Opinion
19267
August 16, 1971.
Messrs. Cromer, Louthain Meeting, of Columbia, for Appellant, cite: As to the Appellant's clearly owning the land under the water of the pond from the high water mark on the eastern side of Big Black Creek to the portion where the run of the creek was located on November 1, 1887: 111 S.C. 87, 96 S.E. 714; 2 McMul. 44, 37 Am. Dec. 545; 126 S.E.2d 510; 189 S.C. 26, 199 S.E. 909; 93 C.J.S. Waters, Sec. 146, P. 859; 11 C.J.S., Boundaries, Sec. 104 (4) pp. 693, 694; 11 C.J.S., Boundaries, Sec. 27 (2), p. 571. As to no basis in the Respondent's chain of title for any claim of ownership of property between the run of Big Black Creek and the high water mark on the eastern side of the pond, which burden of proof rested on the Respondent and which he has utterly failed to establish: 28 C.J.S., Ejectment, Sec. 23, p. 877; 86 S.C. 461, 68 S.E. 661; 126 S.E.2d 510. As to Respondent's not having acquired title to the pond by prescription or adverse possession: 78 S.E.2d 588. As to where the titles of several owners include the land covered by water, they may, as a general rule, use the entire surface of the lake for boating and fishing, so far as they do not interfere with the reasonable use of the water by other owners: 22 Am. Jur. Fish and Fisheries, Sec. 21, p. 682; 140, U.S. 371, 11 S.Ct. 808, 35 Law. Ed. 428, p. 436; 88 S.W.2d 127, 130; 5 A.L.R. 1056; 78 S.E.2d 588.
Messrs. Preston H. Callison, and G. Raymond McElveen, of Columbia, for Respondent, cite: As to necessity to show that the factual findings of the referee are contrary to the preponderance of the evidence in order to reverse the decree of the circuit court: 247 S.C. 554, 148 S.E.2d 375; 23 S.C. 109; 121 S.E.2d 427; 232 S.C. 195, 101 S.E.2d 494; 236 S.C. 52, 113 S.E.2d 66; 230 S.C. 174, 94 S.E.2d 879. As to question that "The law in South Carolina gives to the owner of the land under the water of a private artificial lake or pond the exclusive right to the use of the water above it and does not give any right to the use of any area beyond his property line", not being raised by Appellant's exceptions: 253 S.C. 628, 172 S.E.2d 819.
August 16, 1971.
This action involves the title to an area of land in Lexington County, South Carolina, covered by the waters of Crout or Zimmerman pond. The pond lies on both sides of the run of Big Black Creek and the parties own adjoining lands bordering the pond — those of plaintiff lying on the western side and defendant's to the east. The question at issue is whether the boundary line between the lands of the parties is the run of the creek; or whether plaintiff owns the land covered by the pond to the highwater mark on the eastern side, thereby excluding defendant from the use of the pond. Both parties claimed title under their respective deeds and plats and through adverse possession.
The special referee, to whom the issues were referred, and the trial judge, who heard the matter upon exceptions to the referee's report, concurred in their findings that the highwater mark of the pond on the eastern side thereof was the true boundary between the lands and denied defendant's claim of adverse possession. The defendant was accordingly enjoined from the use of the area in dispute. This appeal by the defendant followed.
There is no dispute as to the established legal principles which govern the issues.
Appellant's basic challenge to the judgment of the lower court is on the ground that it is without sufficient factual support.
Since this is an action at law, the conclusions of fact by the lower court are binding upon this court, unless they are without evidentiary support. Douglass v. Perry, 245 S.C. 486, 141 S.E.2d 348; Harrison v. Lanoway, 214 S.C. 294, 52 S.E.2d 264.
The report of the special referee and the order of the lower court review the evidence upon which their findings are based. We find no reason to justify a restatement here of the disputed facts. A careful review of the record convinces us that the judgment has ample factual support, which requires affirmance.
Judgment affirmed.
MOSS, C.J., and BUSSEY, BRAILSFORD and LITTLEJOHN, JJ. concur.