What standards governed a South Carolina agency placing a fence or enclosure on state land?

Plain-English summary

In a 1997 informal opinion, an assistant deputy attorney general addressed when state officials could fence or enclose public land. He concluded that improvements or enclosures had to primarily benefit the public. If the land was dedicated to a specific public purpose, the use had to serve that purpose and comply with applicable statutes and regulations. The opinion did not approve a particular fence or decide a site-specific dispute.

The letter drew on South Carolina's prohibition against donating state land to private parties, cases allowing public bodies to count meaningful indirect public benefits, and public-land trust principles. It compared an enclosure decision to a public-street closing: officials had to evaluate the actual public purpose and who would benefit most. The letter listed public resources, economic development, prior use, inconvenience to the public, and public cost against benefit as factors.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a South Carolina agency fence public land mainly for a private party's benefit?
A: The letter said improvements or enclosures had to primarily benefit the public. Its discussion of Art. III § 31 cautioned against an indirect donation of state land to a private party.

Q: Did a fence have to serve a purpose already assigned to that land?
A: Yes, if the property was dedicated to a specific public purpose. The opinion said the proposed use had to serve that purpose and comply with relevant statutes and regulations.

Q: What facts mattered when judging an enclosure's public purpose?
A: The letter identified the primary beneficiary, prior use of the open property, public inconvenience, public cost compared with benefit, and possible gains to public resources or economic development. It said each situation depended on its own facts.

Q: Did every private benefit invalidate a public-land project?
A: No. The opinion quoted South Carolina cases allowing a public body to consider indirect public benefits when evaluating a fair and reasonable return. It cautioned that benefits too incidental or secondary would not suffice.

Background and legal framework

The Department of Natural Resources asked for standards governing official enclosures or fences on state land. The letter cited Art. III § 31's ban on donating state lands to private parties and discussed public-purpose and trust duties. It also borrowed factors from an earlier AG letter about closing public streets. Its conclusion was a framework for a fact-specific assessment, rather than an answer about a particular parcel.

This was expressly an informal opinion signed by an assistant deputy attorney general. The letter said it had not been personally scrutinized by the Attorney General or officially published as a formal opinion.

Citations and references

• Constitution: Art. III § 31, quoted in the opinion.
• Case discussed: Haesloop v. City Council of Charleston, 123 S.C. 272, 278, 115 S.E. 596 (1922).

Official title

Asking for an outline and discussion of the standards which govern the placement of enclosures or fences upon state lands by state officials.

Requester

Paul S. League, Assistant Chief Counsel, South Carolina Department of Natural Resources

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-10-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97feb10league.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

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February IO, 1997

Paul S. League, Assistant Chief Counsel
South Carolina Department of Natural Resources
Post Office Box 167
Columbia, South Carolina 29202
Re: Informal Opinion
Dear Mr. League:
You have asked that I outline and discuss the standards which govern the placement of enclosures or fences upon state lands by state officials. LAW I ANALYSIS

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Art. III § 31 of the State Constitution (1895 as amended) provides in pertinent part as follows:
[l]ands belonging to or under the control of the State shall never be donated, directly or indirectly, to private corporations or individuals, or to railroad companies. Nor shall such land be sold to corporations, or associations, for a less price than that for which it can be sold to individuals. Our Supreme Court has interpreted this constitutional provision in Haesloop v. City Council of Charleston, 123 S.C. 272, 278, 115 S.E. 596 (1922), noting that "manifestly, we think, the reference in this constitutional provision is to public lands belonging to and controlled by the State in its capacity as sovereign proprietor." And in McKinney v. City of Greenville, 262 S.C. 227, 242-3, 203 S.E.2d 680 (1974), the Court recognized that the

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Mr. League
Page 2
February 10, 1997

Constitutional prohibition is not violated if the indirect benefits are deemed to be sufficient. The Court stated that

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... a public body may properly consider indirect benefits resulting to the public in determining what is a fair and reasonable return for disposition of its properties without running afoul of the constitutional prohibition against donations. Elliott v. McNair, 250 S.C. 75, 156 S.E.2d 421 (1967); Bobo v. City of Spartanburg, 230 S.C. 396, 96 S.E.2d 67 (1956); State v. Broad River Power Company, 177 S.C. 240, 181 S.E. 41 (1935); Babb v. Green, 222 S.C. 534, 73 S.E.2d 699 (1952); O'Dowd v. Waters, 130 S.C. 232, 125 S.E. 644 (1924); Antonakas v. Anderson Chamber of Commerce, 130 S.C. 215, 126 S.E. 35 (1924); Haesloop v. City Council of Charleston, 123 S.C. 272, 115 S.E. 596 (1923); Chapman v. Greenville Chamber of Commerce, 127 S.C. 173, 120 S.E. 584 (1923). In State v. Board River Power Company, supr~ the Court stated ... "These cases establish the rule that the indirect benefits expected to result from the improvement of the land granted, by way of the promotion of the public convenience, increase in the value of adjacent property, and taxes to be paid on the improvements themselves are sufficient to keep such a grant from amounting to a donation within the constitutional inhibition." Moreover, in Op.Atty. Gen., Op.No. 89-13 7 (November 27, 1989) we quoted with approval from an opinion issued August 27, 1985 wherein we stated:
... Article III, Sec. 31 provides that "lands belonging to or under the control of the state shall never be donated, directly or indirectly, to private corporations or individuals .... " While our Court has clearly stated that neither this provision nor the Due Process Clause in themselves require public bidding or a maximum price for the sale of property, Elliott v. McNair, 250 S.C. 75, 156 S.E.2d 421 (1967), it is also clear that the consideration from such a sale must be of "reasonably

Mr. League

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February 10, 1997
equivalent value ... " or "adequately equivalent ... ". Haesloop v. Charleston, 123 S.C. 272, 283, 285, 115 S.E. 596 (1923). In determining "what is a fair and reasonable return for disposition of its properties", a public body "may properly consider indirect benefits resulting to the public ... ". McKinney v. City of Greenville, 262 S.C. 227, 242, 203 S.E.2d 680 (1974). But such benefits must not be "of too incidental or secondary a character.... " Haesloop, supra. In short, when public officials sell the state's land, they are acting in a fiduciary relationship with the public and thus held to the "standard of diligence and prudence that [persons] ... of ordinary intelligence in such matters employ in their own like affairs." Haesloop, 123 S.C. at 284. It is also recognized that "[t]he state has a duty to protect and maintain public land held in trust, not surrender the rights thereto and regulate its use." 73B C.J.S., Public Lands, § 178. The State "is authorized to permit private use of public trust lands [only] when the private use will improve the public trust or the private use will not substantially impair the remaining trust lands and waters." Id.

Further, as to the management and use by the State of public property generally, it is said that
[t]he State does not have an unlimited right to property but may use it only for a public purpose ... . The extent and manner of use of the state property may be determined by a statute in the exercise of legislative power. Where a statute requires certain public lands to be used only for a specific public purpose, such land cannot be diverted to another inconsistent public use without explicit authorization. In the absence of statutory restrictions, the state generally may use land deeded to it in such manner as reasonable public necessity may require. Id. at § 146. In Nichols v. South Carolina Research Authority, 290 S.C. 415, 351 S.E.2d 155 ( 1986), our Supreme Court stated that "[p]ublic purpose is not easily defined." The Court further commented that "[i]t is oftentimes stated that a public purpose has for its objective

Mr. League
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February 10, 1997
the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents, or at least a substantial part thereof." Nichols approved a four-part test first enunciated in Byrd v. County of Florence, 281 S.C. 402, 315 S.E.2d 804 (1984) for determining a public purpose:

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[t]he Court should first determine the ultimate goal or benefit to the public intended by the project. Second, the Court should analyze whether public or private parties will be the primary beneficiaries. Third, the speculative nature of the project must be considered. In an Opinion dated July 6, 1984, we addressed the question of"whether the Town of Hampton may close two roads which have never been opened for use by the public and, if so, whether the property may be given to a nearby church and adjacent property owners." There we noted that a "municipal corporation hold and controls its streets in trust for the use and benefit of the general public ... ". Bethel Methodist Episcopal Church v. City of Greenville, 211 S.C. 442, 45 S.E.2d 841 (1947). Additionally, we stated that
... as all property held by municipal corporations is held in a fiduciary capacity, a street can be closed only to serve a public purpose and not for the sole benefit of an abutting property owner. Haesloop v. City Council of Charleston, 123 S.C. 272, 115 S.E. 596 (1923); City of Rock Hill v. Cothran, 209 S.C. 357, 40 S.E.2d 239 (1946). However, the court in Cothran went on to say that the mere fact that the closure of the street was at the instigation of an abutting owner does not, of itself, invalidate the closure or constitute an abuse of discretion by the city council. We further concluded that a number of factors should be considered "in determining whether the action is in the best interest of the public." Among these were: I. Enlarging the public resources;

2. Increasing the industrial energies of the city;
3. Promoting the productive power of a greater number of the
   city's inhabitants; and
4. Eliminating hazards to pedestrian and vehicular traffic;

Mr. League

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February 10, 1997

5. The use made of the street being closed;
6. Alternate routes of travel;
7. The location of markets, schools and churches;
8. The character and physical features of the land, etc.

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These foregoing factors could be readily adopted to the situation where the State or a public entity makes the decision to enclose or fence in public property. The same type of "cost-benefit" analysis applicable to the closing of a public street would serve well in determining whether such an enclosure is in the public interest and serves a public purpose or is primarily for the benefit of private parties. Such a determination is crucial in any such decision and, of course, each situation is unique to its own factual circumstances. Thus, I would conclude that any improvements or enclosures upon public property must primarily benefit the public. In addition, such use must serve the specific public purpose to which it may be dedicated (if applicable). This would include compliance with all relevant statutes and regulations for use of the agency's or the State's property. Third, factors which would be considered as to whether or not such enclosures would be for a public purpose would include: 1.

Whether such use would enlarge public resources;

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Whether such was for economic development, a clear public purpose;

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Who would be benefited by, particularly the pnmary
beneficiary for such enclosure;

4.

To what use was the unenclosed property previously put;

5.

What impositions and increased inconveniences
are placed upon the public.

6.

What is the cost to the public, weighed against
the public benefit?

Mr. League
Page 6
February 10, 1997
This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I am Very truly yours,

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Robert D. Cook
Assistant Deputy Attorney General
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