Title To Marsh Islands Clarified

The South Carolina Supreme Court has clarified title issues concerning what may be thousands of islands along the South Carolina coast which are "situate within marshland." Estate of Tenney v. S.C Dept. of Health and Envtl. Control, No. 26965 (Apr. 25, 2011). In this 2011 case, the South Carolina Supreme Court considered again a principle it had initially stated in two prior cases, Coburg, Inc. v. Lesser, 309 S.C. 252, 422 S.E.2d 96 (1992) and Coburg Dairy, Inc. v. Lesser, 318 S.C. 510, 458 S.E.2d 547 (1995) in which the Court's decision had extended the "public trust" doctrine to islands in the marsh (called "hammocks" by the Court and often referred to as "hummocks" by residents) but above the mean high water mark. In the 2011 case, the Court expressly overruled the "specific principle" from the Coburg cases that "ownership of islands situate within marshland follows ownership of the marshland." 309 S.C. at 253, 422 S.E.2d at 97. The Court considered several means by which it might have distinguished the 2011 case from the Coburg principle but ultimately decided that the Coburg principle had gone too far by extending to areas above the mean high water mark the State's claim to tidally influenced lands, reasoning "the proposition that the State is the presumed owner of land that remains above the high water mark is at odds with coastal property jurisprudence that predated Coburg, and expands the public trust doctrine beyond its historic bounds."

Despite its clarification that the State of South Carolina has no ownership claim based on the public trust doctrine to land located above the mean high water mark, the Court was careful to place current and future claimants of islands in the marsh on notice that their use of such islands may be substantially restricted or even prevented when the Court said "DHEC and other agencies of this State have the regulatory authority to prevent or limit the development of our State's pristine coastal areas, and our opinion today leaves them at liberty to continue those efforts. Current and potential marsh island owners should be keenly aware of this regulatory risk." The Court also reminded students of its decisions of the distinction between the property rights of landowners who bound on waterways that are not influenced by the tide (riparian property rights) and the rights of owners of land bounded by waters where the tide ebbs and flows (littoral property rights). (See Lowcountry Open Land Trust v. State of South Carolina, 347 S.C. 96, 552 S.E.2d 778 (2001).)