South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Colonial-era documents help SC landowner claim marsh ownership
November 26th, 2019

By Chloe Johnson, Post & Courier

Documents from the 1700s sanctioned by England’s King George III were used to prove 20 acres of marsh on Kiawah Island — land that’s usually state property — actually belongs to a private owner.

Charleston County Master-in-Equity judge Mikell Scarborough’s ruling covers Cougar Island, a small spit of land nestled in Kiawah’s Bass Creek.

A private owner already held title to roughly 3½ acres of highland there but claimed rights to some of the surrounding marsh, as well.

A 1774 King’s Grant document, which is a royal promise that parceled out land to settlers, was key to the case.

It showed that George III included the marshes in giving the land to its first European owner.

The document introduces its authority this way: “George the Third by the Grace of God, of Great-Britain, France and Ireland, King, Defender of the Faith, and so forth ...”

Today, a limited liability company linked to the Royal family (not the actual English royals) owns Cougar Island. In the middle of the last century, C.C. Royal of Aiken bought all of Kiawah, but the family later sold most of the island.

A family member declined to comment.

Absent colonial documents, land covered at high tide and exposed at low tide is presumed public property, said Amy Armstrong of the S.C. Environmental Law Project.

But state law allows private owners to claim that land if they can show Colonial-era private ownership.

In making his October ruling, Scarborough found “Plaintiff’s title derives from the 1774 King’s Grant ... without gap or interruption in the chain.”

Private marshes and beaches, however, are still under the purview of environmental regulators.

“It doesn’t really get you all that much because you still have to get a permit to do anything in that area,” Armstrong said. “You can’t just fill it in and do whatever you want.”

Armstrong said an owner could stop others from interfering with the land, however, by blocking a dock that might cross it, for example.

Doreen Larimer, a property records researcher, testified in the Cougar Island case. She declined to comment on that scenario but said people seek her services for all kinds of reasons other than litigation.

Some people want to know the history of the land they hold. Others are looking up parcels that were once in the family as they trace their ancestry.

“Like anybody would, they’d like to walk on that land, they’d like to see that land, they’d like to know what the family member was doing,” Larimer said.

Owners who want to assert their right to tidal lands have to show a full chain of ownership back to the English king or other granting authority and show that grant includes the marsh.

Legal descriptions of land can change, Larimer said. The only way to prove land in a King’s Grant is the same as a modern-day parcel is to trace the entire historical ownership.

Often, that’s easier said than done.

“Just because there was a grant given, they weren’t all recorded,” Larimer said. “They weren’t all available at archives.”

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