State v. Pinckney

In these cases there was a petition for a rehearing, upon which the following order was passed :

Per Curiam.

We have carefully considered this petition for a rehearing of the above stated cases. As we understand it, the application is based on tw*o grounds.

First, for the reason as supposed that the court made a mistake in holding that “all the marshes in question are below high-water mark, while the testimony is that a large portion of the marshes are not covered by the ordinary or daily tides.” This court did not undertake to decide how much of the marshes lie below high-water mark, but simply to announce the common law *511 rule as to the rights of riparian proprietors bounding on tidal navigable streams, and to hold that so much-of the marshes as lie below that line (whatever it may be) could not pass by the certificate of tax sale which called for tidal navigable streams as boundaries; or, as stated in the decree, “excluding all the marsh lying below that line and subject to the daily ebb and flow of the tide,” &c.

Second. That it was á mistake in the court to assume that the Circuit judge (Wallace) found, as a matter of fact, that the marshes were “vácant” at the time of the tax sale in 1863. There was no mistake. As we understand, Judge Wallace did hold that the marshes (with the exception of the portion covered by the grants to Fripp) were “vacant” even down to 1877, and in 1879. In the case of The State v. C. O. Pinckney, Jr., he said: “Windsor, Pengelly, and Freland, all testify that the salt marshes were vacant in 1877. White testifies that Davis, defendant’s grantor, refused to pay for rock dug in the marshes in 1879.” A finding that the marshes were “vacant” in 1877 or 1879 involved necessarily a finding that they were vacant up to that time, including of course 1863. If vacant in 1877, they must have been vacant in 1863. Land is never again vacant after the title has once passed out of the state. In the case of William B. Davis, Judge Wallace says expressly: “The tax sale certificate does not convey this marsh for the reasons stated in the decree in the case of The State v. Pinckney, Jr., above referred to. It is also in proof that the marshes have not been occupied or held adversely, and were therefore ‘vacant’ prior to 1863. It is therefore adjudged that the State of South Carolina is the ’owner and is entitled to recover all the marsh land described in paragraph 47 of the information,” &c.

The petition is refused. 1