History teachers may enjoy this story.
In a court case involving South Carolina tidelands tracts issued 300 years ago via King’s grants, an appeals court ruled that clear and convincing evidence is not necessarily required when it is both unavailable and a “preponderance of the evidence” can be sufficient as burden of proof.
Confused? Think about how King Charles II and his Lords Proprietors may feel.
We will break down the case, but first, let’s hear from the South Carolina Court of Appeals in an opinion filed July 3, 2024, in East Cherry Grove Co., LLC v. State of South Carolina.
“None of the foregoing tidelands cases expressly sets forth a standard requiring clear and convincing evidence. The reviewing courts affirmed the trial court’s rulings when the record contained evidence to support its finding as to whether the party seeking to establish title rebutted the State’s presumption of title. Here, the circuit court applied the presumption and determined, based on a preponderance of the evidence, that the Grants and accompanying plats Respondents presented contained sufficient detail to establish Respondents' ownership of the tidelands. We hold the circuit court applied the correct analysis by requiring Respondents to provide sufficient evidence to overcome the State’s presumption of title and did not err by failing to require Respondents to establish ownership by clear and convincing evidence.”
Lessons Learned from South Carolina Tidelands Dispute
Disputes over ownership of tidelands can be complex, particularly when they involve King’s grants and sovereign grants that date back three centuries. The Court of Appeals has at least shed some light to clear up what can be complex issues.
A challenger to the State of South Carolina’s presumption of title to tidelands need only rebut that presumption by the preponderance of the evidence (50% plus 1). Clear and convincing evidence, a higher standard between the traditional civil preponderance of the evidence standard and the criminal beyond a reasonable doubt standard, is not necessary.
Evidence such as historical documents, deeds, maps, original land grants, and any government records that can establish a claim to the property – may suffice as a burden of proof.
South Carolina Squabble Over King’s Grants
On one side of the chess board are East Cherry Grove Co., LLC, and Ray & Nixon, LLC, which own two respective parcels of real property consisting of tidelands in North Myrtle Beach, issued to the families of the respective landowners via King’s and sovereign grants in the 18th century.
History tidbit: in the 1700’s, King Charles II granted Carolina (now North and South Carolinas) to eight Lords Proprietors, authorized to govern and distribute land.
South Carolina resident Matt Leonhard decided to build a dock over tidelands adjacent to his property, so he applied to the Department of Health and Environmental Control (DHEC) for the necessary permit. East Cherry Grove and Ray & Nixon balked, claiming the dock overlapped their tracts. They sued South Carolina Department of Health and Environmental Control, The State of South Carolina, and Matt Leonhard – the other side of the chess board.
The Horry County Court of Common Pleas ruled in favor of East Cherry Grove and Ray & Nixon, deciding that the plaintiffs met their burden of proof by a “preponderance of the evidence.” East Cherry Grove and Ray & Nixon were the owners in fee simple of the East Cherry Grove Tract and Ray & Nixon Tract, respectively.
The State filed a motion to reconsider which the court denied. The State appealed.
Breaking Down the Court of Appeals Opinion
The Court of Appeals affirmed as modified in part and reversed in part. But for the critical part, it was upheld that a “preponderance of the evidence” can be sufficient as the burden of proof and clear and convincing evidence is not required.
While the State contended a clear and convincing burden of proof was required to defeat its presumption of title to tidelands, the Court of Appeals disagreed holding:
“[I]t is well settled that the State comes into court with a presumption of title, and, if an individual is to prevail, he must recover upon the strength of his own title, of which he must make proof. To rebut the State’s presumptive title, a claimant must show (1) its predecessor in title possessed a valid grant, and (2) the grant’s language was sufficient to convey land below the high-water mark.”
The Court of Appeals agreed with the State that the circuit court misapplied the law of the case doctrine. In doing so, the Court confirmed that the law of the case doctrine applies to subsequent proceedings in the same case. “[T]he doctrine of law of the case is just that — the law of the case in which it was made, not the law of future cases.”
Lastly, the appeals court confirmed an old point of the law. “The State asserts the circuit court should have specified that the navigable waterways are public highways subject to the State’s control as opposed to the more general ‘defendant’s’ control. Because Respondents concede this point, we clarify the navigable waterways contained within these tracts remain public highways subject to the State’s control.” See S.C. Const. art. XIV, § 4 (“All navigable waters shall forever remain public highways free to the citizens of the State and the United States. …”)
We expect the State to petition the South Carolina Supreme Court to grant Certiorari.
For more information on the South Carolina appeals court case, read the opinion -
East Cherry Grove Co., LLC, and Ray & Nixon, LLC v. State of South Carolina, South Carolina Department of Health and Environmental Conrtol, and Matt Leonhard
About Our Author
Taylor Stanley is a member of the Adams and Reese Litigation Practice Group. Serving as Counsel in the firm’s Columbia, South Carolina office, Taylor represents corporate clients in commercial litigation matters and business disputes across a wide array of practice areas, including construction, real estate, title defect, mergers and acquisitions, trade secret misappropriation, professional negligence, corporate governance, shareholder disputes, and creditor/debtor rights. Taylor is admitted to practice in South Carolina, North Carolina, the U.S. Court of Appeals for the Fourth Circuit, and the U.S. Supreme Court.