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2004-UP-056 - Greene v. Griffith

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


George C. Greene, III and Molly F. Greene,        Respondents,

v.

Jack W. Griffith,        Appellant,

and

The State of South Carolina,        Respondent.


Appeal From Charleston County
Roger M. Young, Master-in-Equity


Unpublished Opinion No. 2004-UP-056
Heard December 12, 2003 – Filed January 29, 2004


AFFIRMED


Desa A. Ballard, of W. Columbia and George H. McMaster, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Deputy Attorney General Treva G. Ashworth, Assistant Deputy Attorney General J. Emory Smith, Jr., all of Columbia and  W. Foster Gaillard and Thomas L. Harper, Jr., both of Charleston, for Respondents.


PER CURIAM: This case involves the disputed ownership of real property.  George C. Greene, III and Molly F. Greene sought to prove they owned a disputed tract of land and that Jack W. Griffith had slandered the title to their property by causing a plat to be recorded that showed Griffith as the disputed tract’s owner.  Griffith denied these allegations and brought a third-party action against the State of South Carolina seeking to quiet title to other, adjoining property.  The trial court ruled in favor of the Greenes and the State, finding title to the disputed properties rested with the Greenes and the State, respectively.  Griffith appeals.  We affirm.

FACTS

This action arose when Griffith claimed ownership of a twelve-foot strip of land held by landowners George and Molly Greene.

In 1984, the Greenes purchased a lot known as 134 East Edgewater Park Drive in Charleston County by deed from Inez R. Bradham.  This deed describes the boundaries of the property by reference to a plat dated February 6, 1984, that indicates the high water mark along Wappoo Creek serves as the lot’s eastern boundary.  The deed was properly recorded.  In 1985, the Greenes built a home on the lot, where they have lived continuously since. 

Griffith claims to have acquired adjacent property known as “Marsh Island” by deed in 1964.  The Marsh Island deed references a 1913 plat (McCrady Plat) that depicts the property as being surrounded on all sides by creeks or bodies of water.  One of these creeks separates Marsh Island at its western edge from the area that now comprises the Edgewater Park Subdivision, where the Greenes’ lot is located.

In 1997, Griffith commissioned Hagar E. Metts to perform a survey of  the Marsh Island property.  Metts prepared a plat (Metts Plat) that showed a strip of highland extending from the northeastern corner of Marsh Island across the northern property line of the Greenes’ lot, suggesting that a narrow twelve-foot strip of land on the eastern edge of the Greenes’ lot was actually owned by Griffith.  The Metts Plat was recorded.

The Greenes learned of the Metts Plat when Griffith’s son offered to “trade” the disputed strip of land with the Greenes in exchange for a grant of an access easement to Marsh Island over the Greenes’ lot.  The Greenes refused to accept the proposed trade and brought this action to quiet title to the disputed portion of their lot or, alternatively, seeking a declaration that they owned the disputed area by adverse possession. [1]   They also sought damages for slander of title.  Griffith denied the Greenes’ allegations and asserted a counterclaim, seeking an easement by necessity across the Greenes’ property.

The trial court determined the Greenes had title to the disputed strip of land adjacent to Marsh Island.  Alternatively, it found the Greenes had ownership of the disputed strip by virtue of adverse possession.  The court also found the Greenes were entitled to $55,676.62 in damages for slander of title caused by Griffith.  Griffith’s counterclaim for an easement by necessity was denied.

Though this case was originally an action to determine title between the Greenes and Griffith, the trial court determined that all or a portion of the Marsh Island property might be subject to a claim of title by the State. Consequently, the State was joined as a party.

In Griffith’s amended pleadings, he filed a third party complaint in which he alleged he had superior title over the State to the highlands on Marsh Island.  The State answered, denying Griffith’s claim of superior title.  The trial court found title to the highland portions of the Marsh Island property rested solely with the State.

STANDARD OF REVIEW

Concerning the dispute between the Greenes and Griffith, the Greenes’ complaint labels its first cause of action as one to quiet title.  An action to quiet title is one in equity.  See Van Every v. Chinquapin Hollow, Inc., 265 S.C. 474, 477, 219 S.E.2d 909, 910 (1975); Freeman v. Freeman, 323 S.C. 95, 98, 473 S.E.2d 467, 469 (Ct. App. 1996).  However, where, as here, one party asserts paramount title to the disputed land to defeat the other party’s claims, it is an action at law.  Mountain Lake Colony v. McJunkin, 308 S.C. 202, 204, 417 S.E.2d 578, 579 (1992); see also Watson v. Suggs, 313 S.C. 291, 293, 437 S.E.2d 172, 173 (Ct. App. 1993) (holding that “[a]n action brought for the primary purpose of determining title to a disputed land is in the nature of a trespass action to try title, which is an action at law”). 

The Greenes’ complaint also asserts causes of action for slander of title and adverse possession – both actions at law.  See Miller v. Leaird, 307 S.C. 56, 61, 413 S.E.2d 841, 843 (1992) (noting that an adverse possession claim is an action at law); Boehnlein v. Ansco, Inc. 61 Or. App. 389, 393, 657 P.2d 702, 705 (1983) (holding that slander of title is an action at law).  We also note the only damages sought or awarded were under the slander of title claim.

We hold the action between Griffith and the Greenes should be characterized as an action at law, and Griffith, through counsel, so conceded at oral argument as to the slander of title claim.  As such, our scope of review extends only to the correction of errors of law, and factual findings of the trial court will not be disturbed on appeal unless a review of the record discloses that there is no evidence that reasonably supports those findings.  Crary v. Djbelli, 329 S.C. 385, 388, 496 S.E.2d 21, 23 (1998) (citing Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 85, 221 S.E.2d 773, 775 (1976)).

We find Griffith’s third party action against the State concerning title to the highlands involves these parties’ respective claims of paramount title.  The pleadings, having squarely placed the issue of paramount title before the court, present a legal claim.  See Van Every, 265 S.C. at 479, 219 S.E.2d at 911 (holding that where pleadings present an issue regarding paramount title to land, the issue is a “purely legal issue”).  Our scope of review with respect to Griffith’s third party action against the State is, therefore, limited to the correction of legal errors and determining if any evidence supports the trial court’s factual findings. [2]

LAW/ANALYSIS

I.       Slander of Title

Griffith first contends the trial court erred in finding he slandered the title to Greene’s property.  We find no error.

In South Carolina, slander of title has been recognized as a common law cause of action.  See Huff v. Jennings, 319 S.C. 142, 148, 459 S.E.2d 886, 890 (Ct. App. 1995) (holding that, although the court was directly addressing a claim for slander of title for the first time in South Carolina jurisprudence, “South Carolina law, through its incorporation of the common law of England, recognizes a cause of action for slander of title”).  To maintain a claim for slander of title, our courts have held “the plaintiff must establish (1) the publication (2) with malice (3) of a false statement (4) that is derogatory to plaintiff’s title and (5) causes special damages (6) as a result of diminished value in the eyes of third parties.”  Id. at 149, 459 S.E.2d at 891 (adopting the elements of slander of title outlined in the Restatement (Second) of Torts § 623A (1977)).

Here, Griffith contests the trial court’s ruling that he slandered the Greenes’ title on the grounds that the Greenes failed to establish Griffith acted with malice and that the Greenes failed to prove they consequently suffered special damages.  We disagree.

A.      Malice         

We first find sufficient evidence to support the trial court’s finding that Griffith acted with the requisite malice when he recorded the Metts Plat.  This court held in Huff v. Jennings that “[i]n slander of title actions, the malice requirement may be satisfied by showing the publication was made in reckless or wanton disregard of the rights of another, or without legal justification.”  Huff, 319 S.C. at 150, 459 S.E.2d at 891.

Sufficient evidence supports the finding that Griffith acted in reckless or wanton disregard of the Greenes’ rights to the disputed strip and that he acted without legal justification.  Significantly, we note Griffith admitted at trial that he owns no interest in the disputed strip of land and that he never thought he held any interest in that land.  Despite this admission, Griffith testified that he instructed Metts to prepare the plat and stated, “I told [Metts] that the tax office said I owned [the strip of land in question].”  Metts testified that, when he prepared the plat, he had no evidence that Griffith had any ownership interest in the disputed strip.

Griffith counters that he did not record the plat, and he did not have any knowledge of how the plat came to be recorded.  However, the record contains ample evidence supporting the trial court’s finding to the contrary.  For example, Griffith’s own testimony reveals that he had the plat delivered to the Charleston County Planning Department, he had meetings with the Planning Department that involved reference to the plat, and the plat was returned to Griffith after it was recorded.  Notably, when asked at trial: “Did you write a check to get that plat recorded?,” Griffith responded that he “might have.”

 Without looking beyond Griffith’s own testimony, we find ample evidence to support the trial court’s finding he acted with malice as defined under Huff.  Acknowledging he has never had any legal claim to the disputed property, we find Griffith willfully ignored the Greenes’ rights in the property and had the plat prepared and recorded with no legal justification.

B.      Special Damages

The trial court conducted a separate hearing to determine the amount of damages the Greenes were entitled to receive under the slander of title claim.  The court awarded as special damages $57,675.62 for expenses incurred for attorney fees, expert fees and other litigation costs.  Huff, 319 S.C. at 151, 459 S.E.2d at 892 (stating that special damages recoverable in a slander of title action include “the expense of measures reasonably necessary to counteract the publication [of slanderous statements of title], including litigation” (quoting 50 Am.Jur.2d Libel & Slander § 560)).  Griffith challenges the propriety of awarding attorney fees and litigation expenses in a slander of title action.  In response, the Greenes argue Griffith failed to preserve this issue for appellate review.  We agree with the Greenes.

At trial, Griffith did not object to the Greenes’ entitlement to these litigation expenses.  Griffith’s counsel merely requested leave of court to “file a brief … I just want to be able to review the bills, and submit a brief if I do have a question of law concerning multiple charges.”  The trial court granted Griffith’s request, observing, “I will leave [the record] open for ten days to allow [Griffith] to file a memorandum on that.”  Griffith filed no response and no Rule 59(e), SCRCP, motion was filed challenging the special damages in any respect.  Having failed to properly raise and preserve this issue in the trial court, Griffith may not challenge the award of special damages for the first time on appeal.  See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”).   

II.      Adverse Possession

          Griffith next argues the trial court erred in finding the Greenes held title to the disputed strip by virtue of adverse possession.  However, by Griffith’s own admission, he neither claims nor holds any interest in the property.  Thus, no we find justiciable controversy exists with respect to the adverse possession claim.  Accordingly, we decline to address this issue.  See Mathis v. South Carolina State Hwy. Dep’t, 260 S.C. 344, 346, 195 S.E.2d 713, 714 (1973) (stating that an appellate court will not “make an adjudication where there remains no actual controversy”).

III.    Title Dispute with the State

Griffith’s dispute with the State involves the highland portions of Marsh Island adjacent to the twelve-foot disputed strip and lying to the east of the Greenes’ property. [3]   Griffith claims he holds title to all of the highland portions of Marsh Island.  The State, however, asserts superior title to these highland areas. [4]

A.      Chain of Title

We first concur we the trial court’s conclusion that Griffith does not own the portion of the marshlands in dispute, for the contested portion is not part of Griffith’s chain of title.  We further find Griffith has abandoned this issue on appeal.  In his final brief, Griffith recites in conclusory fashion under the section entitled “statement of the case” that in 1964 he acquired the property known as Marsh Island.  In the argument section of the brief, Griffith merely finds fault with the trial court’s “laborious analysis of the chain of title of the Greenes and Griffith, none of which was necessary … nor [is] any of the trial judge’s analysis regarding the chain of title … relevant to Griffith’s claim.”  We find the detailed analysis of the change of title not only relevant, but also dispositive of the issue before us.  The passing reference in Griffith’s brief to the testimony of his expert, with neither supporting authority nor argument, falls short of our issue preservation rules.  See Fields v. Melrose Ltd. P’ship, 312 S.C. 102, 106, 439 S.E.2d 283, 285 (Ct. App. 1993) (stating “an issue raised on appeal but not argued in the brief is deemed abandoned and will not be considered by the appellate court”);  Bell v. Bennett, 307 S.C. 286, 294, 414 S.E.2d 786, 791 (Ct. App. 1992) (holding that failure to argue issue in brief constitutes abandonment of it); Toal, Vafai, & Muckenfuss, Appellate Practice in South CarolinaSearch Term End , 75-76 (S.C. Bar 2000) (stating “an issue is deemed abandoned on appeal, and therefore, not presented for review, if it is argued in a short, conclusory statement without supporting authority”). [5]

We find that the trial court’s chain of title determination is, in any event, correct.  The land owned by the Greenes and that portion of the disputed marshlands, known as Marsh Island, to the east were originally part of a much larger tract of land known as Wappoo Hall Plantation.  Marsh Island is bounded on the north by Wappoo Creek, on the east by an unnamed creek that separates it from Polly Island, on the south by Elliott’s Cut and on the west by an unnamed creek that separates it from Ficken’s Island. [6]

Wappoo Hall Plantation was conveyed to John F. Ficken and Henry H. Ficken in 1898.  In 1902, the Fickens conveyed the portion of the property on which Marsh Island is located to J. Martin Bottjer (Bottjer Deed). [7]   When John F. Ficken purportedly conveyed this marshland to Griffith’s predecessor in title, Union Corporation, in 1913, Ficken no longer had title to this marshland.  “A grantor of real property generally can transfer no greater interest than he himself has in the property.”  Von Elbrecht v. Jacobs, 286 S.C. 240, 243, 332 S.E.2d 568, 570 (Ct. App. 1985).  We find that these marshlands, therefore, are not properly included in Griffith’s chain of title.

B.      Entitlement to Land Accretion

Assuming Marsh Island is in Griffith’s chain of title, his claim for the highlands must nevertheless fail.

Resolution of a controversy as to ownership of the wetlands in South Carolina and accompanying highlands must be examined in light of special ownership rules.  In general, the State holds title to lands lying between the mean high water mark and mean low water mark on tidal navigable waterways.  Hobonny Club, Inc. v. McEachern Caning Co., 272 S.C. 392, 252 S.E.2d 133 (1979).  Lands, however, that form and surround our tidal estuaries and marshlands are subject to constant change by the sometimes powerful ebb and flow of the tidal waters.  Land that may lie below the high tide mark may over time, after the gradual deposit of silt and other sediment, rise well above the previous mark.  The converse is, of course, true because the tides may erode highland property so that it eventually falls below the high tide mark.  Such change may also occur artificially through the efforts of man, as wetland property may be filled and no longer be affected by the tides.  Because of these changes, it can be difficult to discern at any fixed point in time where the rights of the State end and the rights of a contiguous, private landowner begin. 

Our courts further recognize certain legal principles concerning accretions by alluvial or artificial action to riparian or littoral lands.  Wetland areas that become dry land through the natural accumulation of mud, sand and sediment generally do not remain in title to the State, for “imperceptible additions to the shore from such deposits should follow title to the shore itself.”  Epps v. Freeman, 261 S.C. 375, 386, 200 S.E.2d 235, 241 (1973).  Significantly, however, where those accretions result from the “exertions of man[,] … the principle that title to imperceptible additions to the shore from such deposits should follow title to the shore itself has no application.”  Id.  The distinction resting on the source of the accretion is premised on ownership of contiguous land to which the accretion can attach.  See Horry County v. Tilghman, 283 S.C. 475, 480, 322 S.E.2d 831, 834 (Ct. App. 1984) (stating “[a]n owner’s right to accretion depends upon the contiguity of his lands to navigable waters and it is indispensable that there be an estate to which the accretion can attach”). 

Marsh Island derives its name from its original state as marshland.  The McCrady Plat establishes that, as of 1913, Marsh Island contained no highlands. [8]   Marsh Island, through the years, did not remain an untouched piece of submerged property.  There is evidence of man-made changes to the marshland.  For example, in approximately 1939, the Intracoastal Waterway’s construction resulted in the filling of portions of this area.  Even Griffith’s expert, Hagar Metts, reluctantly acknowledged that the area of these highlands “looks like” fill.  Moreover, after he claims he acquired title in 1964, Griffith had approximately one thousand loads of fill dirt deposited.  To the extent highlands were created by Griffith’s own efforts, no ownership benefit may inure to him.  This necessarily follows from the settled principle that accretions resulting from the “exertions of man” preclude application of the general rule that title follows the “shore itself.”  Epps, 261 S.C. at 386, 200 S.E.2d at 241.  Pursuant to Horry County v. Tilghman: 

[I]f alluvion is formed artificially and not by [the upland owner’s] direction, he should be entitled to its benefit. . . . [I]f a project is undertaken by the State or any governmental agency in aid of navigation, and it is essential that the State or agency thereof have the benefit of the alluvion formed by the accretion in order to realize the goal undertaken by the project, it must be held that the private rights yield to the interest of the public.

283 S.C. at 481, 322 S.E.2d at 834.

Griffith seizes upon the term “essential” to argue that it was not essential for the State to “have the benefit of the alluvion formed by the accretion” for which it may have been responsible.  For two fundamental reasons, this argument does little to advance Griffith’s claim of title to the highlands.  First, Griffith overlooks the other sources, including himself, responsible for the fill and the inability to ascertain the degree to which the various contributing sources are responsible for the creation of the highlands.  In light of his burden of proof, Griffith certainly cannot find refuge in the  inability to apportion responsibility for the artificial accretions among the various contributors.  Second, it is undisputed the State owns the tidelands. [9]   In essence, Griffith owns no contiguous land “to which the accretion can attach.”  Tilghman, 283 S.C. at 480, 322 S.E.2d at 834.  While “title to imperceptible additions … follow[s] the title to the shore itself[,]” Griffith has no “shore” to which title can attach.  Epps, 261 S.C. at 386, 200 S.E.2d at 241. 

Accordingly, we find ample evidence in the record to support the trial court’s determination that “it is doubtful that Griffith has title to any of Marsh Island.”  Our review of the record firmly persuades us as well that Griffith failed to meet his burden of proof. 

CONCLUSION

We conclude that the trial court correctly found Griffith liable for slandering the Greenes’ title, and we find no error with the trial court’s determination of title in favor of the Greenes and the State, respectively.  The judgment of the trial court is therefore

AFFIRMED.

HEARN, C.J., HOWARD and KITTREDGE, JJ., concur.


[1]            Griffith also attempted to leverage the State with the Metts Plat by seeking a deed from the State transferring to him its interest in the property.  The State rejected Griffith’s efforts.

[2]            Griffith contends on appeal that his action against the State should be reviewed de novo as an appeal from a purely equitable action.  While we disagree, our independent review of the record convinces us of the correctness of the trial court’s findings.  Thus, a determination of the appropriate standard of review is not critical to the outcome.

[3]           The disputed tract is referenced in the record as “the lands shown on the [Metts Plat] located immediately to the east of the [d]isputed [s]trip and immediately to the east of the Greenes’ property.”  The parties have, for ease of reference, consistently referred to the property as Marsh Island or the highlands.  We will do likewise.

[4]           We reject Griffith’s argument that the State’s claim of title was not before the trial court.  Because of Griffith’s claim of superior title to the highland portions of Marsh Island, the State was joined as a party for the purpose of addressing and resolving Griffith’s claim of paramount title.  The State’s pleading denies Griffith’s claim of paramount title and asserts that “it has prima facie fee simple title, in public trust, of all lands now or formerly lying below the highwater mark of all tidal navigable waters in the State, including the lands involved in this case which now lie or formerly lay below the mean highwater mark.”  The suggestion that the issue of title was not before the trial court belies the record before us.  Indeed, notwithstanding any purported deficiency in the State’s pleadings, the competing claims of title to the highlands were presented to the trial court.  “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”  Rule 15(b), SCRCP.  Finally, any error in affirmatively finding in favor of the State would not inure to Griffith’s benefit, for Griffith in any event failed to prove his entitlement to the highlands in dispute. 

[5]           We recognize “an appellant may not use the reply brief as a vehicle to argue issues  not argued in the appellant’s  brief.”  Appellate Practice in South Carolina, at 75.  Nevertheless, we note Griffith’s reply brief makes no mention of the trial court’s chain of title determination, although such issue is featured in the Respondents’ briefs.

[6]           The eastern portion of Ficken’s Island is now known as the Edgewater Park subdivision.  The Greenes’ lot is located in Edgewater Park.

[7]           The Bottjer Deed transfers Fickens Island and its adjoining marshes.  The accompanying plat clearly designates the adjacent marshes as part of the conveyance.  The plat is recorded with the deed in the land records office of Charleston County in Book X-23, P 663.  “Where a deed describes land as it is shown on a certain plat, such plat becomes part of the deed for the purpose of showing the boundaries, metes, courses and distances of the property conveyed.”  Hobonny Club, Inc. v. McEachern Caning Co, 272 S.C. 392, 397, 252 S.E.2d 133, 136 (1979).

[8]           By contrast, the McCrady Plat depicts the nearby Polly Island as containing a small area designated as highland. 

[9]           After acquiring a deed for Marsh Island in 1964, Griffith had approximately one thousand loads of fill deposited.  The State filed suit to enjoin the filling, asserting its claim to all of the wetlands areas of Marsh Island.  The case progressed to the state supreme court, which held the State had title to the “tidelands,” specifically the “land between the lines of the ordinary high and low tides covered and uncovered by the daily flow and ebb thereof.”  State v. Griffith, 265 S.C. 43, 46, 216 S.E.2d 765, 766 (1975).