining marginal seas also represented
the existing law 112 as it was understood before 1947 when, as mentioned,

earlier, the United States Supreme Court (in United States v. California)

held that the original states had no proprietary interest in the marginal

seas, and even if it is assumed that they had had such rights, these were

surrendered to the federal government under the doctrine of paramount
rights upon admission to the Union. 113

The Submerged Lands Act abrogated federal proprietary claims to

lands underlying marginal seas and "the natural resources within such
lands and -waters" in the manner already discussed. 114 The question

now posed is that of determining the extent to which that Act recognized

rights in the states in marginal sea waters. The Act does not expressly

quitclaim the right to waters of the marginal seas as it does to the

underlying beds. It does vest in the states title and ownership of the

11natural resources" within the submerged lands and overlying waters.

However, the Act in its definition of "natural resources" states that the

term "does not include water power, or the use of water for the pro-
duction of power. 11 115 Reasoning from the express denial of a right of

use for one specific purpose, it could be argued that the statutory

language implicitly recognizes that the states have a proprietary right

for other, non-excluded purposes as far as the state's marginal sea
boundary extends. 116 There have been no cases dealing with this

question. However, it seems likely that the Act will be construed in the

manner indicated to recognize that all rights of use vested in the State

with the exception of the right to the use of water for the production of

water power.

C. Legal Doctrines Concerning Ownership and Use in Special Areas

1. Accretion, Reliction, Erosion, Avulsion

The principle that a riparian owner has a right of access to waters

adjoining his land embodies one of the most valuable rights of riparian

property. The changes on a shoreline or bank may affect and interfere

with this access. Basically, the changes that occur are of two types--

one, involving the removal or deposit of soil on a bank or shore; the

other, involving a change in the water itself, so that land once

constantly submerged becomes uncovered, or land formerly constantly

dry is covered.

Before undertaking to discuss the development of the law relating

to these phenomena, it is necessary to give specific content to certain

terms used to describe the various physical changes which take place.

"Accretion" may be defined as "gradual and imperceptible accumulation

of land by natural causes, 11 resulting from a deposit of soil ("alluvion" is

the term for this deposit upon the shore or bank). A recession of water

leaving uncovered land once submerged 117 is termed "reliction" or

"dereliction. 11 "Erosion" can be defined as a gradual and imperceptible
washing away of soil by natural causes. 118 "Avulsion" describes a

change either of land from one shore or bank to another, or in the waters

of a waterway, so that the bed or some part of it becomes dry land, when

that change is both sudden and involves more than an inconsequential

quantity of land. Different rules may apply when these changes are

caused by natural phenomena as distinguished from artificial causes.

Furthermore, on considering changes by artificial means, a distinction

may be recognized depending upon whether the upland owner or someone

else was the source of the artificial accretion.

(a) Non-navigable Tidewaters

At common law the controlling factor in determining whether change

affected private rights was whether the change was gradual and imper-

ceptible, or sudden. When a shoreline is changed gradually and imper-

ceptibly by accretion, relicition, or erosion, the boundary likewise

changes, but when the change is sudden, the boundary remains as it was
before the change. 119 In Georgia, this common law rule would seem to

have been expressly reaffirmed by statute where non-navigable tide-
120
waters are concerned. This statute, in describing the boundary of

the upland owner on non-navigable tidewaters, provides that:

.If the water is the dividing line, each owner's boundary
shall extend to the main thread or channel of water. If the
main thread, or center, or channel of the water changes
gradually, the line follows the same, according to the
change. If for any cause it takes a new channel, the origi-
nal line, if capable of identification, remains the boundary.
Gradual accretions of land on either side accrue to the
owner. 121

The term "any cause" in the statute would seem to mean a sudden or

IZ2
considerable change in the center or channel of a stream.

,.(b) Navigable Tidewaters

In the case of "navigable tidewaters" statutory law specifies that

123
the upland owner has rights which extend to low-water mark. Conse-

quently, regardless of whether, additional land is added to the shore or

bank by gradual, imperceptible change or by avulsion, rights to the low -

water mark continue to exist. This is also true irrespective of whether

tl)ere is sudden or gradual encroachment upon, or submergence of,

water on the shore. There have been no cases in Georgia determining

rights in estuarine areas where these ownership problems are,concerned.

Althoug h there is regulation of wharves by statute in Georgia, 124

there is no statutory consideration of the right to construct wharves nor

has there been found judicial exposition concerning such a right. In the

absence of express recognition of @uch a privilege or right in the upland

owner on tidal waters, it is assumed that the common law concerning

125
wharfing out would continue to be applicable. The common law did not

recognize in the upland owner on tidal waters an unqualified right to build

wharves but allowed this activity where there was no interference with

126
Crown or public rights.

The building of such artificial structures ordinarily results in

gradual accretions because of the change in the water flow and the

resulting deposit of alluvion. The accretion would in some instances

tend to extend the upland owner's property at the expense of the owner of

the bed which is in most cases the State. Again, however, there has

been no case law dealing with artificial accretions in Georgia.

2. Adverse Possession, Prescription, Dedication

The doctrines of prescription, adverse possession, and dedication

lZ7
provide legal methods of acquiring rights in property through use.

These doctrines existed at common law and are not usually defined in

complete form by statute. The generally accepted definitions are useful

for an understanding of the law in this area even though statutes and

courts. at times use certain of them interchangeably as if they were

synonymous. Usually the term "prescription" is descriptive of conduct

considered to create only an easement, whereas "adverse possession"

gives title; but as will be seen, some states such as Georgia use the

term "prescriptive" as a part of its definition of both types of interest.

The methods of creating rights in property by prescription and adverse

possession are substantially the same--there must be continuous, open
and adverse use by the claimant. 128 However, for adverse possession,
the use must also be exclusive. 129 The prescriptive right, because it is

considered an easement, is not usually thought of as inconsistent with

use in common with the owner. The period of use necessary to create

these rights varies. The time period to perfect adverse use is usually

specified by statute. "Dedication" results from an express or implied

manifestation of intention of the owner to allow the public to use his
property. 130 Only the public can acquire rights in property by dedication.
In Georgia, statutory law provides for "title by prescription, 11 131
11prescriptive right to easement, 11 132 and "dedication of land to pub .lic
133
use. if Though by statute no prescriptive title can be acquired in lands

belonging to the State, there is no prohibition which prevents the State

134
from gaining title in this manner. Adverse possession to create

"title by prescription" must be adverse use for twenty years by the

possessor that is public, continuous, exclusive, peaceable, and

135
accompanied by a claim of right. If actual adverse possession is

under written evidence of title, a period of seven years' use is sufficient
to give "title by prescription. 11 136 Possession to assert title to property

may be "actual*" or "constructive. 11 Both of these categories are dealt

137
with by statute.

Since title by prescription may be acquired in any property capable

of adverse use, except property of the State, prescriptive title to

138
minerals and timber also may be acquired.

In addition, incorporeal rights or easements may, according to
Georgia statute, be acquired by prescriptive easement. 139 It is recog-
140
nized that the public may acquire such prescriptive rights. In the

absence of express statutory rules on the subject, Georgia courts have

extended the rules governing the length of time for which possession is
required for statutory title by prescription to prescriptive easements. 141

Also, Georgia case law has recognized that permissive use may, in some

14Z
circumstances, serve as the foundation for such an easement.

The two essentials for dedication of land for public use--intention

of the owner to dedicate, and acceptance by the pAlic--may be express

143
or implied. Historically, dedication usually has been employed to

create public roadways. It is generally recognized that public use of

lands as a roadway with some public maintenance for a twenty-year

period constitutes a valid dedication. The cases have'reasoned either

that the owner acquiesced in such use if it continued for such a period so

that there is implied dedication, or that use for this time amounts to

144
prescriptive title. Where there is express dedication by the owner

such as use of direct language or performance of acts like laying out of

a street, and there has been public use so that interruption of use would

affect public or private rights, there is an effective dedication even
though a twenty-year period has not lapsed. 145 The statutory law in

Georgia provides only for dedication of lands for public use, but the case

law has also recognized dedication as applicable to other types of

property rights such as wharf property and rights in a non-navigable

146
stream.

3. Ownership and Use of Certain Natural Resources

Natural resources within estuarine areas, because of the multi-

dimensional nature of these areas, potentially exist on the surface and

within estuarine waters, on and under the tidal foreshore, and on and

under the estuarine bed. Resources such as waterfowl and fish which

exist on the surface or within the water column, because of their

mobility, differ from other natural resources.

At common law, fish and other wild animals while in their natural

state, being ferae naturae, were recognized as being owned in trust for
the common use of the people. 147 In addition, there was a common

ri ght to reduce ferae naturae to possession in tidal waters unless such

right was restricted as where there had been grant of an exclusive right
of fishery. 148 At common law there was Parliamentary power to grant

such fishery rights in tidewaters; therefore, the states which succeeded
to Crown and Parliamentary powers had this right unless, restricted. 149

This common law right to fish and hunt in tidal waters, subject to state

regulation, became a part of the common law of Georgia.

In Georgia, by an Act adopted in 1968, there was a broad assertion

of state ownership, jurisdiction and control over all "wildlife" within the
reaches of the State's sovereign power. 150 The statutory definition of

"Wildlife" includes all animal life, vertebrate and invertebrate, including

151
fish, birds, amphibians, mollusks.

A public right of fishing in tidal navigable waters and in the fore-

shore of these areas, was expressly recognized by the Tidelands Act of.
1 90Z. 152 The common law doctrine of a public right to fish and hu Int in

all tidal waters, subject to state regulation, has been subsequently

153
reaffirmed in the recent Court of Appeals case, West v. Baumgartner.

In, addition, the court held that that section of the Tidelands Act recog-

nizing that riparians have certain rights in non-navigabl tidewaters did
not convey to them any exclusive right of fishery in thosewaters. 154

Other Georgia legislation relating to specified tidal areas has recog-

nized certain exclusiv e riparian fishery and hunting rights. Two

companion sections of a 1955 Act prohibit the public from fishing,

hunting -in or entering with such intent, any salt water creek, stream, or

estuary leading from the Atlantic Ocean when the stream involved ends in

an island used and maintained as a public or private game preserve
which is owned by one ownership, family or estate. 155 One effect of

this Act, in prohibiting fishing and hunting in tidal streams where the

stream is of the character described, is to extend private fishery into

areas theretofore considered to be public. As part of the same legis-

lation, a private right of control over shellfish and waterfowl in all
156
upland owners of tidal streams or estuaries was recognized. If there

was joint ownership, control was to be exercised jointly. In addition,

such upland owner was "seized and possessed with exclusive right to take
shellfish" from this area. 157 Sport fishing and certain kinds of

commercial fishing in these tidal areas were excepted from the limi-
tations of the Act. 158 The enforcement provisions of the Act depend on

"posting" of the estuarine area.

Theoretically, there is a contradiction between certain provisions

of the latter Act and the later 1968 Act which specifically states that the

right to own and control wildlife is in the State. The provision of the

1968 Act declaring that to hunt, fish, or capture wildlife, to possess or

transport same, is a "privilege" enjoyed by the public is inconsistent

with recognition of private rights of full control in upland owners on tidal

streams. This inconsistency may be avoided if the assumption is made

that the 1955 Act did not intend to deny the State's power of regulation

concerning wildlife. It is also possible that such attempted assertion of

private control over waterfowl and shellfish in these areas will be found

to be inconsistent with the notion that the state owns and controls wildlife

as a trustee for the public.

The Tidewater Act conveys to the adjacent landowner the exclusive

right to all shellfish in non-navigable tidewaters, and the exclusive right

to oysters and clams down to the low-water mark in navigable tide-
waters. 159 There is also statutory authority for the State Game and

Fish Commission to lease to others state owned oyster beds of navigable
tidewaters. 160 The latter statute in addition provides for leasing of

beds for cultivation of oysters, which would appear to be a use for a

public purpose related to the natural use of the resource. It should be

noted that natural oyster beds are not to be leased; the lesse@e must plant
shellfish in artificial beds. 161 As a consequence, the state lessee has

not only a real property interest because he has leased a bed to carry on

a private right of fishery but, in addition, a personal property interest

since planted shellfish, being domitae naturae, are classified as domestic
162
animals.

The minerals in estuarine areas are a natural resource of special

interest. In Georgia these resources involve, among others, sand and

gravel, phosphate deposits, heavy minerals from which titanium is ob-

tained, limestone and shell deposits, clay materials and a potential for

petroleum.

if the general rule that ownership of land includes mineral rights

is followed, then the right to minerals is determined by ownership of
the particular land area involved. 163 There is also authority for the

proposition that where grant of public lands is involved express grant
or title to minerals is necessary if these are claimed. 164 This may be

considered an illustration of the judicial rule of strict construction with

regard to grants in the area of tidal public lands. Thus, should this

rule apply, to establish private mineral rights a specific grant of fore -

shore or submerged tidal land and the mineral rights thereunder would

be necessary. The State Mineral Leasing Commission, created by a

1945 Act, was give, the power to'grant exclusive mineral rights in all
State-owned lands and water bottoms through its leasing authority. 165

In Georgia this would include the beds of inland estuarine waterways

which are "navigable, and the submerged lands of the marginal sea from

the State's "coast line" to the present three geographical mile limit.

Whether or not foreshore areas and beds of 11non- navigable" inland

estuarine waterways and the foreshore of inland tidal navigable waterways

and of the marginal sea are considered State-owned for mineral rights
166
purposes depends upon the construction given the Tidelands statute,

and the determination of what legal doctrines control the right to, minerals
in these areas. 167

Though one avenue of approach to state control of estuarine re-

sources is dependent in large measure upon the legal doctrines determining

public and private ownership, which have been the subject of discussion,

the existence of certain private interests in estuarine areas does not

preclude state control. This power of the state to regulate even where

private interests exist is extensive. A. discussion of this approach as a

basis for regulation of the area in question is dealt with in the following

section.

D. -Other Statutory Controls

1. Background

Public concern about the maintenance of estuarine environmental

quality has resulted in increased legislative interest in programs for

conservation and.management in this area. The state's power, and the

capacity in which it may seek to control the, estuary to that end, will vary

with the type of ownership interests which the law recognizes in the

specific area under consideration. If the estuarine area is state-owned,

then state public policy can readily be adhered to, and implemented to the

fullest extent. Regulations restricting activities in areas recognized as

privately held, or in which there are recognized private interests are

quite likely to be questioned in the courts. These statutory regulations
take a variety of forms. 168 Usually, today, zoning and permit statutes

are resorted to for this purpose. Innovative estuarine'controls Where

zoning is not practical may very well in the future simply take the form
of expanded water quality laws. 169

Where affected estuarine lands and waters are considered private

property the regulation in question will be examined to determine whether

it comports with federal and state Constitutional requirements which

prescribe a "taking" of private property without due process of law..

This requires a judicial determination of whether the regulation is a

170
valid or, as the principal inquiry is usually put, a "reasonable"

exercise of the state's "police power" to legislate to protect the "public

health, safety, morals and general welfare. 11 If valid, the, regulation

must satisfy two criteria: first, power must have been exercised for a

proper purpose, and second, the particular purpose must be one which

may be accomplished lawfully through regulation without resort to

condemnation under the state's power of "eminent domain. 11 Conservation,

and estuarine conservation specifically, has been recognized to be a
proper purpose for use of police power regulation. 171 However, the

particular criteria which will be used in making a decision as to whether

this proper purpose may be effectuated by such a use of the police power,

or whether resort to eminent domain power is required, remain

imprecise. The question has received much attention from the commen-
tato r s. 172

On the other hand, little attention has been given to the implications

of the public trust doctrine in regulating areas in which interests are

held subject to it, but which are otherwise thought of as being "privately"

173
held. Commentators for the most part have discussed the trustee-

ship doctrine as it functions to restrain state action in dealing with these

land and water areas. If the trust obligation imposes particular

restraints on governmental action in these areas in the public interest

and in recognition of the public's rights, it would seem also to imply

power in the state to regulate, different in kind f rom the.statel s general

police power. This affirmative interpretation of the trust obligation may

be recognized.as but another way of stating that these special areas which

are in private as well as public hands continue to be impressed with the

trust servitude.

Another important question certain to occupy the courts is whether

these comprehensive control schemes such as zoning or expanded water

quality control statutes have impliedly repealed, or limited, the older

regulatory legislation which directly or indirectly affected the estuarine

area such.as that dealing with fishing, mining, highways, drainage

districts and the like.

Z@ Statutory Regulation in Georgia

Georgia's recently adopted "Coastal Marshlands Protection Act"

provides for some management and conservation power over estuarine
areas. 174 It prohibits altering coastal marshland without a permit. The

Act provides that 11[njo person shall remove, fill, dredge or drain or

otherwise alter any marshlands . . . within the estuarine areas thereof

without first obtaining a permit from the Coastal Marshlands Protection

175
Agency. It not only prohibits such activities without permit but also

any activities which would "otherwise alter" marshland. Thus, and

importantly, it would appear that "indirect" as well as "direct"

alteration is included within the prohibition. For example, activities

which initially only affect estuarine waters, such as dredging or diking

in tidal waters or changing the tidal flow, might well be interpreted to be

activities which "otherwise alter any marshland.

In determining whether a permit is to be granted, the Coastal

Marshlands Protection Agency must consider the "public interestil that

is, whether the proposal (1) involves "any unreasonably harmful

obstruction to or alteration of the natural flow of navigational water";

(2) creates any "unreasonably harmful or increased erosion, shoaling of

channels or'stagnant areas of water"; (3) involves any unreasonable, inter-,

ference with the conservation of "marine life or wildlife or other natural
resoucesil such as "fish, shrimp, oysters, crabs and clams.. 176 Several

agencies and activities are exempted from provisions of the Act, among,

the most important of which are the State Highway Departmen t, agencies

of the United States government arid of the State charged with navigation

responsibilities in rivers and harbors, certain activities of public

utility companies, and activities of companies which construct and
maintain bridges and railroads. 177

To aid in clarifying state policy and to implement planning in the@

area the Ocean Science Center of the Atlantic Commission, established

in 1967, has been invested with planning powers for coastal and offshore
waters.1-78 Other planning commissions also exist on the state and local
level with broad planning powers. 179

In addition to this legislation, there are several state agencies

which are empowered to acquire, regulate and develop coastal areas

for certain purposes. A listing would include the State Game and Fish

Commission, the Department of State Pa@rks, the Jekyll Island State Park

Authority, the State Ports Authority, the Georgia Coastal Scenic Highway
Authority, and County and Municipal Development Authorities. 180 Those

agencies which are not excluded from the Act, it seems clear.. must

comply with the Coastal Marshlands Protection Act where their activities

involve direct alteration of coa,stal marsh. As has already been noted,

careful reading of the Act would seem to require that permits also be
obtained where there is indirect alteration of protected coastal marsh, 181

such as that resulting from dredging of harbors or waterways by County
or Municipal Development Authorities. 182 However, other agencies

such as the State Ports Authority, which i's charged with the maintenance

and improvement of harbors in the State, and which is exempted from

permit requirements, can develop marshlands which it acquires for

special purposes without regard to the policies of the Coastal Marshlands
Protection Act. 183

Thus, in Georgia, regulatory control of the estuarine area con-

sists primarily of permit regulation of the coastal marshlands. There

are, however, 'exempted activities and agencies which affect substantial

portions of the area. Essentially this is "single purpose" legislation

which affords recognition of non- exploitative uses of marsh in the permit

evaluation procedure. There is no "multi- purpose" estuarine area or

coastal zone management legislation which would focu's on planning for

both conservation and development of the area.

THE SOUTH CAROLINA LAW

A. Early History of Estuarine Law

The English common law concerning the lands and water of tidal

areas has been discussed at length at the beginning of the materials

relating to Georgia and is equally applicable to the study here because it

was this law which became a part of the legal system of South Carolina.

South Carolina, as an English colony, was governed first as a

proprietary colony from 1670 to 1719 by the Lords Proprietors of
Carolina, under charters from Charles 11. 184 The two charters of 1663

and 1665 from Charles II to the Lords Proprietors provided that laws

enacted by the Proprietors with the advice of the Freemen of the Province

should be "as near as may be conveniently, agreeable Io the laws and
customs of this our Kingdom of England, 11 185 and in the case of those

ordinances which, out of necessity, might have to be enacted without the

advice of assemblies of freeholders, they should be "not repugnant or

contrary, but as near as may be agreeable to the laws and statutes . . .
of England. 11 186 And in 1712 an- Act was passed which specifically

stated that all English common law (with certain exceptions not impor-

187
tant here) was in full force and effect in the colony.

With the overthrow of the proprietary government,,the province

188
became a royal colony from 1720 to 177 The instructions which

accompanied the royal governor made provision for a different form of

189
government in the Colony.. by providing for a Governor, Council and

190
Assembly. Provincial alssemblies of the province were given power

191
to make local ordinances not repugnant to English law.

After the American Revolution the, State of South Carolina

succeeded to all the rights and powers of the English King and

192
Parliament. Early South Carolina constitutions provided for con-

193
tinuing in force all former colonial laws not repealed or temporary.

That the common law, generally, continuedfo bethe law of the State

except where repealed or changed, has been recognized by the courts of
South Carolina in nume.rous decisions. 194

These Charters from Charles Il granted all the land'and waters

within the specified boundaries to the Proprietors and 'provided that they'
could freely alienate their holdings, 195 a privilege which they exercised

extensively. Following the'transition to a royal colony, these grants or

patents from the Lords Proprietors, if regist-6red, were recognized by
the royal governor in the Quit-Rents Act of 1731. 196 Later these grants
were validated by the State of South Carolina by statute. 197 The State

also validated by statute title to lands claimed under actual possession
for five years prior to July 4, 1776. 198 In 1784, the State Assembly
passed a general Act for granting "vacant land. 11199 There is no

definition of "vacant land" in the Act, the general purpose of which was
settlement and cultivation of unsettled areas of land. 200 An Act of 1787

which uses the term "vacant land" in describing grant of submerged

tidal lands further describes the ',vacant land" as that "covered by
201
water. It would appear to have been assumed that the term "vacant

land" without explanation would not have been sufficiently descriptive to

denote this estuarine land.

On the other hand, some early tax statutes appear to proceed on

the assumption that estuarine lands were generally the subject of grant.

The Act of 1784 provides that a tax shall be "imposed onlall lands

granted within this state" and defines different categories of land for tax
purposes, among whi-ch were three categories of "tide swamp. ,202

Later acts continued these or similar classifications for taxation

203
purposes.

Certain early statutes did deal particularly with foreshore areas

and water lots. An Act of 1714, in providing for the building of a seawall,

for the City of Charleston, contained certain regulations concerning

claims to foreshore areas, and a later Act, also concerning Charleston's

seawall, provided a method for settling disputes between claimants of
these foreshore areas. 204 The "ownership" in the foreshore recognized

in those Acts is a limited ownership, as is made clear by specifying

that "any person that hath right to any of the said lots . . . from high-

water to low-water mark, shall only have liberty of building of wharfs

and bridges upon the same, and not any house, edifice or other

205
buildings . . . . An Act of 1787 made it lawful forever for persons

to carry off oysters and oyster shells below high-water mark from land

for which surveys had been taken out where the survey had not been

206
passed and confirmed by grant under the governor's signature. The

same Act provided that owners of wharves and low water lots in

Charleston could obtain grants for land covered by water in front of

their wharves or lots as far out as specified channels in the Ashley and
Cooper rivers. 207

These acts from the pre-statehood era concerning estuarine lands

(foreshore areas and land under tidal waterways) are not inconsistent

with a theory of public trust in tidal areas. The statute settling disputes

of claimants to foreshore areas on the bay of Charleston, coupled with

the requirement that persons having a right to such foreshore area build

pa rt of the seawall, indicated that the private right to the foreshore area
was limited. 208 Such a person might use the area in question for

building a wharf or bridge but not other, structures. Recognition of

public use of foreshore areas for the taking of oysters and oyster shells

would not be inconsistent w ith trust ownership, and allowing owners of

wharves and low water lots to obtain grants of land covered by water in

front of their wharves or lots out to specified river channels might well
be considered Ian extension of the privilege of wharfing out. 209 The tax

statutes mentioned which differentiate to some extent between estuarine

and other types of land to be taxed might be considered as taxing whatever

interests had been alienated. For example, the "private" ownership of

Charleston bayforeshore and low-water lots was understood to be
limited by public use. 210

The early Constitutions adopted by the State do not consider the

matter of disposition of lands or waters. They do, however, provide that

laws in force in the Colony, or State, should remain in force until altered
or repealed. 211 The Constitution of 1868, the first of South Carolina's

Constitutions to be ratified by the public, required that all grants be

issued in the name of the State and recognized all navigable waters of the
State to be common highways free to all. 212 The 1895 Constitution

specified that lands belonging to, or under the control of, the State
should never be donated, directly or indirectly. 213

Early case law reveals the same ambivalence found in the early

statutes concerning the State's power and intent in providing for grants

touching estuarine areas. The Oak Point Mines case, decided in 1875,

stated that State statutes conclusively revealed that land under tidal
navigable waters might be the subject of grant. 214 This land flowed by

the tid e was considered to be like all other vacant land and no special
act of the legislature was necessary to confer title to it. 215 The

statutes which the court regarded as "conclusively" evidencing this were

the early taxation statutes, the acts concerning the building of a seawall

for the City of Charleston and regulating claims to the foreshore areas,

a statute reserving for public purposes all vacant land covered by water

which was not privately held in the Charleston harbor, and the Act with

respect to gathering of oysters and oyster shells in the foreshore areas
by members of the public. 216 Navigability was treated as being of

importance only for the purpose of deciding whether the stream involved

was tidal navigable water. The foreshore area of these tidal navigable

waters in controversy here was. found to be privately owned under a

grant specifying a boundary to the "low-water mark. However title to

the bed was said to have remained in the State because there was no

express grant, nor were there long continued acts of ownership in this

217
area.

Several years later the Supreme Court of South Carolina, in State

v. Pacific Guano Co. , determined that beds of navigable tidal creeks were

not "held by the state simply as vacant.lands, subject to grant. in
the usual way. . . . 11 218 The court declared that 11[t]he state had in the

beds of these tidal channels not only title as property, the jus privaturn,

but something more, the jus publicurn, consisting of the rights, powers,

and privileges derived from the British crown, a nd belonging to the

219
governing heads. In reaching this conclusion the court considered

in detail the common law doctrine that certain lands and waters were

held by the crown and later by Parliament in trust for the people.

In the course of determining the extent and nature of sovereign

ownership of tidal areas the court equated the notion of "tidal" with

"navigability" of waters at common law, and stated that tidal streams are
navigable in law only when navigable in fact. 220 As a consequence of

having thus confused these early common law doctrines, the court was

led to the conclusion that the public land flowed by the tide included only
areas which were navigable in fact. 221 However, the "common law
boundary rule" of tidal areas was Istated to have remained unchanged. 222

This "boundary rule, 11 that a grant of land bounded by tidewater

extends only to ordinary high-water mark absent specific words in the

grant indicating a lower boundary, was considered later the same year in
State v. Pinckney. 223 There it was held that marshland below high-water

on tidal navigable streams remained in the State except for specific areas

named as granted, adhering to the principle that a deed calling for

boundaries on tidal navigable streams conveys only the land to the high-

water mark. The court quoted with approval the statement: "If the

boundary be a navigable stream, that is, one in which tide ebbs and
flows, the land extends only to the water's edge, or to high-water mark. 224

This was its conclusion despite the court's stated awareness of the change

of the definition of "navigability" in it s earlier decision. Assumedly, the

court, when it equated "navigable" with tidal, and gave the term

11navigable" the definition of "navigable in fact, 11 saw this as affecting

only the concept of sovereign ownership of tidal areas, leaving unchanged

the common law boundary rule of strict construction of grants affecting

lands bounded by tidal waters. For purposes of the latter, "navigable"

was not a question of "navigable in fact, but was simply equated with

the presence of tidal waters.

In Heyward v. Farmers Mining Co. decided in 1894, the test for

navigability and, consequently, for sovereign trust ownership of tidal

areas under this doctrine, was stated to be capacity for navigation
irrespective of the type of boating or the fact of actual use. 225 in

addition, the court in this case clearly subscribed to the principle that

beds under navigable tidal waters. could not be alienated under the
statutes providing generally for granting of vacant lands. 226 The court

indicates four.limitations on the power of the state to dispose of these

trust lands. The disposition must be conducive to the best interests of

the state's citizens; it could be made only through a special legislative

act expressing clearly the intention of the legislature; there could be no

grant of all the lands or waters subject to the trusteeship; there could

be alienation only of those trust lands which do not impair "the public
interest in what remains. 227

The vigor of the court's opinion may be seen in its selection of
this quotation from the classic Illinois Central case: ZZ8 "The state can

no more abdicate its trust over property in which the whole people are

interested, like navigable waters and soils under them, so as to leave

them entirely under the use and control of private parties, except in the

instance of parcels mentioned for the improvement of the navigation and

use of the waters, or when parcels can be disposed of without irnpa--*rrnent

of the public interest in what remains, than it can abdicate its police

powers. . . . [Wlith trusts connected with public property, or property

of a special character, like lands under navigable waters, they can not

be placed entirely beyond the direction and control of the state.

To summarize the case law of this early period in South Carolina,

beds of tidal navigable streams could be alienated only by special legis-

lative act and then subject to trusteeship limitations. The scope of the

term "navigable" was enlarged to 'Include pleasure boating as well as

boating for commercial purposes. Thus, the beds of tidal streams
capable of valuable floatage, whether,for pleasure or commerce, would

be subject to these restrictions as to alienation. it should be noted that,

through an expanded test of "navigability" for determination of title to

tidal beds, almost all of these areas could be considered subject to

public trust restrictions (thus the case law had almost returned to the

common law concept of sovereign trust ownership of all tidal beds).

Foreshore areas of all tidal streams would be subject to the common

law boundary rule that grant of land in these areas extended only to

the high-water mark, absent specific words in the grant indicating low-

water mark.

B. Current Legal Doctrines Concerning Estuarine

Ownership and Use

1. Foreshore Land and Lands Under Estuarine Waterways

The nineteenth century cases which were discussed in the, previous

section to which the State was a party involved a determination of rights

to phosphate beds. When interest in mining phosphate declined in the

early part of the current century, the cases concerning estuarine areas

which came before the appellate courts usually dealt with either rights

to oyster beds or interests in lands for real estate development purposes.

229
In Alston v. Limehouse, decided in 1901, the plaintiff, a riparian,

sought injunctive relief against defendants' trespas s for gathering oysters

in an area bordering a navigable tidal stream. The court recognized

the validity of plaintiff's claim to ownership of the foreshore area

between high and low tide. The court reasoned that since these areas

when.covered by high tide were not navigable in fact (were not of

sufficient depth and width "to float useful commerce") they were not

publicly owned, because navigability determined the areas of land

publicly held. In this connection the court examined the grant from

George II and construed its terms to have the effect of granting the

marshlands within the "boundaries" of,th6 grant to plaintiff's prede-

230
cessors in title, and thus to the plaintiff. There was no consideration

of the common law "boundary concept" that a grant of land with tidewater

boundaries passes title only to the high-water mark,@ absent specific

inclusory words.

The "boundary concept, 11 however, was the basis for decision in

231
the Cape Romaine case, decided almost thirty years later. There

also the plaintiff complained of trespass by the defendants who were

gathering oysters in the foreshore area claimed by plaintiff and injunctive

relief was sought. The court stated that the boundary line is high-water

mark on a tidal navigable stream in the absence of, "specific language

showing that it was intended to go below high-water mark" and that

"the portion of land between high- and low-water mark remains in the

232
State in trust for the benefit of the public interest. 11 Words in the

plaintiff's deed giving boundaries as "the Atlantic ocean, certain bays,

islands, marshes, streams, etc. 11 were not specific enough to prove
title to foreshore areas in tidal navigable streams. 233

Twenty-two years later the Supreme Court of South Carolina, in

the Rice Hope case, in reaffirming its holding in Cape Romaine, stated

its conclusion in these terms: "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. 11234

Both the Alston and Cape Romaine courts apparently would have

considered the beds of navigable tidal streams to be owned by the,State

although the focus of these cases was upon ownership of foreshore areas.

This conclusion seems warranted because these beds were necessarily

characterized as being "ways useful for commercell, according to the

Alston case and "ways in which the tide ebbs and.flows" And,, conse-

quently governed by the special rules which had developed concerning

235
alienation of tidal areas, according to Cape Romaine. It seems.clear

that these later cases, in dealing with state grants to private grantees,

thus adhere to the general position taken in the earlier cases which had

236
recognized state ownership of the beds of navigable tidal streams.

However, there was less clarification in the area of ownership of

beds of non-navigable tidal streams. The two theories of ownership of

tidal beds--sovereign ownership because of navigability and sovereign

ownership because of tidal character- -do not conflict where navigabl

tidal beds are at issue. But where non-navigable beds are concerned,

public ownership could result only if the tidal character concept is

considered to be controlling, thus,requiring application of the special

rules as to alienation, in' this case that specific inclus'ory words are

needed in a grant of land bounded by tidal waters if it is to extend beyond

high-water mark.

The early cases clearly consider non-navigable tidal bed ownership

to be determined by the "navigability" theory. In the Pacific Guano case

the Supreme Court stated: "We cannot hold that the bed of a creek not

navigable, although tidal, belongs to the state to the exclusion of the

237
@riparian proprietor. In defining "navigability" the court referred to

definitions in a number of other cases which had used the term, but

would appear to have approved that of capacity for use for, purposes of

commerce and transportation regardless of actual use or type of vessel.

In a second early case, Heyward v. Farmers_ Mining Co. the court

broadened the concept of "navigability. 11 While the criterion of capacity

for navigation without reference to the type of craft or actual use remained,
the purpose of use was considered- immaterial. 238

The post-1900 cases do not deal with ownership of beds of non-

navigable streams as such. However, the cases approved ownership

concepts with respect to foreshore areas which would appear to apply

also to lands underlying non-navigable tidal streams. For example, the
Alston case 239 continued to subscribe to the theory that navigability was

determinative of the area of sovereign ownership and was more

restrictive in its definition of navigability* (capacity for the purpose of

useful commerce) than the Farmers Mining case just dis cussed. On the

other hand, the conclusion in the later Cape Romaine 'Case that the

common law boundary concept (one of the concepts which developed con-

cerning alienation of trust areas) was applicable to tidal streams indi-

cated judicial adherence to the tidal character theory of sovereign
ownership. 240 This rule of alienation concerning tidal areas which had

not been changed in South Carolina, it will be recalled, requires specific

inclusory words for grant of land bounded by tidal waters to include

areas below high-water mark, and if applicable to determination of any

ownership claims in estuarine or tidal areas, would apply to one part

as well as to another.

A second body of doctrine concerning ownership of foreshor'e areas,

including, in some instances, submerged "water lots" and, consequently,

since the latter are tidal beds, land under tidal waterways, has developed

in the context of controversies concerning State grants to the City of

Charleston. Several of these cases have involved title controversies

between private parties in which there has been no consideration of

possible public ownership, either because it was stipulated that the
foreshore area was effectively granted, 241 or because the court refused

to try the validity of such a claim in the absence of appearance i1n the

242
action of the entity in whom such an interest might reside.

243
In another of the cases involving only private parties, one of

the parties, by way of justification for his failure to purchase reclaimed

marshland lots as was alleged to be necessary to establish his right.to

the disputed area, relied, upon an Act of the Provincial Assembly adopted

in 1768 which appropriated the area as a "common" for the City of

244
Charleston. The court stated that this Act, even if enacted by the

legislature after statehood, could not bind future legislatures. Hence,

a subsequent Act of the legislature by which the City of Charleston was

incorporated and granted certain marshlands formerly appropriated for

a common, but to be sold as the council should think most conducive to

the City's welfare, was valid. Other arguments of the defendant to the

effect that there are restrictions on the right of the legislature to

sanction a change of use of a public grant 'because the restric tion existed

more particularly in favor of abut ting landowners who have a vested right

in the use of the common, as well as the contention that such a grant was

for a restricted portion of the public and.11was not a grant to the public in

the sense of the principle contended for, 11 also were rejected. In this

connection the court asserted that abutting landowners have no easement
over public land. 245

In two later cases actions were brought against the City of

Charleston which raised the question of the power of the City to convey

foreshore areas and submerged land areas which had been granted to it

for real estate development. The first of these cases, Haesloop v.
246
City Council, involved a purported donation by the City of reclaimed

water lots, which were formerly submerged land areas, for hotel con-

struction., In a rather complicated opinion the court declared that this

action involved no violation of the Constitution of 1895'prohibiting

donation of land belonging to the State because this land could not be

characterized as State land since the area in question, by virtue of the
Act of August 13, 1783, 247 vested in the City of Charleston before the

adoption of the 1895 Constitution. The court noted that no question was

raised by the parties as to whether there was a limitation on the State

power-to alienate because of "rights of navigation or of piscary or other
public rights. 11248 In the absence of such a contention, the grant was

considered to be an "unlimited power of disposal in trust for the benefit

of the public of the municipality of Charleston, 11 249__ a grant to be used

for the benefit of the local public. The legal test for determining the

appropriateness of the Council's action as "trustee" was stated to be

that standard applicable to a trustee of a private estate. The local

interest in obtaining a tourist hotel for the City was considered by the

court to be sufficiently affected with a public interest to satisfy the test.

Z50
In a more recent case, Ehrhardt v. City Council, there was an

attempt to have declared void a deed of land "consisting chiefly of a mud

flat, 11 generally covered by high tide, which had been given by the City

Council to a prospective apartment house builder. As in the earlier

West End case, the argument was made that the property was originally

dedicated as a "common" by the Provincial Assembly. The court, in

rejecting the argument, listed the legislative acts by which grants of

submerged and foreshore land were made to the City, determined that the

land in controversy was within the area granted and concluded that there

could be no question that the City owned these areas in fee simple. The

court considered and found untenable the argument that lands dedicated

for a common by the Provincial Legislature of South,Carolina were "to
be deemed forever so dedicated. 11 251 And since the State statutes in

question provided that the Council had power to sell or lease for "public

and commercial" purposes, and an apartment building could be so

classified, the court upheld the validity of the Council decision and the

grant made to effectuate it.

It should be noted that in neither the Haesloop or the Ehrhardt cases

was there a consideration of the "public trust" doctrine as it affects a

municipal grantee. Presumably, a state grant of these tidal areas could

be made to a municipality only when subject to the same duty to deal with

the areas in a manner consistent with public trust responsibilities as was

impressed upon the State itself. It will be recalled that the Supreme

Court of South Carolina in the Haesloop case specifically noted that no

question of the limitations on State power to alienate because of "rights

of navigation or of piscary, or other public rights" had been raised by
counsel 252 and, it would appear, played no part in the court's reasoning.

These statutory grants to the City of Charleston of foreshore areas

and inland submerged lands began in 1768 with an Act dedicating vacant
I Z53
marshlands as a "common" for Charleston. Upon incorporat.ion,

which was by an Act passed in 1783, that municipality was vested with

the power to make such leases or sales. of the marshland which had been

dedicated for a common and of other low water lots, as would appear
conducive to the welfare of the City. 254 Subsequent statutes made

additional grants of submerged areas to the City and also again undertook

to vest in the Council the power to lease or sell for "public or commercial"

purposes that part of the vacant marshlands and mud flats earlier set
apart as a common. Z55

These statutes and the action of the municipality based upon them

gave rise to the development of this body of legal doctrine peculiar to

state grants to municipal grantees followed by grants to private parties.

The treatment given these grants in the courts may be compared to that

in cases involving disputes concerning foreshore and inland submerged

lands where state grants to private grantees directly were involved.

There the traditional common law concepts of sovereign ownership of

all tidal areas with ownership held subject to a public trust (the extent

of the trust area having been determined at one time by definitions of

navigability), were said to prevail. The legal inquiry in the case of

grants by the municipality centered on statutory construction of the

governmental grants as though such a governmental entity's only interest

in the tidal areas in question were that of a private owner. The notion

implicit in the, public trust doctrine which would require that municipal

grantees take the property impressed with the same trust as the state

where tidal areas were concerned was simply not considered.

Any attempt to summarite the present posture of the law of South

Carolina concerning ownership of foreshore and inland submerged lands

in tidal areas involves reconciling two seemingly ponflicting doctrines-

one, that these areas of foreshore and submerged lands were considered

to be not different from other vacant lands; the other, that special

doctrines involving limitations in terms of purpose of use and alienation

were applicable where these estuarine areas are involved. Since the

Charleston cases do not consider the public trust doctrine as it affects

grant of state trust lands, those cases which have done so would seem to

be. persuasive, if not controlling authority. This would mean that South
256
Carolina law recognizes a doctrine of trust ownership of tidal areas

"for the benefit of the public" and that special rules concerning its

alienation are applicable. The strict common law boundary rule is

applied to all lands bordering tidal areas. Thus the foreshore of tidal-

areas remains in the State absent proof of a grant with specific words

indicating that the foreshore is also granted (the possibility of proof of

that adverse possession Which would entitle private claimant to ownership

rights in this area is discussed in a later section dealing with adverse

possession). In addition, the Farmers Mining limitations on the power

of the State to grant submerged lands would apply, i. e. , these grants

must be for the public welfare, must be made through special legislative

act clearly stating legislative intention to grant, and must alienate only

257
such areas which do not impair the estuarine area remaining. In the

Charleston cases, it might be noted, there was consideration of whether

the grant was conducive to the public welfare of the citizens of

Charleston., or "for public or commercial purposes, " but therewas no

consideration of the power of the State in the first instance, to alienate

its trust property for such a public purpose. The question of the extent

to which tidal foreshore and submerged lands conveyed subject to the

trust are limited by public use remains undecided.

In 1924, following this case law development dealing with contested

private grants, the foreshore a'nd submerged lands in tidal areas not

previously granted by the State we re declared by legislative action to be
a common for the taking of fish. Z58 In 1957, by virtue of the Attorney

General's opinion interpreting this Act, the State announced a policy

which recognized in the State no power of alienation of estuarine areas
to private grantees unless by. special legislation. Z59 In keepin Ig with this

policy a recent grant by the State to a municipality was a more limited

grant, use was required to be for a public purpose and alienation of the
granted area was prohibited. Z60

2. Estuarine Waters (of the Foreshore and of Navigable

and Non-navigable Waterways)

As a part of the comprehensive Coastal Fisheries Laws enacted in

1 9Z4 11[tjhe@ waters and bottoms of the bays, rivers, creeks and marshes

within the State or within three miles of any point along low-water mark

on the coast" not previously granted by the State were declared to be a
Z61
common for the taking of fish. T us, waters of estuarine waterways,

coastal marshes and the marginal sea are, declared by statute to have

remained and be a common if ungranted. Waters of foreshore areas

which are not also marsh areas, though not specifically mentioned in

the Act, would seem to be included because the term, "bottoms" is

defined to include "tidelands of the State covered by water when at the
stage of ordinary high tide. IIZ6' While the Act contains no definition of

ilwaters" the assumption would seem warranted that the foreshore waters

which cover tidelands held as a common would be included in this pro-

tected category. The Act does provide authority for leasing by the'

Division of Commercial Fisheries of the Wildlife Resources

263
commission.

A determination of whether water rights have been "granted" in

foreshore tidal waters and waters of navigable and non-navigable water-

ways depends upon various state rules concerning the right to use of

waters. At common law there existed a doctrine of sovereign ownership

of these waters. together with recognition of a limited right of use by
264
riparians. Under the riparian system of water rights which developed
judicially in South Carolina, 265 rights to the use of waters is dependent
266
upon ownership of contiguous land. if the land is granted and its

character as riparian is established, rights to the use of the adjoining

water follow. As in other riparian jurisdictions, the private right to the

use of waters is shared.with other riparians and is governed by a
267
judicially evolved standard of "reasonableness" of use. If t e water

is considered navigable, riparian rights coexist with public rights of
use. 268 If non-navigable, the general rule is that the adjoining
proprietor owns the bed and water rights to the center of the stream, 269

and only private riparian rights are recognized.

However, the rules just mentioned have developed with respect to

non-tidal waters and for several reasons other rules may very well

apply in the case of tidal waters. First, the terms "navigable" and

11non -navigable" when used to, differentiate those waters in which there

are both private and public rights from those where there are only private

rights of use, may have different meanings when applied to tidal waters.

By statute all streams in South Carolina capable of being navigated by
rafts of timber or lumber are said to be "navigable. 11 270 However, this

statute, which was enacted in 1853, was not mentioned in the cases
discussing tidal navigability. 271 The most extensive discussion of the

latter concept is found in the Farmers Mining case, decided in 1894,

where capacity for navigability, regardless of purpose or extent of use,
was the accepted test. 272 That definition, which was accepted for

purposes of determining bed ownership, might well be considered also

applicable for determining water rights in the same tidal area. if this

were the case, public rights would exist along with private rights in all

tidal waters capable of floatage for commerce or pleasure.

Secondly, no distinction based upon whether the waters are

11navigable" or "non-navigable" was recognized at common law in

determining the extent of public rights in tidal waters and all tidal

waters were considered publicly "owned. 11 Furthermore, if it is

assumed that the rule of strict construction with respect to all law in

273
derogation of the common law applies to this situation, a special

grant of specific rights in tidal waters also would be necessary if there

is to be recognition of greater riparian rights than those limited rights

of use recognized at common law.

It @should also be, noted that while South Caro'lina'is, considered to

be a "riparian" jurisdiction, statutes have been enacted which authorize

274
"diversions" for certain specified purposes. These authorized

diversions are, in effect, permits to use water in certain amounts for,

11non- riparian" purposes. The right of riparians to recover damages

for these diversions is specifically reserved. Apparently, no rights of

diversion or grants of this type have been made in estuarine areas.

3. Submerged Lands and Waters of the Marginal Sea

South Carolina's ownership of the submerged,lands of its territorial

or marginal sea as established by the federal Submerged Lands Act

extends to "a line three geographical miles distance from its coast
line. 275 Although the Act defines ',coast line" as the line of

ordinary low water on the coast and "the line marking the seaward limit

Z76
''of inland waters" it "doe's not provide adequate criteria for delimiting,
with legal and technical @ce@rtainty, the boundaries of the states. 11 277

Decision.s of the United States.Supreme Court have prox@ided that for

those states such as South Carolina claiming under the section of the

Submerged Lands Act providing for an "Unconditional" grant of three

geographical miles, the "coast line" marking the State's seaward

boundary must be drawn according to definitions in the Convention of
the Territorial Sea and the Contiguous Zone. 278 Thus, as was the case

with Georgia, even with this clarification difficulties remain in actually

marking South Carolinats boundary in accordance with the provisions of

the federal act and doing so will require additional legal and technical
clarification. Z79

Since the federal act went into effect South Carolina has by legis-

lative amendments declared its seaward boundary to be that fixed by

Congress and also undertaken to fix the lateral sea boundaries between

South Carolina and North Carolina, and between South Carolina and

280
Georgia respectively. The amendments provide that this action shall

be without effect if Congress does not confirm it and if the states of

Georgia and North Carolina do not likewise consent to and adopt the

Act's lateral seaward boundaries provisions within a specified time

281
limit. To date, neither the federal government nor either state has

taken such action.

Since, under the United States Supreme Court decisions, South

Carolina had no rights in submerged lands of the marginal sea before

grant under the Submerged Lands Act, no valid title from the State to

such submerged lands could exist before the date of the Federal

282
grant. . Thus, no pre-1953 title to lands below the line of ordinary

low-water mark on the coast and the seaward limit of inland waters
could be recognized as valid. 283 Since that date the 1924 statute, which

declared tidal submerged land within three miles of any point along low

water on the coast to be part of a common for the taking of fish, would

effectively bar alienation of this submerged land except by,special legis-
lation. 284

The history of recognition of the right of use of marginal seawaters,

part of which would be considered estuarine waters, was discussed@
earlier in this study. 285 As indicated there, the Submerged Lands Act,

because it abdicated federal claims which had been recognized as

paramount, is determinative of a state's proprietary rights in marginal

seawaters., Since that Act also ves.ts title and ownership of natural

resources within overlying waters of the submerged lands in the state,

while reserving certain rights of use of water in the federal government,

the statute reasonably can be interpreted as impliedly recognizing that
other unreserved rights of use are in the state. 286 To the extent that

the Submerged Lands Act confers upon the state rights to use these

marginal seawaters, such rights could only be disposed of by the state

after the passage of that Act. Since the statute enacted in 1924 also

declared such waters were to remain a common for the taking of fish,

under present authority, no private rights of use in these marginal
seawaters could be obtained without special legislation. -287 There have

been no judicial interpretations of the state's proprietary rights in these

waters, either before or after the effective date of the federal Act.

C. Legal Doctrines Concerning Ownership and Use

in Special Areas

1. Accretion, Reliction, Erosion, Avulsion

(a) General Rule

The general rule at common law was that changes in a shoreline or

bank which take place gradually and, imperceptibly by accretion, reliction,

or erosion cause a change in the boundary, but where the change is
sudden the boundary remains as it was before the change. 288 Thus, the

riparian retained his right of access where there was gradual change but

not where the change was sudden. As the discussion above has indicated,

these common law doctrines would be applicable in South Carolina unless

changed by statute or the case law development.

Case law in South Carolina indicates recognition of the common law

rule of accretions where tidelands are concerned. In Intendant and Wardens

289
v. Charleston and W. C. Ry. Co , the court asserted that riparian

ownership was necessary to vest title to alluvion in the riparian.

Specific statutory exception to the common'law rule is made for land

formed by accretion. or reliction on Sullivan's Island, an island off the
Charleston coast which is declared by the statute to be State-owned. 290

Case law has also, seemingly, affirmed the State's adherence to

the general common law rule of avulsion. In the case of

Spigianer v. Cooner, .291 the court in its discussion of the law declared

that where the course of a river is changed suddenly as by violent floods,

the old boundary does not change. Nor was it necessary that a change

occur all at once to be classified as avulsion. On the facts of the case

before it, the court found that a change in the course of a river caused

by artificial means--here a man-made cut which formed a new'channel

f.o,r the river--was similar to sudden changes from other causes, and,

consequently, the riparian's boundaries remained as they were before.

292
A recent opinion of the Attorney General of South Carolina has,

taken the position that the common law doctrine recognizing sovereign

293
ownership of islands formed in tidal areas is a part of the law of

that State. The opinion asserts that islands formed from submerged

lands below low-water mark in tidal areas together with submerged
lands and,tidelIands are State-owned and are held in trust for the people. 294

It would thus appear that the common law doctrines of accretion,

reliction, erosion and avulsion are a part of the law of South Carolina

either because of general acceptance by the State of the common law, or

subsequent express recognition by the courts.

(b) Wharfing Out

As a part of the riparian's "right" of access it has frequently been

stated that the riparian has a "right" or "privilege" to construct a
wharf. 295 Though, as in Georgia, there is'statutory re gplation of

296
wharfing out, there is 'no judicial determination or statutory con-

297
sideration, of the right itself. Thus common law principles, would seem.

to be applicable. There was at common law no.unfettered right to

construct wharves into tidal waters, but such a use of the area was
permissible unless public rights were interfered with. 298 This position

seems impliedly adopted in an opinion of the Attorney General of South

Carolina which stated that there was no state agency with power to issue

a license to build a wharf and noted'that: "Such a wharf could not, of

course, be built so as to impair the use of a navigable stream or the use,
of lands belonging to the State of South Carolina. 11299

2. Adverse Possession, Prescription, Dedication

The most common method of acquiring property is by deed or grant.

However, under some circumstances, rights in property which may be

recognized in the courts can be acquired through use. Adverse

300
possession may be the basis of such a title. South Carolina recog-

nizes, through a combination of . case law and statutory development, title

by adverse possession which may be acquired on the basis of either of

two distinct theories--the common law "presumption of a lost grant" or

a theory of "statutory limitation. Title may be established against the

state under either of these theories.

The'idea underlying the "lost grant" concept is that one in

possession must be (or have been) there by virtue of a "grant, and if

he cannot locate written evidence of it, it must have been lost. Ordinarily

there is no reason why one claiming on this basis should not have the

benefit of presumption that there was such a grant. However, if as in

th ecase of tidal lands, grants of the. area would be against the public

policy of the state, to indulge in such a presumption would also seem to

be contrary to that policy. This approach was adopted by the Supreme
Court in t.he Pacific Guano case. 301 There the court, in con sidering

whether there could be recognition of a claim based upon adverse

pos session of the beds of tidal navigable streams where the party sought

to invoke the presumption of grant, declared no presumption would be

recognized because to do so would be contrary to the policy of the
state. 302 Other cases have indicated that tidal marsh or foreshore
areas also are not susceptible to presumption of grant 303 because to do

so would run counter to the common law strict boundary rule which

continues to be adhered to in South Carolina.

Turning to a consideration of a claim of title by adverse possession

by virtue of the "statutory limitation" doctrine, South Carolina by

statute provides that the State is subject to a time limit in recovering

its property from another, thus removing the barrier existing at common
law to claims aga .inst the sovereign based upon adverse possession. 304

The statute in question provides that the State shall not sue by reason of

its right or title unless such right or title accrued within the preceding

twenty years, or unless the State, or those under whom it claims, shall

have received rents and profits from the land or some part thereof within

that period.

There are no decisions which elaborate upon the requirements for

a claim against the State based upon adverse possession. Presumably,

since an adverse possession claim based upon the statutory limitation,

like a similar claim asserted against a private party, is based upon

wrongful possession, the judicially developed requirements for successful

assertion of the claim against a private party would also be applicable 'In'

claims against the State. In controversies between private parties the

possession relied upon must be open, notorious, hostile and continuous

305
in the possessor or his ancestor for the whole statutory period. What

acts (other than cultivation of the estuarine area) would satisfy the

requirements of this doctrine'Where tidal marsh or submerged lands are
involved has not been established. 306

At least theoretically, the State may acquire title by adverse

possession under the "statutory limitations" rule in the same manner as
private persons. -307 The period of posses sion,required by one statute
is ten years, and by a second, forty years, 308 and in each instance

"the possession must be actual, open, notorious, hostile, continuous
and exclusive for the whole statutory period. 11 309 under the ten year

statute, whether the possession is claimed with or without written

instrument is relevant to a determination of the amount of land
adversely held. 310 The forty year statute of limitations in South

Carolina providesihat 11[n]o action shall be commenced in any case" for

land against one in adverse possession under claim of written instrument

unless the claimant was in possession within forty years before the

311
action. The latter has been said to be "a statute of repose, which

will not be allayed'by any personal disabilities, such as infancy, etc. , on

312
the part of the landowner. if Such a disability of the landowner may
affect the acquisition of rights under the ten year statute of limitations. 313

By Constitutional provision the legislature can confirm title to

lands claimed by the State, to individuals or other parties who claim by

314
adverse possession. This provision has been interpreted by the

Attorney General to mean the validation or confirmation of an existing
grant or claim. 315 Opinions of the Attorney General have indicated that

payment of taxes on an area of tidal marsh does not form the basis of a
316
claim sufficient to warrant such confirmation by the legislature.

"Prescription" is recognized as a method of acquiring rights, or,

to use the legal term, an "easement, 11 in land of another (as distinct

from title to land of another) through use. In South Carolina the doctrine

has developed judicially, The State Supreme Court has said that 11[t]o

establish a right by prescription, it is necessary to prove three things:

(1) the continued and uninterrupted use or enjoyment of the right for the

full period of twenty years; (2) the identity of the thing enjoyed; (3) that
the use or enjoyment was adverse, or under claim of right. " 317 Where

it appears that a person has enjoyed the use openly, notoriously,

continuously and uninterruptedly in derogation of another's rights for the

twenty year period, the use will be considered adverse and the burden is
on the other party to rebut this presumption. 318 Use by either express

or implied permission cannot ripen into an easement by prescription.

If the possession is permissive in its inception, it will continue to be so

regarded "until there is a distinct and positive assertion of a right
hostile to the owner. 11319

A prescriptive right to use of water may..be acquired by such'an

adverse use for twenty years, and, it has been held, it is not necessary

to show the amount of water used each year by the riparian to establish
such prescriptive rights. 320 The cases have recognized that the public,

also, may acquire rights by prescription. Use by the public for over

twenty years of a small waterway through the'plaintiff's lands was found
to create a prescriptive right in the public. 321

As With prescription, recognition of rights by "dedication" is

entirely a matter of case law. However, there have apparently been no

cases dealing specifically with,estuarine areas. Generally, dedication

has been.held to be an "intentional appropriation of land, or of an
easement therein, for some public purpose. " 322 Dedication can only
be made to the public, 323 and there must be acceptance by the public
within a reasonable time. 324 There also i-nust be evidence of a clear

intention to dedicate and 11[i]n the absence of an expressed gift, one who

asserts a dedication must show conduct on the part of the landowner

clearly, convincingly and unequivocally indicating his intention to create
a right in the public adversely to him. . . . It325 If the purpose of

326
the dedication i's limited, this restriction will be enforced. However,

if the dedication is general and unrestricted, the fact that property has

been devoted to one public use does not prevent its change to another

327
public use by proper legal authority.

3. Ownership and Use of Certain Natural Resources

Because of its multi- dimensional nature, a variety of natural

resources are to be found in the estuary. Some of these require

separate legal treatment.

By statute there is recognition of the common law rule that the

ownership of fish, game, and wild birds, classified as ferae naturae, is

328
in the State. "Their ownership . . . is in the state in its sovereign

capacity as the representative and for the benefit of all its people in
11329
common. When wild animals or fish are reduced to possession

330
legally, title passes to the private individual involved.

The question of the right of the public, subject to regulation, to

hunt and fish in estuarine areas has arisen on several occasions. An
early case, McCullough v. Wall, 331 declared thatIthere is a common

right belonging to every citizen to fish in navigable or tidal waters. And

in 1924 with the enactment of the Coastal Fisheries Act, estuarine waters

were declared to "continue and remain" a common'for the taking of fish;

an exception from the common was recognized for any area which had

332
been previously lawfully granted. There is also authority for the
proposition that the public has a right to hunt in tidal areas not granted. 333

It may be that the right to these resources in tidal waters is governed by

the rules which control rights in the waters themselves on the assumption

that they determine whether rights in the common have been granted. If

tidal waters are considered to be subject to the same judicially developed

doctrines of riparian rights as apply to other waters, equivalent private

rights would attach to those estuarine areas which are recognized as
having been granted and the resources found there. 334 However, if

rights in tidal waters (other than those exceptions recognized at common

law) are governed by different rules, then one asserting rights to these
resources would have to rely upon these rules. 335

Oysters have been classified as ferae riaturae, though not migra-

tory, and are considered among those resources which are held in
common. 336 However, planted shellfish do not qualify as ferae naturae.

The South Carolina "Coastal Fisheries Act" includes shellfish, mobile

and immobile, in its definition of "fish. 11 By its terms, estuarine areas

remain a common for the taking of shellfish except for those areas

previously lawfully granted, and areas which are leased. Future grant

of oyster beds for private ownership purposes is specifically forbidden,
except .by special legislative enactment. 337

South Carolina has important estuarine mineral resources. Among

these are clay, sand and gravel, heavy minerals, coquina, inarl, 'lime-

338
stone, phosphate deposits, and oil and gas. As a general rule the

339
ownership of minerals follows title, to the land.. South Carolina case

law clearly indicates that the riparian on tidal waters, who does not have

title to foreshore or submerged lands, has no mineral rights in these

340
areas. Accordingly, there is no right to mine in State-owned areas

as a riparian or as a member of the public. Proof of a specific grant. of

estuarine land to the riparian claimant would be needed to establish

mineral rights in these lands, and if the special limitations concerning

private grant. of public lands are applied here-, specific grant of mineral
rights also would be needed. 341

The pattern of statutory control indicates a policy of continued-

state ownership of its mineral. resources. The general statute providing

authority for sale of land owned by the state expressly excepts from this

authority "any property held in trust for a specific purpose by the State

or the property of the State in the phosphate rocks or phosphatic deposits

in the beds of the navigable streams and waters and marshes of the

342
State. Opinions of the Attorney General have interpreted this Act

as preventing the sale by the State Budget and Control Board of lands
such as marshlands and submerged lands held in trust for public uses. 343

D. Statutory Regulation in South Carolina

At this point in the treatment of the law of Georgia some background

material was developed concerning the legal bases for state statutory

controls of the estuarine area. As explained there, the existence of

private "interests" or "ownership" does not prevent state control by

virtue of exercise of its police powers, its power of eminent domain, and

by discharge of its responsibilities under the trust doctrine. At this

point there should be recourse to that discussion which is equally perti-
nent to this consideration of South Carolina law. 344

There is at present no general regulatory legislation providing for
the protection and management of estuarine areas in South Carolina. 345

The recently created South Carolina Water Resources Commission was

empowered to develop a plan for "the maximum beneficial multiple-use
and management of the tidelands and coastal waters of South Carolina. ,346

The Commission's report, released in early 1970, includes extensive

recommendations for conservation and management of South Carolina
tideland. 347 These have not, however, been acted upon by the

Legislature.

The South Carolina Wildlife Resources Department is empowered
to acquire estuarine areas for game reserves 348 and has acquired
several areas of coastal marshland for waterfowl hunting. 349 It also

has jurisdiction, through its Division of Commercial Fisheries, over

all fish in tidal waters. 350

In,addition, there are a number of statutes which directly or

potentially affect estuarine areas. They include statutes giving broad

powers.of acquisition, regulation and development of certain estuarine
351 352
areas. to.the State Ports Authority, the Public Service Authority,

353
certain city port and terminal commissions and to certain munici-
palities for purposes of various "Water-Front Improvement" activitie.s. 354

There are at.least three statutes providing for the draining or filling of

355
tidal swamp as a health measure. Soil and Water, Conservation

Districts have the power to formulate land use regulation for soil and

water conservation which are enforceable, after compliance with certain
formalities. 356 The Low Country Resources Conservation and Develop-

ment Authority, comprising six of the eight "low country" counties in

South Carolina, has power, through land acquisition and waterway
improvement, to conserve and develop nat Iural resources Iof the area. 357

At this juncture in the development of the law of South Carolina

it is apparent that, while there are evidences of planning for compre-

hensive control of the use of the estuarine area, present statutory

control is fragmented and scattered among a number of agencies with

differing, and often 'conflicting powers and objectives.

FOOTNOTES

See E. Odum, Fundamentals of Ecology 352 (3rd'ed. 1971); The
Georgia Coast: Issues and Options for Recreation v (1971) (The Con-
servation Foundation, Washington, D.C.).
2Little research has been conducted into the feasibility of recon-
structing salt marshlands. M. Heath, Jr. , State Programs for State
Estuarine Conservation 4 (Inst. of Gov't Uni@_. -of N. C. 1968)_.
3Address by Eugene P. Odum, Second Sea Grant Confere nce,
Univ. of R.I., 1968.
4The First Annual Report of the Council on Environmental Quality
176 (1970).
5National, Council on Marine Resources and .Engineering Develop-
ment, Marine Science Aff airs --Selecting Priority Programs 47 (4th Ann.
Rep. 1970). Though recreational development may aid preservation of
the estuarine environment, overuse and poorly planned use will adversely
affect conservation efforts. See Hardin, The Tragedy of the Commons,
162 Science 1243 (Dec. 13, 1968).
6Though it'is recognize d that pollution, chiefly resulting in'
chemical alteration, is one of the most destructive factors affecting the
estuarine environment, because it is a part of the larger problem of
water pollution generally, it is not dealt with in this study.
71 Commis'sion on Marine'Science, Engineering and Resources,
Science and Environment IH-39 (1969).
8G. Spinner,' A Plan for the Marine Resources of the Atlantic
Coastal Zone 37 (1969).
9Id. at 53.
10 See Estuaries (G. Lauff ed. 1967).
11E. Pritchard, Estuaries 3 (G. Lauff ed. 1967).

12 E. Odum, supra note 1, a t 352.
13 Tide elevations can be ascertained by use of Coast and Geodetic
Survey bench marks. See 2 A. Shalowitz, Shore and Sea Boundaries 60-
61 (196Z). In ascertaining the tide-elevation range in each state, that is
the range from sea level to the upper estuarine limit, the determinative
factors would be a salinity survey, investigation of types of vegetation
and tidal observation. Using these factors as guidelines the upper
estuarine limit could be arbitrarily designated as all tidally influenced
waters, beds, marshes and marshland within a certain tide-elevation
range. See Georgia's Coastal Marshlands Protection Act of 1970,
Ga. Code Ann. �45-137(b) (Supp. 1970), where tide elevation from "mean
tide level" is used to define "estuarine area". New devices as the A. 0.
Goldberg Refractometer which permits accurate salinity determinations
in the field at low cost and new techniques as those used in infrared
photography to map vegetation, make the gathering of information about
these factors more readily obtainable than was possible in the past. See
Behrens, Use of the, Goldberg Ref ractometer as, a Salinometer for
Biological and Geological Field Work, 23 Jnl. of Marine Research 165
(1965); Lear, Infrared Exploration- -New Light on the Environment,
54 Sat. Rev. 53 (Apr. 3; 1971).
14 H. Caspers, Estuaries 7 (G.Lauff ed. 1967). This latter determi-
nation is not as,important for the legal study of ownership and control
as present legal authority clearly recognized state ownership seaward
from a state's "coast line" out to a certain jurisdictional limit, with the
1953 enactment of the Submerged Lands Act. See text accompanying
notes 84-88 infra. State alienation since 1953 because of increased
awareness of importance of estuarine areas, has been limited.

15
This study does not consider rights in ground waters in estuarine

areas.

16
See Lauer, The Riparian Right As Property in Water Resources
and the Law 133, 1547551 177-78 (1958); Sax, The PublTc Trust Doctrine'
in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L.
Rev. 473', 476 (1970).
17 Z Bracton, On the Laws & Customs of England 39-40 (S. Thorne
transl. 1968); 1 H. Fa-@n__ham, The Law of Waters and Water Rights 165-
66 (1904) [hereinafter cited as Farnham];- Eauer, The Eommon Law
Background of the Riparian Doctrine, 28 Mo. L. Rev, 60, 64-72 (1963).
18 1 Farnham 171; Fraser, Title to the Soil Under Public Waters,
2 Minn. L. Rev. 313, 315 (1918).

19
Hall, On the Sea- shore, as reprinted in Stuart A. Moore, A
History of the Foreshore 668-72 (3rd ed. 1888) [hereinafter cited as
Moore]; 1 Farnham 167-68, 182.
2OMoore 180 et. seq.
2lMoore XL; Stone, Public Rights in Water Uses in R. Clark,
I Waters and Water Rights 191 (1967) [hereinafter cited as Clark];
Harnsberger, Eminent Domain and Water in 4 id. 101-04 (1970); 1
Farnham 167-68, 181-84.
22 See Attorney- General v. Philpott (1631), as reprinted in Moore
Appendix I (which was the first decree in favor of the Crown based on
this doctrine. Fraser, s pra note 18, at 318); Attorney- General v. ,
Burridge, 147 Eng, Rep. 335, 342 (Ex. 1822) ("It is a doctrine of ancient
establishment, that the shore between the high and low-water marks
,belongs prim facie to the King". ) See list of cases adopting this rule in
Moore 651 n. 1; also see Harnsberger, 4 Clark 102.
23 1 Farnham 168-69. It should be noted that neither of these
theories affected title to lands owned by Crown grant or prescription, if
specific grant or usage could be proved. See Hale, De Jure Maris, at
reprinted in Moore 384-92.

241 Farnham 169-70.
25The Crown Lands Act, 1 Anne, c. 7, �5 (1702), 3 Halsbury's
Statutes of England 214 (1929); see Harnsberger, 4 Clark 103 where it
is stated, "in the common law it developed that both the jus publicum,
the public rights of use, and the jus privatum, the private rights of use
and enjoyment, became inalienable on the part of the Crown. The jus
publicum had been inalienable for centuries and the jus privatum became
so by acts of Parliament and by custom.
26Stone, 1 Clark 191.
27Hall, supra note 19, at 669.
28Harnsberger, 4 Clark 103.
29 1 Farnham 110; Stone, 1 Clark 191; Harnsberger, 4 Clark 103;
Fraser, supra note 18, at 327.
30Lauer, supra note 17, at 90.

31 Confusion resulted in the development of the common law of this
period when the term, "navigable", was treated as synony mous with
"tidal". This confusion seems largely traceable to an early case, The
Royal Piscarie of the Banne, 80 Eng. Rep. 540 (K. B. 1604), which
involved a dispute as to fishery rights in part of the tidal river, Banne.
See 2 A. Shalowitz, Shore and Sea Boundaries 518-21 (1962). The court
in the course of its opinion in that case classified rivers as navigable
and non'-navigable but concerned itself principally with "navigable tidal
rivers" and "inland non-navigable rivers" in reaching the conclusion that
the river Banne "as high as the sea flows and reflows is a royal river.
This appears to have led to the inference on the part of some that the
latter were the only types of rivers and to the equating of "navigable"
with tidal waters and "non- navigable with inland waters. However, Lord
Hale's Treatise of 1667 treated both fresh and salt water rivers as
11navigable" under the English law of this period, --"there be other rivers,
as well fresh and salt, that are of common or publick use for carriage of
boats and lighters. 11 Hale, De Jure Maris, as reprinted in Moore 374.
In addition, extensive early authority "that navigable water is not
synonymous with . . . tide water" is referred to in Farnham's treatise.
See, e. g. , 1 Farnham 112-17. Despite these latter authorities the
assumption that navigable waters and tidal waters were interchangeable
terms in English law became embedded in much of early American law.
Responsibility for this is attributed to Chancellor Kent because of his
version of the early law in Palmer v. @@@ 3 Caines 307, 2 Am.
Dec. 270 (N. Y. 1805), and its general acceptance has been attributed to
the popularity of his Commentaries in which he took the same position.
I Farnham 104. A result of this development was the assumption that
the jus publicum character of waters and underlying beds was considered
to be determined not,by their tidal characteristic but by the characteristic
of navigability of the waters involved.

The term "navigability" has posed definitional problems in a number
of contexts and the definition adopted often varies with the character of
the interest involved, e. g. , title purposes, right of use purposes, etc.
In some instances where the definition would determine ownership of
tidal areas, "navigable" has been defined as including all tidal waters
and navigable waters. See Submerged Lands Act, 43 U.S. C. �1301 (a)
(1964). To provide a distinction between the situations where it was
assumed that all tidal waters were navigable and use of the term to mean
capacity for boating, rafting of logs, etc. , the terms "navigable at law"
and "'navigable in fact" were adopted. Harnsberger, 4 Clark 103-08.
32 Hale, De Jure Maris, as reprinted in Moore 374; Harnsberger,
4 Clark 105-08.

33 Z Farnham 1364; Stone, 1 Cl Iark 181-8Z. The status of other
public trust rights which existed at the common law of this period as a
right of passage,. a right in ports, a right to sand, gravel and to seaweed
are discussed in Note, The Public Trust in Tidal Areas: A Sometimes
Submerged Traditional Doctrine, 79 Yale L. J. 762 (1970).
34 2 Farnham 1365.
35 See, e.g., Westy. Baumgartner, cas. nos. 45908-13, --Ga.
App. --(1971) petition for cert. filed, Sup. Ct. of Ga. (Aug. 20, 1971)
(No. Z6795), where court in discussing the public right of fishery in tidal
waters quotes approvingly from Moore 710: 11[wlhether in fact, it was
originally a public grant from the King, or whether it was a reservation
by the people of such right, when they vested the rest of the property in
the sea in him, or whether it@ be one of those natural and necessary
rights which, like the air we breathe, has ever been free and
unquestioned in enjoyment, is immaterial. 11 See Note, The Public Trust
in Tidal Areas: A Sometimes Submerged Traditional Doctrine, 79 Yale
L. J. 762, 769 (1970).
36 1 Farnham ��62-63; see Lauer, supra note 17, at .91-95; see
Ma s and Zobel, Anglo-American Water Law: Who Appropriated the
Riparian Doctrine?, 10 Pu61ic Policy log (1960).
37Riparian is used in this study to mean the upland water bordering
water. The word "riparian" technically is defined as the upland owner
on a stream as opposed to the term I'littoral" which refers to the
proprietor abutting on a sea or lake. See Black's Law Dictionary 1083
(4th ed. 1951). However, since the words are frequently used co-
extensively, for purposes of this study no differentiation by use of this
terminology is made.
38 Sury 1. Pigot 79 Eng. Rep. IZ63 (K. B. 16Z5); see 1 Clark Z88.
393 Blackstone, Commentaries Z16-18 (7th ed. 1775); Lauer,
supra note 17, at 96.
40Brown v. Best, 95 Eng. Rep. 557 (K. B. 1774); see Cox v.
Matthews, 86 Eng. Rep. 159 (K. B. 1673) (Lord Hale by dicta in this
opinion declared that only through defendant's previous use--"used to
turn the stream as he saw cause"--could plaintiff's use, though newly
begun, be defeated. ) While it was difficult to determine what fact
situations would lead to a finding of a right acquired by prescription,
there were adjudications upholding the acquisition of such a right by the
riparian in this manner. The law in this early period was in the process
of transition from a requirement of ancient use (a use which had existed
time'out of mind) to acceptance of prior use as establishing prescriptive
rights.
83

Later, Blackstone in his Commentaries used the term "occupancy"
to describe the prerequisite for recognition of the right. See 2 Blackstone,
supra note 39 at 40Z-03. The meaning of this term has been the subject
of 'Much discussion. Recent writing by legal scholars suggests that the
early English law did not recognize "prior appropriation" as a method of
acquiring rights in waters in the sense that this term has been used in
American law in dealing with this concept. See I Clark 289 n. 25; Lauer,
supra note 17, at 96-99; Maas and Zobel, supra note 36, at 124-30.
41 2 Blackstone, supra note 39, at 261-62; Hale, D e Jure Maris,
as reprinted in Moore 380.
42 1 Farnham �63. It should be noted that because the building of
wharves by riparians was formerly thought of as a public convenience
this activity was usually permitted; however, a wharf into tidal waters
without a license could be regarded as an encroachment upon the sovereign
property. Weber v. *Bd. of State Harbor Comm' rs, 85 U.S. (18 Wall)
57, 65 (1873); 1 Farnham �113; see S. Plager & F. Maloney, Controlling
Waterfront Development 3, 4 (Pub. Adm. Clearing Serv. , Univ. of Fla.,
Studies in Pub. Adm. , No. 30 (1968).
43 The American colonies were considered by England to be lands
claimed by right of occupancy or discovery; accordingly, the colonists
carried with them the law of England as far as it was applicable in their
new situation. See J. Story, Commentaries on the Constitution of the
United States ��152-57 (5th ed. M. Bigelow 1891).
44Charters of Provinces of North America (1766); 1 C. Jones,
The History Of Georgia 87-95 (1883).
45 W. McElreath, A Treatise on the Constitution of Georgia 17
(1912).

.461 Blackstone, supra note 39, at 108.
47 See D. Rice, Estuarine Lands of North Carolina: Legal Aspects
of Ownershi , Use and Control 14-15 (Inst. of Gov't Univ. of N. C. 1968).
48@h@
_ vel v. Bowlby, 152 U.S. 1, 14-15 (1894).
49 Act of November 15, 1778, Watkins & Watkins, Digest of the
Laws of the State of Georgia 231-32 (1800). This Act was to remain in
force until the end of the next legislative session. In 1781 there was a
similar.revival act, Act of August 21, 1781, id. at 239, and in 1783 a
more general revival act, providing that laws passed before December,
1778, which were or. might be expiring and were not repugnant to the
Constitution of the State were to continue in force until repealed. Act of
84

July 30, 1783, id. at 280-82.
50 Act of February 25, 1784, Watkins & Watkins, Digest of the Laws
of th e State of Georgia 289-90 (1800).
51 Young v. Harrison, 6 Ga. 130, 142 (1849).
5Z Johnson v. State, 114 Ga. 790, 40 S. E. 807 (1902).
53 Johnson v. State, 114 Ga. 790, 40 S. E. 807 (1902). There has
been no judicial definition in Georgia of "high-water mark, 11 the term
used in the Johnson case to indicate the boundary of trust property.
Since in addition, the English common law was not clear in its delimi-
tation of the upper tideland boundary (1 A. Shalowitz, supra note 31, at
90-91; see discussion in Teclaff, The Coastal Zone--Control over
Encroachments into the Tidelands, I J. Mar. L. & Com. 241, ?56
(1970)), this tideland boundary delineation is judicially undetermined.
However, with the definition of estuarine area in the recent Coastal
Marshlands Protection Act (Ga. Code Ann. �45-137(b) (Supp. 1970)) in
terms of tidal elevation, the tidal area apparently includes areas both
daily and periodically flowed by the tide. Thus, there would seem to be
legislative determination of a boundary 'Which includes certain periodic
as well as daily tides.
54 Mayor & Aldermen v. State, 4 Ga. 26 (1848). Among the
restraints dealt with in the case is that on the power of the State to
control navigation in light of the paramount federal power in this area,
but this "restraint" on state power is not relevant to the discussion here.
55 Id. at 39-40. See note 66 infra.

56
Id. at 36.

57 Id. at 46.
58 In June, 1777, an Act for opening the Land Office was passed with
the purpose of settling "vacant lands. 11 Act of June 7, 1777, Watkins & .
Watkins, Digest of the Laws of the State of Georgia 203-05 (1800). There
followed a series of acts concerning the land office and the granting of
vacant lands. Act of September 16, 1777, id. at 205-06; Act of January
23, 1780, id. at 232-37; 'Act of February, D83, id. at 258-65; Act of
August 1, T783, id. at 286-87; Act of May 11, 103, Clayton, Laws of
Georgia 1801-1810, at 100-07 (1812). There was, in addition, recog-
nition by colonial and state governments of lawful grants and allotments

of the preceding government. See Act of March 15, 1758, Watkins &
Watkins, Digest of the Laws of the State of Georgia 5.4-56 (1800);
Act of June 7, li-77, Cobb, Digest of the Statute Laws of the State of
Georgia 660-62 (1851).
59 114 Ga. 790, 40 S. E. 807 (1902).
60
The only other early laws discovered dealing specifically with
estuarine areas relate to'oyster rights or regulate the taking of terrapins
and turtles in certain seasons. Act of February 18, 1856, Duncan,
Georgia Laws 1855-56, at 13-14 (1856). The first section of this Act
provides rotection for the adjoining landowner of banks or shore where
he plants and stakes the area.
614 Ga. 26 (1848).
62 �3 of the 1902 Boundaries of Lands on Tide-Waters Act, 1902 Ga.
L. 108 [Ga. Code Ann. �85-1309 (1970)]; Ga. Const. art. I, �VI, 51. The
constitutional provision is worded in terms of "ownership of lands abutting
on tidal water .... 11 Id.

63
�1 of the 1902 Boundaries of Lands on Tide-Waters Act, 1902 Ga.
L. 108 [Ga. Code Ann. �85-1307 (1970)] (If the water is the dividing line,
then the boundary of the owner adjoining. non- navigable tidewater extends
to the center of the channel. Id. ) If the land is considered as adjoining
salt or tidal marsh, this difference in terminology may mean that the
11grant" does not include the tidal marsh. Compare Oemler v. Green,
134 Ga. 198, 6 7 S. E. 433 (1910). with Pre v. Oemler, 120 Ga. 223,
47 S. E. 546 (1904). For discussion of this point of statutory construction,
see Bolton, Legal Ramifications of Various Applications and Proposals
Relative to the Development of Georgia's Coastal Marshes 10 (March,
1970) (unpublished opinion of Georgia Attorney General). But see Note,
Regulation and Ownership of the Marshlands: The Georgia Marshlands
Act, 5 Ga. L. Rev. 563, 575 (1971).
64 It should be noted that for purposes of this Act "navigable
tidewater" is any tidewater or bed where the tide ebbs and flows regu-
larly which in fact is used for purposes of navigation or is capable at
mean low tide of bearing boats loaded with freight in the regular course
of trade. �2 of the 1902 Boundaries of Lands on Tide-Waters Act, 1902
Ga. L. 108 [Ga. Code Ann. �85-1308 (1970)]. These definitions of
navigation are used for purposes of distinguishing tidewaters in which
riparian righ.ts are limited to foreshore areas from those in which "title"
to the bed is considered granted to the riparian.

65
Ga. Code Ann. �85-1309 (1970).

66
See Note, The Public Trust in Tidal Areas: A Sometime Sub-
merged Traditional Doctrine, 79 Yale L. J. 762, 775 (1970); in Mayor &
Aldermen v. State, 4 Ga. 26 (1848), Judge Lumpkin made the statement
that the public right of navigation could be extinguished at common law.
It is clear from a reading of the case that abrogation of the right was not
contemplated but only a contraction necessary for regulation of the
navigation right and "extinguish'.' was mentioned only in the sense that
any regulation prevents some use. The Court found the regulation in
question, which pertained to wharves, to be in aid of navigation. In
addition, the right of "wharfing out" is generally considered one of the
alienable rights when it does not conflict with, but rather effectuates the
purpose of the public trust concept. See 1 Farnham �113.
67Confirmation of these public rights might well be considered as
comprehending public uses such as fishing, pleasure boating, wading,
swimming, fowling and hunting. These public uses have been recognized
in other jurisdictions. See Lamprey v. Metcalf, 52 Minn. 181, 199,
53 N. W. 1139, 1143 (1893) (where comparable rights wer'e considered to
be an extension of the navigation easement); Gaudet, Water Recreation---
Public Use of "Private" Waters, 52 Calif. L. Rev. 171 (1964). On the
other hand, retention of these rights in the'public severely limits the
private right of use. For instance ' such uses as dredging and filling,
or mining for phosphate, readily could be interpreted as preventing the
free use of these tidewaters for passage and the navigation specified.
See 'Wilbour v. Gallagher, 77 Wash. 2d 306, 462 P. Zd 232 (1969), cert.
denied, 400 U.S. 878 (1970), where defendant riparian was ordered to
remove fill from foreshore area (area seasonally inundated) because it
interfered with public rights in navigable waters. The court in that case
stated:

Thus, in the situation of a naturally varying water level, the
respective rights of the public and of the owners of the
periodically submerged lands are dependent upon the level
of the water. As the level rises, the rights of the public to
use the water increase since the area of water increases;
correspondingly, the rights of the landowners decrease
since they cannot use their property in such a manner as to
interfere with the expanded public rights. As the level and
the area of the water decreases, the rights of the public
decrease . . . . Id. at 315, 462 P. Zd at 238.

When these interests initially were recognized at common law, navigation
and fishing were usually involved and as a consequence the law developed

around express recognition of those uses. However, the fact that,
historically, certain uses were protected should not prevent the term
from comprehending other public uses where these easements or uses
are grounded in the doctrine of public trust interests. See Stone, I
Clark 201-02.
6 8114 Ga. 790, 40 S. E. 807 (1902).
692 A. Saye, Records of Constitutional Commission 1943-44, at
36 0 -61 (1946).
70 Prey v. Oemler, 120 Ga. 223, 47 S. E. 546 (1904); Rauers v.
Persons, 144 Ga. 23, 86 S. E. Z44 (1915). Though Aiken v. Wallace,
134 Ga. 873, 68 S. E. 937 (1910), also concerned rights ranted under
this 1902 Act, its determination that title to a foreshore area was not
divested by the Act involved a controversy between private parties,
where there wag no claim of public right.

71
Prey v. Oemler, 120 Ga. 223, 224, 47 S. E. 546 (1904).

72 -
Rauers v. Persons, 144 Ga. 23, 25, 86 S.E. 244, 245 (1915).

73
Dicta in a recent decision of the Georgia Court of Appeals has
indicated that since there was a Constitutional ratification of the 1902
Act it is unnecessary to determine "whether the State's right in the land
and the waters was a proprietary interest or was in trust for the benefit
of the public, which may involve different rights in the State. 11*West v.
Baumgartner . cas. nos. 45908-13, - -Ga. App. - - (1971) petition for Cert.
filed, Sup. Ct. of Ga. (Aug. 20, 1971) (No. 26795). This would seem to
.be precisely the question which needs judicial determination. See Bolton,
Legal Ramifications of Various Applications and Proposals Relative to
the Dev 'elopment of Georgia's Coastal Marshes (March, 1970)
(unpublished opinion of Georgia Attorney General). But see Abbott, Some
Legal Problems Involved in Saving Georgia's Marshlands, 7 Ga. St. B. J.
27 (1970). Constitutional ratification of the statute was considered
necessary because the Constitution of Georgia prohibited grants or
donations to private individuals by the Legislature. Ga. Const. art. VII,
�XVI, 51 (1877); now Ga. Const. art. VII, �1, 5H. Relevant in construing
a constitutional provision is the principle that recourse may be had to
the proceedings which drafted the instrument. The records of the
Constitutional Commission which drafted the 1945 Constitution indicate
that this property was considered vested in the public, and the 1902 Act
which undertook to extend riparian ownership abutting tidal water was
considered in violation of the constitutional provision preventing the

granting of state property. 2 A. Saye, Records of Constitutional
Commission 1943-44, at 360-63 (1946). There are various principles
which are resorted to, to determine whether a statute in conflict with
the constitution may be validated by a constitutional provision subse-
quently adopted. The general rule is that where such unconstitutional
statutes are "ratified" by a constitutional amendment, or by provision
expressly or impliedly ratifying or confirming them, the action is
ineffective if validation would divest a vested right. See 16 Am. Jur. 2d
Constitutional Law �180. That vested public rights were thought to be
involved is apparent from a reading of the decision of the Supreme Court
of Georgia handed down in 1902, in Johnson v. State, 114 Ga. 790,
40 S. E. 807 (1902). That case considered the question of ownership of
the foreshore and determined that the common law rule of foreshore
ownership in the sovereign, absent "special title or grant, 11 still existed
in the State of Georgia, thus making this area between high and low-water
mark where special grant or title was unproven, public property. If
this reasoning is accepted and the general public is viewed as a property
holder, a claim may be madeon constitutional grounds that such a taking
of land belonging to the public is comparable to a wrongful taking of
private property. As a treatise writer recently has stated, "no state
has adhered to the view that the public interest [in tidal areas] may be
alienated in fee to private persons without regard to the utility and need
of the property for navigation, and without assurance that the property
will be used to promote at least a quasi-public purpose such as railroad
transportation or municipal use. 11 Stone, 1 Clark 196. Thus, if this
tidal area of waters and lands were public trust property, alienation in
fee would be questionable. it should be recognized that a constitutional
restraint which in effect bars a gift or transfer for private purposes of
public lands or waters in a particular resource category is different from
a claim of constitutional prohibition, preventing resource reallocation--
that is a change from one public use to another public use. See Sax, The
Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention, 68 Mich. L. Rev. 473, 481 n. 32,(1970).
7. 4See discussion in text at notes 60-61 supra.
75 West v. Baumgartner, cas. nos. 45908-13, --Ga. App. .--(1971),
' TO -rc -
petition ert. filed, Sup. Ct. of Ga. (Aug. 20, 1971) (No. 26795).
76 Id. It should be noted that since the 1902 Tidelands Act did not
purport to deal with bed ownership or overlying waters of the "navigable"
tidewater (see Ga. Code Ann. �85-1309 (1970)), rights in these
11navigable" tidal waters remain in sovereign ownership as at common
law, regardless of construction of the 1902 Act.

77 See text accompanying notes 36-42 supra. In Georgia, the
riparian's right to gain by prescription a larger right of use than his
natural right would not be applicable to tidal waters because prescriptive
rights cannot run against the state. See note 139 infra.

78
A developed body of "riparian" water law was adopted judicially
in Georgia in 1884 (see R. Kates, Georgia Water Law 24 (1969)), and the
Georgia 'courts have continued to recognize this right to certain uses by
the upland owner as deriving from ownership of the banks even though
there is also authority to the effect that such rights are dependent upon
ownership of the underlying soil. See Ga. Code Ann. �85-1301 (1970);
Kates, supra, at 30; Rome Ry. & Light Co. v. Loeb, 141 Ga. 202, 207,
80 S. E. 785, 787 (1914); Moulton v. Buntin McWilliams Post No. 658,
213 Ga. 859, 861, 102 S. E. 2d 593, 595 (1958). Authority for the latter
proposition is found in an 1860 code section (Ga. Code �2206 (1860),
now Ga. Code Ann. �85-1301 (1970)) which ties the right to use the water
in question to ownership of the underlying soil and delifnits the rights of
this "owner" in that he may not divert nor may he use it so as to interfere
with the enjoyment of the next owner, thus recognizing a common right of
use with other riparians. These court decisions and statutes were
developed in terms of waters above the ebb and flow of the tide. See
Hendrick v. Cook, 4 Ga. 241, 255 (1848); Jones v. Water Lot Co.,
18 Ga. 539 (1855).
79See Johnson v. State, 114 Ga. 790, 40 S. E. 807 (1 90Z); West v.
Baumgartner, cas. nos. 45908-13, --Ga. App.,--(1971) petition for cert.
filed, Sup. Ct. of Ga. (Aug. ZO, 1971) (No. 26795). Ga. Code Ann.
��85-1303, -1305 (1970) were specifically declared by the Johnson and
West courts to be inapplicable to tidewaters. In addition, in view of the
strict construction of law in derogation of the common law codifications
of judicially developed rules pertaining to non-tidal waters (Ga. Code
Ann. ��85-1301 (1970), 105-1407 (1968) would be inapplicable to tidal
waters.

80See note 77 supra. There is separate treatment of riparian
rights in natural resources found in tidal waters. See text accompanying
notes 147-67 infra.
81 Pollard's Lesse e v. Hagan, 44 U. S. (3 How. ) 2 12 (1845). . See
list of cases cited for this proposition in United States v. Louisiana,
363 U.S. 1, 16 n. 12 (1960).
82United States v. Louisiana, 363 U.S. 1, 16 (1 96o).
83 UnitedStates v. California, 332 U.S. 19 (1947).

84 43 U.S. C. ��1301-1315 (1964).
85 Id. ��1311-1315.
86Jd. �1301.
871d. ��1301(c), 1311-1315; Ga. Code Ann. �15-101 (Supp. 1970).
88 See United States v. Louisiana, 363 U.S. 1, 77 (1960), where
the Court stated "except as granted by Congress, the States do not own
the lands beneath the marginal seas. 11 However, in pending litigation
the State of Georgia, along with other Atlantic coast states, is claiming
rights in the marginal sea beyond the three mile limit as successors to
the grantees of the British Crown. This claim is made independently
of the Submerged Lands Act and is made to the extent of seaward limit
of United States' national jurisdiction. See Lewis, A Capsule History
and the Present Status of the Tidelands Controversy, 3 Nat. Res. Law.
620, 629 (1970). The litigation involved concerns the granting of the
United States' motion for leave to file a bill of complaint against the
Atlantic coast states which would seek. recognition of exclusive Federal
sovereign rights in this area. United States v. Maine, 395 U.S. 955
(1969). The case has been referred to a Special Master for further
proceedings. United States v. Maine, 398 U. S. 947 (1970).
89 43 U.S. C. �1301(c) (1964).
90 1 A. Shalowitz, supra note 31, at 155.
91 There exist three different types of tides along the coastal states.
The Atlantic Coast has two almost equal daily low and high tides. The
Gulf Coast usually has only one daily high and low tide. So for these two
shorelines the ascertaining of ordinary low-water mark would usually
create little problem. But along the Pacific shore there are two high
waters and two low waters per day with a "high degree of inequality
between successive highs and successive lows.." Comment, Fluctuating
Shorelines and Tidal Boundaries: An Unresolved Problem, 6 San Diego
L. Rev. 447, 451 (1969).
9243 U.S.C. �1301(c) (1964).
93United States v. California, 381 U.S. 139 (1965); United States v.
Louisiana, 394 U.S. 11 (1969).

94Apr. 29, 1958, [19641 15 U. S. T. 1607, T. 1. A. S. No. 5639. 'it
is interesting to note that the Court in adopting Convention definitions for
purposes of interpreting the Submerged Lands Act was adopting
definitions written 5 years after passage of the latter.
95 United States v. Louisiana, 394 U.S. 11, 34 (1969).
96United States v. Louisiana, 389 U.S. 155, 156 (1967).
97Ga. Code Ann. 15-101 (Supp. 1970).
98See United States v. Louisiana, 398 U. S. 155 (1967).
99United States v. Louisiana, 394 U.S. 1, 5 (1969); a'ccord
UnitedStates v. Louisiana, 394 U.S. 11 (1969). (It had been argued. in
this case that because the.Louisiana coast is constantly changing whereas
the California coast is rock-bound and relatively straight, different
rules, should apply. The Court stated, "that if the inconvenience of an
ambulatory coastline proves to be substantial, 11 the remedy is to be .
sought either in the Congress or in agreement between the parties. Id.
at 34. )

100
United States v. California, 382 U.S. 448, 449 (1969).
10ISee I A. Shalowitz, supra note 31, at 165-68.

102See United States v. Louisiana, 394 U.S. 11, 72-73 (1969).
103394 U.S. 11, 65 (1969).

1041d. at 65 n. 85, quoting from a memorandum of April 18, 1961,
excerpteTin I A. Shalowitz, supra note 31, at 161 n. 125.
105United States v. Louisiana, 394 U.S 11, 66 (196 9).
106 Ga. Code Ann. @15-101 (Supp. 1970).

107See 1 A. Shalowitz, supra note 31, at 172-73, 230-35.
108Convention of the Territorial Sea and the Contiguous Zone, Apr.
299 1958, [1964] art. 12, para. 1, 15 U.S. T. 1607, T. I. A. S. No. 5639.

1091959 Ga. L. 378.

11 OWright, Jurisdiction in the Tidelands, @2 Tul. L. Rev. 175, 176
(1958).
92

I F. Cas. 926, 927 (No. 397) (C. C. D. Ma s s. 181 Z).
liz See language of the Supreme Court in United States v. California,
332 U.S. 19, 36 (1947): "As previously stated, this Court has followed
and reasserted the basic doctrine of the Pollard case many times. And
in doing so it has used language strong enough to indicate that the Court
then believed that states not only owned tidelands and soil under navigable
inland waters, but also owned soils under all navigable waters within
their territorial jurisdiction, whether inland or not.

113
United States v. California, 332 U.S. 19 (1947); accord United
States v. Louisiana, 33 9 U. S. 6 99 P 950), United States v. Texas.
33 9 U.S. 707 (1950).
114 43 U.S. C. �1311(a) (1,964).
115 Id. �1301(e).
116Paramount rights of the federal government "for the consti-
tutional purposes of commerce, navigation, national defense, and
international affairs" were not affected by the Submerged Lands Act.
United States v. Rands, 389 U.S. 121, lZ7 (1967).
117 1 A. Shalowitz, supra note 31, at 279.
118 See Black's Law Dictionary 637 (4th ed. 1951).
119 See 2 Blackstone, supra note 39, at 261-62.

120
Ga. Code Ann. �85-1307 (1970).
121 Id.
122 See R. Kates, supra note 79, at 12.
123 Ga. Code Ann. �85-1309 (1970).
124 See Ga. Code Ann. ��83-115 to -117 (1970); see id. �45 146(f)
(Supp. 1970) (exemption of certain wharves from permit requirements).
125Though the 1902 Tidelands Act provided for an extension of
riparian rights'adjoining tidewaters, since there was no specific grant of
a right to wharf out into tidal waters, the extent of this right or privilege
would remain as at common law. See West v. Baumgartner, cas. nos.
45908-13, --Ga. App. --(1971), petition for cert. filed, Sup. Ct. of Ga.
(Aug. 20, 1971) (No. 26795).
93

126
- See supra note 42.

127
Rights in. estuarine lands and waters are dealt with as "real
property" rights though it is also
recognized that rights to'w.ate*rs are
usufructuary in character. Where it is recognized that the state owning
these lands and waters originally.as an attribute of its sovereignty had
a right to alienate such rights, these doctrines may be of particular,
relevance in confirming public rights to these lands and waters based on
public use.

128
See 6 R. Powell, The Law of Real Property I OZ6, at 762. 12 13
(1970).
lZ9 Id.'at 7'6Z. 13.
130 See id. T934, at 361-62.

131
Ga. Code Ann. ��85-401 to -402 (1970). This doctrine of title
by prescription, as to land is taken from the Roman law. , "Early English
common law recognized prescription only as to incorporeal rights.
A. Powell, Actions at Law Respecting Titles to Land �317, at 423 (1911).
132 Ga. Code Ann. �85-409 (1970); also see id. �85-1401.
1331d. �85-410.

134
See id. �85-406;,R. Powell, supra note .128, 51020, at 750
(1970).

135
See A. Powell & S. Mitchell, Actions for Land ��3Z4-33 (rev.
ed. 1946).
136 Ga. Code Ann. �85-407 (1970). For distinction between "claim
of right" and written evidence of title, see A. Powell & S. Mitchell,
supra note 135, ��294-95.

137
Ga. Code Ann. ��85-403 to -404 (1970); Fitzpatrick v. Massee-
Felton Lumber Co. , 188 Ga. 80,'85, 3 S. E. 2d 91, 94 (193.9). "Actual
possession, . .* , is a thing evidenced by physical insignia, by the acts
and conditions which attend corporeal use or occupany. " A. Powell &
S. Mitchell, 'supra note 135, �306 at 362. Occasiona I occupancy is not
sufficient to @Onstitute actual possession, nor is the posting of signs
forbidding trespassing, or fro'rn time to time the driving away hunters on
swamp,land not capable of cultivation. Fitzpatrick v. Massee-Felton
Lumber Go. 188 Ga. 89, 86, 3 S. E-2d, 91, 94-95 (1939).

138
House v. Palmer, 9 Ga. 497 -(1851); Dyal v. McLean, 18,8 Ga.
229, 3 S. E. 2d.571 (1939).; A. Powell & S. Mitchell, supra note 135,1
�353.
139Ga.. Code Ann. �85-409 (1970). The acquisition of water rights
through use is part of the law of prescriptive easements in Georgia.
See.Watkins v. Pel?perton Cotton Mills, 162 Ga., 371, 374-76, 134 S. E.
69, 70-71 (1926). However, since in Georgia there has been recent
confirmation of basic state ownership of tidal waters (West v. Baumgartner,
ca.se. nos. 45908-13, --Ga. App. --(1971) petition for cert. filed Sup. Ct.
of Ga. (Aug. 20, 1971),(No. 26795)), and since also in Georgia there is
no prescriptive right against the State, rights in estuarine waters based
on use is relevant to the present study only as Jt relates to acquisition of
other prescriptive rights through use.

140
Seaboard Air Line Ry. y. Sikes, 4 Ga. App. 7, 6'0 S. E-. 8 6 8
(1908); Mayor and Aldermen v. Standard Fuel Supply Co. , 140 Ga. 353,
78 S. E. 906 (1 913). It should be noted that a prescriptive right in the
public and dedication to the public may in many cases be established by
the same facts.

141
Warlick v. Rome Loan & 'Finance Co. 194 Ga. 419, Z2 S. E. 2d
61 (1@42); Hoga v. Cowart, 182 Ga. 145, @l 84 S. E. 884 (1936).
14ZSeaboard Air Line Ry. v. Sikes, 4 Ga. App. 7, 6 0 S. E. 86 8
(1908); see Whelchel v. Gainesville & Dahlonega Elec. Ry. .116 Ga. 43.1,
42 S. E. 776 (1902); A. Powell & S. Mitchell, supra note 92, �325 at
386 n. 30.. Contra, City of Atlanta V., Georgia R.,R. & Banking Co.
148 Ga., 635, 98 S,. E. 83 (1919).
143 Ga. Code Ann. �85-410 (1970); Savannah Beach v. Drane,
205 Ga. 14, 52 S. E. 2d 439 (1949). yde v. Chappell 194 Ga. 536,
H
22 S. E. 2d 313 (1942).
144 Hydey. Chappell 19 14 Ga. 536, 22 S. E. 2d 313 (1942);
Shirle- v. Morgan 170 Ga. 324, 152, S. E. 831 (1930).

145
Hillside Cotton Mills v. Ellis, 23 Ga. App. 45, 97 S. E. 459
(1918) (express dedication together with use by public constitute dedi-
cation even though period of use is less than seven years).

146
See Mayor and Aldermen v. Standard Fuel Supply Co. 140 Ga.
353, 78 S E. 906 (1913) (wharf property on a navigable stream was held
to be "a place of quasi-public character, to which the public are invited"
so that twenty-year use by the public did not amount to dedication by the

owner); Seaboard Air Line Ry. v. Sikes, 4 Ga. App. 7, 60 S. E. 868
(1908) (non-navigable, stream subject to public servitude by long use);
Daniels v. Intendant and Wardens, 55 Ga. 609 (1876) (bridge considered
susceptible to dedication).

147-
2 Farnham 1361; see Z Blackstone, supra note 39, at 14.

148
West v. Baumgartner, cas. nos. 45908-13, --Ga. App.--(1971),
petition for cert. filed Sup. Ct. of Ga. (Aug. ZO, 1971) (No. 26795);
2 Farnham 1362-63.
149 2 Farnham 1374.
150�1A of the 1968 Amendment to the State Game Iand Fish
Commission Act, 1968 Ga. L. 497, 501 [Ga. Code Ann. �45-101.1
(Supp. 1970)].
151�2 id. at. 502 [G .a. Code Ann. �45-102 (Supp. 1970)].
15ZGa. Code Ann. �85-1309 (1910).
153West v. Baumgartner, .cas. nos. 45908- .13, --Ga. App. --(1971),
petition for cert. filed Sup. Ct. of Ga. (Aug. ZO 1971) (No. 26795).
(There is specific statement in the case of the public's right of fishery in
tidal waters at common law; the public's right to hunt in this area is
included by implication.

1541d.

155@�66 and 88 of the 1955 State Garne and Fish Commission Act,
1955 Ga. L. 483, 520, 526 [Ga. Code Ann. �45-528, -709 (1957)].
156�90 id. at 526-27 [Ga. Code Ann. �45-711 (1957)].
15 71d. at 527 [Ga. Code Ann. .�45-711 (1957)].

15 81d.
159See Ga. Code Ann.* � �85-1307, -1309 (1970).
l6oSee Ga. Code Ann. �45-907 (1957).

161
See Ga. Code Ann. ��45-907,-910,-912 (1957).
162See Rice, supra note 46, at 41.

163
58 C. J. S. Mines and Minerals �132 (1948); see Z Blackstone,
supra note 3 9, at 18.
164 1 Farnham �143.
165
�3 of the 1945 Mineral Leasing Commission Act, 1945 Ga. L.
352, 353-54 [Ga. Code Ann. �91-120 (1963)]. A Georgia Act enacted in
1885 concerning rights of discoverers of phosphate deposits would seem
to be in conflict with this later 1945 Act. See 1885 Act Encouraging
Search for Phosphate Deposits, 1884-85 Ga. L. 125 [Ga. Code Ann.
�43-401 (1957)]. The State Mineral Leasing Commission has authority
to negotiate contracts for mineral rights to all State owned lands and
bottoms. �2 of the 1945 Mineral Leasing Commission Act, 1945 Ga. L.
352, 353 [Ga. Code Ann. �91-119 (1963)]. The 1885 Act provides that
any person discovering phosphate deposits in the navigable streams or
waters of the State or on the banks or margins of public land, upon
notice of his discovery to the Secretary of State, is entitled to a ten-year
exclusive right to mine this deposit. �1 of the 1885 Act Encouraging
Search for Phosphate Deposits, 1884-85 Ga. L. l25-z6 [Ga. Code Ann.
�43,-401 (1957)]. This statute in so far as it concerns State owned lands
and bottoms, would seem to be repealed by implication by the 1945
Mineral Leasing Commission Act.
166 See Ga. Code Ann. ��85-1307, -1309 (1970).
167Research has revealed two doctrines in this area- -a general
principle which contemplates inclusion of mineral rights among those
rights which follow the ownership of land and a special doctrine that only
specific grant of rights to minerals in public areas (here tidal areas)
would operate to convey such rights. See text accompanying notes 163-64,
supra.
168See 1 Heyman, Powers: Regulation- Legal Questions 48-49
(Report Prepared for San Francisco Bay Conservation and Development
Commission, vql. 1, 1968).
169 Such statutory regulations could be worded in terms of mainte-
nance of certain water characteristics as degree of salinity, saturation,
circulation. Address by Mark J. Hershman, Annual Meeting of Coastal
States Organization, July 30, 1971.
170Judicial use of the term "reasonableness" to indicate consti-
tutionality does not provide insight as to the decision in any particular
case but merely indicates the terminology which is used in this process.
The question is "to what extent do constitutions, as interpreted by

courts, shield private property from government control. 1 Heyman,
supra note 168, at 10. A particular state court's interpretation of its
role in this "balancing process" is vital in determining what regulations
can be made under the police power concept. Id.

171
See CommIr of Natural Resources v. Volpe & Co. 349 Mass.
.104, 206 N. E. 2d 666 (1965); see cases cited in 1 Heyman, supra note
16 8, at 81 n. 9.
172See Michelman, Property, Utility, and Fairness: Comments
on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L.
Rev. 1165 (1967); Sax, Takings and the Police Power, 74 Yale L. J. 36
(1964); Halperin, Conservation, Policy, and the Role of Counsel,
23 Maine L. Rev. 119 (1971); Wilkes, Constitutional Delimmas Posed
by State Policies against Marine Pollution- The Maine Example,
23 Maine L. Rev. 143 (1971); Power, More about Oysters Than You
Wanted to Know, 30 Md. L. Rev. 199 (1970); Note, Regulation and
Ownership of the Marshlands: The Georgia Marshlands Act, 5 Ga. L.
Rev. 563 (1971).
173See Morreale, Federal Power in Western Waters: The Navi-
gation Power and the Rule of No Compensation, 3 Nat. Res' J. 1, 28-30
(1963) ("Such interference is not a taking, for the private right had from
its creation been impressed with the public right. 11 Id. at 30. ); Note,
Regulation and Ownership of the Marshlands: The Georgia Marshlands
Act, 5 Ga. L. Rev. 563, 578-79 (1971).
174 Coastal Marshlands Protection Act.of 1970, Ga. Code Ann.
��45-136. to -147 (Supp. 1970).
175 Id. �45-140(a).

176
Id. �45-140(e). Recentlya permit was denied for filling of
marsh'land for industrial purposes. Atlanta Journal, July 17, 1971, at
3B, col. 1 (home ed.
177 Ga. Code Ann. �45-146 (Supp. 1970).
178Ga. Code Ann. �43-1301 (Supp. 1970), amending 1967 Ga. L.
12, 13. An excellent recent study for the Conservation Foundation
provides needed "ecological guidelines" for the planning of recreational
development of the Georgia Coast. The Georgia Coast: Issues and
Options for Recreation (1971) (The Conservation Foundation, Washington,
D. C.

179 See Ga. Code Ann. �40-2901, -2917, 69-1201 (Supp. 1970).
1801d. Ga. Code Ann. ��45-114 (1957), 43-124 (Supp. 1970),
43-606a (Supp. 1970), 98-204, -205 (1968); 1947 Ga. L. 1480, 1482-85;
Ga. Code Ann. � �69-1501, -1504 (Supp. 1970).

181
. See Ga. Code Ann. �45-140(a) (Supp. 1970).
182 See id. �69-1501(e).
183 See Ga. Code Ann. ��98-205 (1968), 45-146(b) (Supp. 1970).
An Act, enacted in 1971 to amend the Georgia Ports Authority Act
authorizes the Governor to convey to that Authority approximately sixty-
eight acres of marshland for port development purposes. 1971 Ga. L.
910.
184D. Ramsay, History of South Carolina 14-31 (1858). An
earlier grant in 1630 to Sir Robert Heath covering all land south of
Virginia was declared void because of failure to make settlement and
fulfill its conditions. E. McCrady, The History of South Carolina under
the Proprietary Government 1670-1719, 54-56, 70 (1897).
185 1 Statutes at Large of South Carolina 22, 24 (Cooper ed. 1836).
186 Id. 31, 34.
187 2 Id. 401, 413-14, �V (Cooper ed. 1837).
188 D. Ramsay, supra note 184, at 53-69. Concerning the transition
to the status of a royal province, it is interesting to note that although a
royal governor was appointed by the Crown in 1720 and the responsi-
bilities of royal government were assumed, title to the soil remained in
the Lords Proprietors under the grant from Cliarles II until agreement
was made with Georgia JI to purchase the interest and title of seven of
the proprietors. Sir John Carteret retained his rights to one-eighth
part. E. McCrady, The History of South Carolina under the Royal
Government 1719-1776, at 4-5, 32 (1901). This agreement was con-
firmed by An Act for Establishing an Agreement with Seven of the Lords
Proprietors of Carolina, 2 Geo. 2, c. 34 (1729), 1 Statutes at Large of
South Carolina 60 (Cooper ed. 1836). Sir John Carteret's interest in
South Carolina was released by an indenture in 1744.. E. McCrady, The
History of South Carolina under the Proprietary Government 1670-.1719,
at 679-80 (1897).
189 E. McCrady, The Histor of South Carolina Under the Royal
Government 1719-1776, at 25 (1901).
99

190 D. Ramsey, supra note 184, at 53.
I. 9.11 Blackstone, supra note 39, at 108.
192 Shivelv v. Bowlb . 15Z U.S. 1, 14-15 (1894); State v. Pinckney,
22 S.C. 484, 502 (1885).
193See S. C. Const. art. XXIX (1776); id. art. XXXIV (1778); id.
art. VII (1790).,
194See, e. g. , State v. Charleston Bridge Co. , 113 S. C. 116,
101 S. E. 657 (1919); O1Ha_g`en'v. Fraternal Aid Union, 144 S. C. 84,
141 S. E. 893 (1928).

195
1 Statutes at Larg of South Carolina 22, 27, 31, 37 (Cooper ed.
1836).
196 3 id. 289, 290t �I (Cooper ed. 1838).
197 S.C. Code Ann. ��57-5Z to -53 (196Z).
198 Id. �57-57 (1962). This Code section was originally part of
an Act o f 1787, 5 Statutes at Large of South Carolina 38, 40 �VIII
(Cooper ed. 1839).
199 See 4 Statutes 2,t Larg -of South Carolina 590 (Cooper ed. 1838).
200 See id. at 593,' �XV.
201 7 Statutes at Larg of South Carolina, 151, �IV (McCord ed.
1840). The statute provides:

That all vacant land not legally vested in individuals, in
the harbor of Charleston, covered by water, be, and the
same is hereby, vested in the city of Charleston for public
purposes, but not to be so used or disposed of as to obstruct
ox injure the navigation of said harbor. Id.

It should be noted that included in this Act is a section limiting the use
of such privately held water lots. These water lots could not be used
"in any manner" that was "injurious to the health, comfort or
convenience of the citizens. Id. �V.
202 Id. at 627, �1.

100

203 See, e. g. , Act of 1787, 5 Statutes at Larg of South Carolina
24 (Cooper ed. 1839), Act of 1788, 5 Statutes at Larg of South Carolina
57 (Cooper ed. 1839); Act of 1789, 5 Statutes at Larg of South Carolina
IZ9 (Cooper ed. 1839). In 1815 this early type of tax was replaced by an
Act which reclassified some categories. 6 Statutes at Larg of South
Carolina 7 �1 (McCord ed. 1839).
Z04 7 Statutes at LaUe of South Carolina 60, 61-62, ��111, V
(McCord ed. 1840); id. 65, 69-70, �XX.
205 Id. 65, 70, �XXI.
2065id. 38, 39, �IV (Cooper ed. 1839).
Z071d. �vI.
208 7 id. 65, 69-70, ��XX, XXI (McCord ed. 1840).
209 5 id. 38, 39, � �IV, VI (Cooper ed. 1839); see, e.g. Shepard's
Point Land Co. v. Atl. Hotel, 134 N. C. 397, 46 S. E. 748 (1904))-
Atl. & N. C. R. R. v. Way, 17Z, N. C. 774, 90 S. E. 937 (1916).
ZlOSee 7'Statutes at Larg af South Carolina 60, 61-62, ��111, V
(McCord ed. 1840); id. 65, 69-70, ��XX, XXI; id. 151, �V.
211 S. C. Const. art. XXIX (1776); id. art. XXXIV (1778); id. art.
@@-h Carolina Supreme Court
VII (1790). It should be noted that the So t
has declared that the Constitutions of 1776 and 1778 are simply Acts of
the General Assembly of South, Carolina which that body could alter at
will since they were not ratified by the public. Thomas v. Daniel,
2 McCord 354 (S.C. 1823).
21Z S.C. Const. art. 111, �19, art. 1, �40 (1868).
213 Id. art. 111, �31 (1895).
Z14State v. S. C. Phosphate Co. (alias, Oak Point Mines), 22 S. C.
593, 600:@-0-1(1' 875). The position of this case as binding precedent has
been questioned both because it is a Circuit Court opinion and because
there was some irregularity in reporting the case. Clineburg &
Krahmer, The Law Pertaining to Estuarine Lands in South Carolina,
23 S. C. L. Rev. 7, 19-20 (1971).
215State v. S. C. Phosphate Co. , 22 S. C. 593, 600-601 (1875).

101

216 Id.
7-
217 Id. at 6oi -oz.

21822 S. C. - 510, 84 (1884).
219 Id. at 83.

2201d. at 75-77.

221
Id. at 79-80. The confusion found in the common law as to the
meaning @Tfthe term "tidal" and the, assumption that prevailed for some
time that it was synonymous with "navigable, 11 has been developed
earlier in this monograph. See note 31 supra; Clineburg and Krahmer,
The Law Pertaining to Estuarine Lands in South Carolina, 23 S. C. L.
Rev. 7, 17-18 (1971).
222 State v. Pac. Guano Co. , 22 S. C. 50, 80 (1884).
22322 S.C. 484 (1884).
224 Id. at 507.
22542 S.C. 138, 19 S.C. 963 (1894). Chisolm v. Caines, 67 F.
285 (C. C. D. S. C. 1894), rejected the Farmers Mining test of navigable
capacity, finding that to be "navigable, 11 a stream must be accessible to
the public and must have a public terminus at each end. This opinion
of -a lower federal court would not be controlling in the determination by
South Ca@rolinals courts of its substantive law.
Z'6Heyward .v. Farmers Mining Go , 42 S. C. 13 8, 157, 19 S. E.
963, 973 (1894).

2Z71d.

22 81llinois Central R. R. v. Illinois, 146 U. S. 3 87, 454@ (I 89Z)
quoted in Heyward v. Farmers Mining Co 42 S. C. 138, 157 19-S.E.
963, 973 (1894).
Z2960 S. C. 559, 39'S. E. 188 (1901).

Z3 OId. at 56 7, 39 S. E. at. 191.

102

Z31 Cape Romaine Land & Imp. Co. v. Ga. -Car. Canning Co.,
148 S. C. 428, 146 S. E. 434 (1928). Much has been written about this
case. See Horlbeck, Ttitles to Marshlands in South Carolina, 14 S. C.
L. Q. Z88 (196Z); Logan & Williams, Tidelands in South Carolina: A
Study in the Law of Real Property, 15 S. C. L. Rev. 657 (1963); Clineburg
& Krahmer, The Law Pertaining to Estuarine Lands in South Carolina,
Z3 S. C. L. Rev. 7 (1971).
Z32 Cape Romaine Land & Imp. Go. v. Ga. -Car. Canning Co.,
148 S.C. 4Z8, 434, 146 S. E. 434, 436 (1928).
233 Id.

234
Rice Hope Plantation v. S. C. Pub. Serv. Auth., Z16 S. C. 500,
530, 59 S. E. 2d 132, 145 (1950). A more recent case concerning owner-
ship of foreshore areas of tidal navigable streams, Lane v. McEachern,
251 S. C. Z72, 162 S. E. 2d 174 (1968), does not clarify the circumstances
under which private ownership of the foreshore area would be recog-
nized. The grant from George H under consideration in this case,
specified that a tidal river was the boundary and the other lines of the
property were those appearing on a plat. The State stipulated that a
specified swamp -was included within the boundaries as described in the
plat in question. This stipulation, the court ruled, had the effect of
including the foreshore area within the tract granted by the King, and
consequently the court did not find it necessary to consider the rule of
construction contended for by the State, that a grant having tidal
boundaries if it is to give title to low-water mark, must have specific
words providing for that low-water mark as the boundary.
235AIston v. Limehouse, 60 S. C. 559, 566, 39 S. E. 188, 190
(1901); Cape Romaine Land & Imp. Co. v. Ga. -Car. Canning Co.,
148 S.C. 4Z8, 435, 146 S. E. 434, 437 (1928). The special rules
governing alienation of navigable tidal beds are set forth in thefarmers
Mining case. See text accompanying notes 226-28 supra.
. Z36 See Cape Romaine Land & Imp. Co v. Ga. -Car. Canning Co.
148 S. C. 428, 444-45, 146 S. E. 434, 440 (1928) (dissenting opinion).
237 ZZ S.C. 50, 79 (1884).
238 42 S.C. 138, 156-57, 19 S.E. 963, 973 (1894).
239 Alston v. Limehouse, 60 S. C. 559, 39 S. E. 188 (1901).

103

240
Cape Romaine Land & Imp. Co v. Ga. -Car. Canning Co.,
148 S.C. 428, 434-35, 146 S. E. 434, 436-37 (1928).
241Gadsden v. West Shore inv. Co. , 99 S. C. 172, 82 S. E. 1052
(l 914) (grant from King George II was stipulated).
242Nathans v. Steinmeyer, 57 S.C. 386, 35 S. E. 733'(1900)
(defendant interposed, as a defense to an action to foreclose a mortgage
on real estate, partial failure of consideration due to paramount out-
standing title in the City).
243 West End Dev. Co. v. Thomas, 92 S.C. 229, 75 S. E. 450
(1912).

Z447 Statutes at Large of South Carolina. 87, 88-89, �V (McCord
ed. 1840).
245West End Dev. Co. v. Thomas, 92 S.C. 229, 234, 75 S.E.
450, 452 (1912).
246 123 S.C. 272, 115 S. E. 596 (1923). -
2477 Statutes at Large of Sou Ith Carolina 97, 98-99, ��IV-V
(McCord ed. 1840).
248Haesloop v. City Council, 123 S. C. 272, 278, 115 S. E. 596,
598 (1923).
249 Id. at. 2 8Z, 115 S. E. at 6 00.

250
S.C. 390, 393, 55 S.E.Zd 344, 345 (1949).
251 Id. at 401, 55 S. E. at 349
252 123 S.C. 272, 278, 115 S. E. 596, 598 (1923).
2537 Statutes at Large of South Carolina 87, 88-89, �V (McCord
ed. 1840).
254 Id. at 97, 99, �V.

255 Act of Dec. 1836, 7 Statutes at Large'of South Carolina 151,
�IV (McCord ed. 1840)', now codified as S. C. Code Ann. �47-1541
(1962); Act of March, 1930, 36 Statutes at *Large of South Carolina 1270,
�1 (1930), now codified as S. C. Code Ann. �47-1542 (196Z); Act of Feb.
1911, 27 Statutes at Large of South Carolina 315, 316, �1 (1911); Act
of March, 1930, 36 Statutes at Large of South Carolina 1111, 1112, �1
(1930).
104

256
The upland boundary of this tidal area and so of trust area has
been judicially defined in South Carolina as "high-water mark, 11 that
"'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, I and not the point reached at new or full
moon nor when there, is an intervening disturbance such as a storm or
earthquake. 11 Cape Romaine Land & Imp. Go. v. Ga. -Car. Canning Co.
(148 S. C. 436-37, 146 S. E. 437); for similar statutory definition see
47 Statutes at Large of South Carolina 787, �l(c) (1951).
25 - 7See supra note 227.
258 33 Statutes at Large of South Carolina 1016, 1017, �1 (1924),
now codified as S. C. Code Ann. �28-754 (1962).
259 See [1956 -1957] S.C. Atty Gen. Ann. Rep. 291. 'The Attorney
General concludes that "the marsh lands, under the law as it now stands,
are not subject to sale by the Budget and Control Board and probably not
to general sale by the Legislature. 11 Id. at Z97.
260See 56 Statutes at Large of South Carolina 1074 (1969). That
portion of the tidelands granted which was not used by the City for street
or parking purposes was to be leased "in a manner to retain and protect
the public interest therein. 11 Id. , �2.
26133 Statutes at Large of South Carolina 1016, 1017, �1 (1924),
now codified as S. C. Code Ann. �28-7,54 (1962).
262 S.C. Code Ann. �28-75Z(4) (1962).
2631d. �28-811; see [1963-1964] S.C. Attly Gen. Ann. Rep. 36.
264See text accompanying notes 27, 36-42.
265 Nolte, The Riparian Rights Doctrine in South Carolina, 21
S.C. L. Rev. 757, 758-59 (1969).
266White v. Whitney Mfg. Co. , 60 S. C. 254, 38 S. E. 456 (1901);
see U. S. v. 531.13 Acres of Land, 244 F. Supp. 895 (W. D. S. C. 1965),
revId and remanded on other grounds, 366 F. 2d 915 (4th Cir. 1966).
267White v. Whitney Mfg. Co. , 60 S. C. 254, 265-69, 38 S. E. 456,
460-61 (1901); see Note, The Riparian Rights Doctrine in South Carolina,
21 S. C. L. Rev. 757, 762-64 (1969).

105

268 Jones v. Seaboard Air Line Ry. Co., 6 7 S.C. 181, 45 S. E. 188
(1903).
269 See Wheeler v., Wheeler, 111 S. C. 8 7, 96 S. E. '714 (1918).
270 S.C. Code Ann. �70-1 (196@).

271
Act of Dec. 1853, 12 Statutes at Larg of South Carolina 305,
�1 (1853); see Hey-ward v. Farmers Mining Co. , 42 S. C. 138, 19 S. E.
963 (1894); Alston v. Limehouse, 60 S. C. 559, 39 S. E. 188 (1901.).
272 42 S. C. 138, 151, 19 S. E. 963, 971 (1894); cf. Alston V.
Limehouse, 60 S. C. 55.9, 39 S. E. 188 (1901).
273See.Coakley.l. Tidewater Const. Corp. , 194 S. C. .284,'
9 S. E. 2d 724 (1940); Nuckolls v.' Great A & P Tea Co. , 192 S. C. 156,
5 S. E. 2d 862 (1939).
274See, e. g. ,S.C. Code Ann. �70-411,-471,-491 (196Z); see
also Hill, Limitation on Diversion from the Watershed: Riparian
Roadblock to Beneficial Use, 23 S. C. L Rev. 43, 59-61 (1971).
27543 U.S.C. �1312 (1964).
.276 Id. � 1,3 01 (c).
277 1 A. Shalowitz, Shore and Sea Boundaries 155 (1962).
278 See notes 93-96 supra, and accompanying. text.

279
S6e text accompanying notes 99-105, 107-108, supra.,

280
56 Statutes at Large of.South Carolina 2051, 2492 (1970).
1
281 Id. It should be noted that in the amendment adopted April 28,
1970, the qualifying section of the amendment conditions effectiveness on
Congressional or State r.atification. Id. 2492 �2.

282
See note 88 supra. South Carolina is one of the Atlantic Coast
states claiming in pending litigation rights in the marginal sea beyond the
three mile limit independently of the Submerged Lands Act. Lewis, A
Capsule History and the Present Status of the Tidela:'nds Controversy,
3 Nat. Res. Law. 620, 629 (1970).

io6

283
The demarcation of this coast line" is of importance to
conservationists since state ownership is assured below this "coast line."
as of the 1953 date.
284 Special legislation affecting such alienation would n.eed to
comply with the requirements set forth in the Farmers Mining case.
See text accompanying note 256 supra.
Z85See text accompanying notes 110-113 supra.
Z86See notes 115-116 supra, and accompanying text.
287 See S. C. Code Ann. �28-754 (1962).
Z88S,ee 2 Blackstone,' supra,note 39, at 261-62.
Z89136 S. C. 5Z5, 134 S. E. 497 (19Z6).
290S. C. Code Ann. �51-293.10 (1962).
2918 Rich. 301' 64 Am. Dec. 755 (S. C. 1855).
Z92[1966-1967] S. C. Attty Gen. Ann. Rep. 32.
293See 2 Blackstone, supra note 39, at 261.

Z94
[1966-1967] S.C. Attly'Gen. Ann. Rep. 32.

295
See, e. g. , Stone, I Clark Z73.'
296 See S. C. Code Ann. ��70-163 (1962), 54-431 (Supp. 1970).

Z97
See D. Means, South Carolina La-kes and Ponds in C. 'Randall
and D. Means, 'Legal Aspects of Water Use and Control in South
Carolina 21 (1970); see @71-so State v. Young 30 S. C. 399, 9 S. E. 355(1889).
298 See note 42 supra, and accompanying text.
299[1956-19571 S. C. Att'y Gen. Ann. Rep. Z60.
300 6 R. Powell, The Law of Real Property 51012, at 709 (1970).
301Z2 S.C. 50 (1884).
30Z Id. at 84.

,107

303
Cape Romaine Land & Imp. Co. v. Ga. -Car. Canning Co.,
148 S. C. 42 8, 43 8, 146 S. E. 434, 43 8 (192 8); State v. Pac. Guano Co.,
22 S. C. 50, 85 (1884).

304
S.C. Code Ann. �10-121 (1962).
,305Haithcock v. Haithcock, 123 S.C. 61, 115 S. E. (1923);
see Logan & Williams, Tidelands in South Carolina: A Study in the
Law of Real Property, 15 S. C. L. Rev. 657, 676 (1963).
306 See Lynah v. United .States, 107 F. 121 (C. C. D. S. C. 1901),
aff Id, 188 U. S. 445 (1903), where rice cultivation was considered a
sufficient act to constitute ownership of foreshore area. See also
Barker v. Deignan, 25 S. C. 252 (1886), where floating rafts and lumber
and stacking same to ground under water was considered insufficient to
indicate adverse continuous possession of water lot.
307See Intendant and Wardens v. Charleston & W. C. Ry. Co. ,
136 S. C. 5251 134 S. E. 497 (1926); 6 R. Powell, The Law of Real
Property, 51020, at 750-52.
308 See S. C. Code Ann. ��10-2421 to -2425, -lZ9 (1962
309Mullis v. Winchester, 237 S. C. 487, 491, 118 S. E. 2d 61, 63
(1961).
310 S.C. Code Ann. � �10-2422 to-2425 (1962); see Note, Con-
structive Adverse Possession under Color of Title in South Carolina,
10 S.C. L. Q. 279 (1958); Barker v. Deignan, 25 S.C. 252 (1886) (an
action for trespass and damages to plaintiff's land wherein defendant
claimed ownership of a Charleston water lot on the basis of adverse
possession and the Court declared that since defendant presented no
color of title, the extent of his, claim was necessarily limited to the area
actually occupied.
311 S.C. Code Ann. �10-IZ9 (1962).
312 Note, Effect of Disability of Lan .downer with.Respect to the
Acquisition of Adverse Rights by Another by Statutes of Limitations,
Presumption of a Grant, and Prescriptive Right in South Carolina,
10 S.C. L. Q. Z9Z, 302 (1958).

313See id. at 297-301.

108

314 S.C. Const. art. 3, �31.
311[1958-1959] S. C. Attly Gen. Ann. Rep. 150, 153.
316 Id.; [1958-1959] S.C. Attly Gen. Ann. Rep. 154. It should be
noted that the legislature had in the past confirmed tideland grants to
individuals claiming under adverse possession based upon payment of
taxes. See, e.g. , 50 Statutes at Large of South Carolina 1032 (1957);
49 id. 856 (1955).

317
Willia son v. Abbott, 107 S. C. 397, 400, 93 S. E. 15-16
(1917).
31 81d. at 400, 93 S. E. at 16; Jordan v. Lang, 22 S. C. 159 (1885).
319 Williamson v. Abbott, 107 S.C. 397, 400,.93 S. E. 15, 16
(1917).
32OJordan'v. Lang, 22 S.C. 159 (1885).
321 Heyward v. Chisolm, 11 Rich. 253 (S.C. 1858).
322 Derby Heights, Inc v. Gantt Water and Sewer Dist. , 237 S. C.
144, 149, 116 S. E. Zd 13, 16 (1960).
323 Safety Bldg. and Loan Co. v. Lyles, 131 S. C. 542, 128 S. C.
724 (1925).
324 Chafee v. City of Aiken, 57 S. C. 507, 35 S. E. 800 (19 00).
325Derby Heights, Inc. v. Gantt Water and Sewer Dist. , 237 S. C.
144, 150, 116 S. E. 2d 13, 16 (1960); accord, Town,of Estill v. Clarke,
179 S. C. 359, 362, 184 S. E. 89, 90 (1936).
326Grad v. City of Greenville, 129 S. C. 89, IZ3 S.. E. 494 (1924).

3Z7
Knoerr v. Crews, 246 S.C. 174, 143 S. E. 2d 120 (1965).
328 S.C. Code Ann. �28-3 (1962).
32 9[l 967-1968] S. C. Attly Gen. Ann. Rep. 305.
3 3 Ojd.
3314 Rich. 68, 86-87 (S.C. 1851).
109

332S. C. code Ann. �28-754 (1962).
333[1961-1962]@'S'..C. Attly Gen. -Ann. Rep. 205.
334 See text accompanying notes 264-69, 285-87 supra.
335See text accompanying notes 270-73 s upra.
336D. Rice, Estuarine Lands of North Carolina: Lega AIspects of
Ownership, Use and Control 39 (Inst. of Gov't Univ. of N. C. 1968).
337 S.C. Code Ann. �Z8-791 (1962).
338 South Carolina Water Resources Commission, South Carolina
Tidelands Report III (2d rev. printing 1970).

339
As pointed out in the Georgia section of this report, there is
authority for an exception to the general rule. See note 164 supra.
340 State'v. Pinckney 22 S. C. 484'(1884); Heyward v. Farmers
Mining Co. , 42 S. C. 138, 19 S. E. 963 (1894).
34lSee note 164 supra.

342
. S. C. Code Ann. �1 -793 (1962). This statute was originally
enacted in 1870. 14 Statutes at Larg of South Carolina 388, �2 (1870).
343 [1965-1966] S. C. Attly Gen. Ann.'Rep. 9; [1956-19571
S.C. Att'y Gen. Ann. Rep. 291.
344 See discussion accompanying notes 168-73 supra.
345Bills concerning tidelands are currently pending before the
South Carolina legislature. See South Carolina H. 1045 (1971);
South Carolina S. 221 (1971).
346 South Carolina Water Resources Commission, South Carolina
Tidelands Report 1 (Zd rev. printing 1970); S. C. Code Ann. �70-22
(Supp. 1970). While originally designated South Carolina Water
Resources Committee, a 1969 Amendment changed "Committee" to
"Commission. 11 56 Statutes at Large of South Carolina 72 (1969).
347See, e. g. , South Carolina Water Resources' Commission,
South Carolina Tidelands Report 4-7 (2d rev. printing 1970).

110

348 S. C. Code Ann. �Z8-107 (196Z).
349 Ludwigson, Managing the Environment in the Coastal Zone,
Environment Rep. --Monograph 3, at 1Z (1970).
350 S. C. Code Ann. �Z8-159 (1962).
351 Id. ��54-1, -11 to -15, -17, -51 to -53.
352 Id. ��59-1, -3, -5.
353 1 d. �q54-101.
354 Id. ��59-561 to -564.
355 Id. ��18-101 to -110, -201 to -333, -401 to -638.
356 Id. ��63-141 to -153 (Supp. 1970).
357 Id. ��63-501 to -505,
111

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