Protecting Land for the Common Good: The Public Trust Doctrine in South Carolina
“The underlying premise of the Public Trust Doctrine is that some things are considered too important to society to be owned by one person.”
This is what the South Carolina Supreme Court said in its decision Sierra Club v Kiawah Resort Assocs., 1995 and it’s a concise summary of the Public Trust Doctrine (PTD) concept. It’s an interesting topic because when it comes to the law, the courts must balance the interests of an individual owner versus the public good.
The Public Trust Doctrine
The PTD has its roots in ancient Roman and Byzantine law. It was included in the Magna Carta and became part of the common law in the US as our nation developed. The US Supreme Court first upheld the doctrine in a case in 1842.
In the Sierra Club decision, the court goes on to say, “Traditionally, these things have included natural resources such as air, water (including waterborne activities such as navigation and fishing), and land (including but not limited to seabed and riverbed soils). Under this Doctrine, everyone has the inalienable right to breathe clean air; to drink safe water; to fish and sail, and recreate upon the high seas, territorial seas and navigable waters; as well as to land on the seashores and riverbanks.”
PTD in South Carolina
To safeguard the public’s interest in natural resources and access to them, a sovereign or government entity holds certain property in trust for the public. In South Carolina, that means land with things like shoreline, tideland areas, and navigable waterways. “The public trust doctrine provides that lands below the high water mark are presumptively owned by the State and held in trust for the benefit of the public,” said the South Carolina Court of Appeals in its decision Hoyler v. The State of South Carolina, 2019.
This concept has many practical ramifications. For instance, it means that the public has access to the beach, because a beachfront property owner does not own the land between the mean high and low tide water marks and therefore does not own the beach. Similarly, the public cannot be stopped from kayaking navigable waters, even if that means kayaking through what someone considers to be “their” backyard.
However simple PTD sounds in principle, in reality it can be quite complicated, as issues must weigh individual property rights versus the public good. A recent example comes from May 2019, when Governor McMaster vetoed a bill that would have allowed some beachfront property owners in Georgetown County to rebuild a seawall. Doing so would violate a ban on seawalls that’s been in place since 1988. While the seawall would protect the property owners’ houses, it would also accelerate erosion of the beach, which is clearly not in the public interest. (And in some cases, such seawalls also cut off public access to the beach.)
Another reason PTD can be complex is because in some instances, a sovereign or government entity has lawfully given an individual rights to land that would otherwise be held in trust for the public. This was the central issue in Hoyler v. The State of South Carolina, which the South Carolina Court of Appeals heard in 2019.
Hoyler v. The State of South Carolina and the Public Trust Doctrine
The case is rather convoluted, and you can read the decision here, but here’s the short version:
In 2006, Merry Land Properties, LLC, bought two tracts of land in the Town of Port Royal, near Parris Island, with plans to develop it that included a marina. One tract had access to Beaufort River via deep waters, the other via tidelands. Within those tidelands was an area of 95.27 acres that was disputed by H. Marshall Hoyler, who filed action against the State of South Carolina to get a declaration that he owned the disputed marsh.
Hoyler said he had a deed from 1891 given to his predecessor in title, J. M. Crofut, by Governor Benjamin R. Tillman for 95.27 acres of marshland on the Beaufort River. The State of South Carolina argued that it, in fact, “held prima facie title to the disputed marsh in trust for the public and Hoyler lacked the power to exclude the public from the marsh.”
The issue went before a master who conducted a hearing and found that the governor did have the power to convey the land to Crofut, as it “was a valid exercise of the State’s authority under the law as it existed at the time of the conveyance.” However, since the property could not be accurately located based on the available documentation, Hoyler was not entitled to the declaration he sought stating that he held the title to that marshland.
Hoyler in the Court of Appeals
Hoyler appealed and the South Carolina Court of Appeals heard the case in March 2019. Hoyler argued that the disputed land was indeed identifiable based on the plat from the deed, but the State of South Carolina argued that it wasn’t, as the plat was illegible in places making the precise location of the disputed 95.27 acres unclear.
The Court of Appeals noted that “Because the law, as a zealous guardian of the public interest, bestows presumptive ownership of tidelands on the State for the benefit of the public, any deed from the State purporting to convey tidelands to a private individual must be strictly construed against the grantee and in favor of the public.” Therefore it’s up to the individual to bear the burden of proof to show that the grant intended to include the tidelands, and the documentation must be precise enough to be certain.
Ultimately the court sided with the State of South Carolina in this case, saying it was not clear exactly which land was referred to in the plats, and therefore while the validity of the conveyance was not in question, the land itself was. “While a property description need not be perfect, it must allow one examining it to identify the property conveyed; otherwise, the conveyance is void.”
Public Good Versus Private Interests
While South Carolina courts do place the burden of proof on the individual, if the individual can meet that burden of proof then it has in the past upheld an individual’s right to land that was granted to them. In previous case where that has happened, the documentation of the grant has been so accurate and precise in its language to the point where there is no question about the intention of the grantor over the location and contents of the land grant.
Still, South Carolina courts do require a high level of proof in order to give individuals ownership and access to lands that would otherwise be held in trust by the state, as it recognizes the importance of protecting and preserving waterways and tidelands for the public good and for the future.
Strategic Advice for Commercial Real Estate Deals
In the case above, Merry Land Properties got caught up in a complicated situation because it discovered too late that some land it purchased was claimed by another party. Things like this happen all too often in the world of commercial real estate, which is why it’s important to have an experienced attorney working with you.
Gem McDowell has worked on large land development and commercial real estate projects in South Carolina for over 25 years and has closed over $1 billion in deals. He and his associates at the Gem McDowell Law Group in Mt. Pleasant can help you if you’re contemplating buying, selling, or developing land in South Carolina and need smart strategic advice. Schedule your free consultation by calling 843-284-1021 today.
Timing Is Everything: When Powers of Attorney Aren’t Bulletproof
In the previous blog, we looked at the basics of financial and medical powers of attorney. Today, we’re going to look at how these documents are not as straightforward as you think, courtesy of a case heard by the South Carolina Court of Appeals, Stott v White Oak Manor, Inc. (read it here).
Facts and Background
Jolly P Davis (Decedent) was taken to Spartanburg Regional Medical Center on December 22, 2012 by EMS due to dropping oxygen saturation levels. Less than two weeks later, he was transferred to White Oak Manor for rehabilitation and care. Upon admission, White Oak found that he possessed “intact mental functioning” and was able to correctly answer questions about his age, location, the current date, and so on. Over the next couple weeks, he was transferred between the two facilities several times until he died on January 16, 2013.
Leading up to this, Decedent’s niece, Hilda Stott, was named as the agent in a durable POA for finance and a durable HPOA for Decedent in documents executed May 11, 2012. (A durable POA remains in effect even when the principal is incapacitated, so the agent can make decisions when the principal is, for example, in a coma or suffering from dementia.)
When Decedent was admitted to White Oak, Stott signed papers on her uncle’s behalf, including an Arbitration Agreement. The durable POA for finance was recorded on January 8, 2013, six days after Decedent was admitted to White Oak. The durable HPOA was never recorded. (As a reminder, South Carolina law requires that a POA, but not an HPOA, be recorded with the county in order for an agent to exercise their powers after the principal becomes incapacitated.)
On December 16, 2015, Stott filed a wrongful death suit against White Oak, alleging Decedent was “overmedicated and dehydrated,” which led to his death. White Oak filed a motion to compel arbitration based on the Arbitration Agreement that Stott had signed.
The Circuit Court’s Findings
The case when to the circuit court. Stott argued that even though she signed the Arbitration Agreement on behalf of Decedent, she actually did not have the authority to do so under the durable POA for finance and therefore was not bound to the Arbitration Agreement.
White Oak argued but the court ultimately sided with Stott, finding that (1) Decedent had full capacity to sign the Arbitration Agreement at the time of admission, (2) the durable POA for finance did not become effective until after the Arbitration Agreement was signed because it hadn’t been recorded in time, and (3) the durable HPOA also didn’t authorize Stott to sign the Arbitration Agreement because Decedent was competent when it was signed.
White Oak appealed.
The Effectiveness of the Durable POA for Finance
Here’s where things get rather complicated. Stott signed the Arbitration Agreement on January 2, 2013, but didn’t record the durable POA for finance until January 8, 2013. She argued that she didn’t have the authority to sign the Arbitration Agreement on Decedent’s behalf on the 2nd. But, White Oak noted, the agreement contained an opt-out clause giving the signer a limited time period in which to opt out of the agreement, after which the agreement “will remain and continue in full force and effect.” (Emphasis added by the SC Court of Appeals.) White Oak argued that because the agreement didn’t become binding until the opt-out period expired on January 19, 2013, Stott did, in fact, have the authority to sign it because by then, the durable POA for finance had been recorded – 11 days earlier.
The Court of Appeals disagreed, citing the language used in the opt-out clause. It was stated so that the party would “no longer” be bound by it, and after the opt-out window closed, it would “remain and continue” – language indicating that the agreement was in effect the entire time during the opt-out window. Therefore, because the durable POA for finance had not been recorded by the time she signed the Arbitration Agreement, Stott did not have the power to sign it on Decedent’s behalf.
The Effectiveness of the Durable HPOA
The other issue the Court looked at was whether Stott had the authority to sign the Arbitration Agreement based on a valid durable HPOA. White Oak argued that she did; the Court disagreed.
That’s because Decedent’s durable HPOA contained a provision entitled “EFFECTIVE DATE AND DURABILITY” that stated it would become “effective upon, and only during, any period of mental incompetence.” In other words, it was a springing POA, discussed in the previous blog, which only becomes effective once the principal becomes incapacitated.
White Oak’s own evaluation of Decedent found him to be mentally intact with full capacity upon admission and at the time Stott signed the Arbitration Agreement. Therefore, the Court concludes, the durable HPOA was also not effective to authorize Stott to sign the agreement on her uncle’s behalf.
In short, the Arbitration Agreement is invalid and White Oak cannot compel arbitration of Stott’s claims of wrongful death and survival actions.
Confusion and Lack of Clarity
In this case, the powers of attorney were executed well in advance of any need for them. They were both clear in their intentions, and the durable HPOA even used the language provided by statute. Neither POA was disputed. Decedent’s mental capacity was not called into question by White Oak Manor. And still, confusion occurred regarding whether the agent had authority to sign for the principal.
This case illustrates how complex matters of estate planning can be, even when they appear simple on the surface. This is why it’s so important to work with an experienced estate planning attorney like Gem McDowell to handle your estate planning. Gem has over 25 years of experience helping individuals and families with estate planning in South Carolina. Call him and his associates at the Gem McDowell Law Group in Mt. Pleasant, SC today at 843-284-1021 to schedule a free consultation to discuss your estate planning needs.
