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24763 - Michael Slear, et al., v. Jethro Hanna, et al.

Davis Adv. Sh. No. 7
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

    Michael Slear and

    Elizabeth A. Slear,         Petitioners,

        v.

    Jethro Hanna and

    Watson's Riverside, Inc.,         Defendants,

    of Whom

    Jethro Hanna is         Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Horry County

John M. Leiter, Special Referee

Opinion No.24763

Heard June 4, 1997 - Filed February 17, 1998

REVERSED

Henrietta U. Golding, of Bellamy, Rutenberg,
Copeland, Epps, Gravely & Bowers, P.A., of Myrtle
Beach, for petitioners.
Charles V. Leonard & Willard D. Hanna, Jr., of
Harris & Hanna, P.A., of Myrtle Beach, for
respondent.
John P. Henry, of the Thompson Law Firm, P.A., of

p. 3


SLEAR, ET AL., v. HANNA, ET AL.
Conway, for Watson's Riverside, Inc.

        FINNEY., C.J.: We granted certiorari to, review the Court of

Appeals' opinion in Slear v. Hanna, 321 S.C. 100, 467 S.E.2d 761 (Ct. App.

1996). We reverse.

        Petitioners brought this action seeking a ruling that they had the

right to use Ester Landing in Watson's Riverside Development as an access

point to the Intracoastal Waterway. Petitioners are property owners in the

development. Respondent, Jethro Hanna, owns property adjacent to the

landing. The special referee found it was the intent of the developer to

dedicate Ester Landing to all property owners in the development and the

private dedication was accepted by the residents of Watson's Riverside

Development. Accordingly, the special referee concluded petitioners had the

right to use Ester Landing. The Court of Appeals reversed. Slear. supra.

        J. Watson Smith purchased two pieces of property in Horry

County which he transferred in 1973 to Watson Riverside Inc. In July 1973,

a plat (Cox Plat) and Declaration of Restrictions were recorded showing

Blocks A-G of Watson's Riverside Development and restrictions on use of the

property. On October 20, 1975, restrictions on the use of Block H, shown on

a previously recorded Plat of "Watson's Riverside Addition," were recorded

and the owners of property in Blocks A-G agreed to have the previously

recorded restrictions changed to conform to the restriction on Block H. On

December 30, 1975, a plat showing an expansion of Block H was recorded

and outside the boundary of Block H was printed "Reserved for Future

Development." On July 10, 1978, a plat depicting Blocks K - O, designated

as Watson's Riverside Addition, Phases III and IV was recorded and on July

7, 1980, restrictions identical to those recorded for Blocks A - H were

recorded. Petitioners' property is located in Block M.

        On January 27, 1976, respondent purchased Lot 1-A of Block B

of Watson's Riverside Development as shown on the Cox Plat. The deed

stated in pertinent part the following:

The grantor hereby covenants and warrants that . . .
the road dividing Lot 1 and Lot 1-A as shown on
said plat is not to be used as a public landing but is
to be used only by residents of Watson's Riverside
Development and that said road and landing will be
maintained and kept in a neat, clean and attractive

p. 4


SLEAR, ET AL., v. HANNA, ET AL.
manner.
The grantor hereby agrees for the consideration
stated above to have the undeveloped road between
Lot 1 and Lot 1-A and known as Ester Landing as
shown on said plat paved, said road to be properly
ditched, smoothed out and paved where present ditch
now situate; Grantor agrees to provide and fence the
boundary adjoining the grantee's land with a stout
chain like fence; Grantor to maintain fence, . . . . It
is the further understanding that a locked gate is to
be placed at the entrance of said landing and keys to
be provided only to residing land owners; said
covenants, warranties and promises to run with the
land and to bind the parties [sic] heirs, successors,
assigns, administrators or executors as the case may
be.

        Petitioners assert the Court of Appeals erred in reversing the

special referee's finding there was a private dedication of use. In particular,

the Court of Appeals concluded that the reservation as to the use of Ester

Landing contained in respondent's deed inured only to the benefit of those lot

owners or future owners of lots on the plats of record in 1976 (Cox Plat).

The Court of Appeals looked to all plats of record in 1976 depicting Watson's

Riverside Development and found "no hint the development then encompassed

or would in the future encompass the area where the [petitioners] ultimately

purchased their lot." Petitioners contend there is ample evidence in the

record and in the recorded plats to have put respondent on notice that

Watson's Riverside Development included more than shown on the Cox Plat.1

        The outcome here is based on the proper scope of review. The

determination of the existence of an easement is a question of fact in a law

action and subject to an any evidence standard of review when tried by a

judge without a jury. Jowers v. Hornsby, 292 S.C. 549, 357 S.E.2d 710

(1987). If the action is viewed as interpreting a deed, it is an equitable


        1The special referee found that Watson's Riverside Development

consisted of Blocks A through O as depicted on the tax map. The referee

also found that all property owners in Blocks A through O have a common

grantor, were subject to identical restrictions and the consecutive lettering

of the Blocks evidenced a single scheme. Further, one of the plats stated

that additional property was reserved for future development.

p. 5


SLEAR, ET AL., v. HANNA, ET AL.

matter and the appellate court may review the evidence to determine the

facts in accordance with the court's view of the preponderance of the

evidence. Wayburn v. Smith, 263 S.C. 518, 211 S.E.2d 560 (1975); Heritage

Federal Savings & Loan Association v..Eagle Lake Condos, 318 S.C. 535, 458

S.E.2d 561 (Ct. App. 1995).

        Here, the Court of Appeals treated this case as one to interpret

a deed.2 The pleadings and evidence present the primary issue of whether

or not the deed creates an easement in favor of petitioners as residents of the

development. The determination of the existence of an easement is a

question of fact and subject to an any evidence standard review. Jowers,

supra. There is evidence in the record to support the special referee's

findings, accordingly we reverse on this issue.

        Petitioners also contend the Court of Appeals should have

affirmed the referee's ruling that Ester landing was dedicated to public use

by the developer. We disagree. The referee concluded solely that there was

a dedication for private use and did not address whether there was a public

dedication. Accordingly, there was no ruling on this ground for the Court of

Appeals to affirm.

The Court of Appeals' decision is

Reversed.

TOAL, WALLER, BURNETT, A.J., and Acting Associate

Justice George T. Gregory Jr., concur.


        2The Court concluded that the referee erred in his interpretation of

the deed. The Court further concluded the language in respondent's deed

residents of Watson's Riverside Development" when considered in

conjunction with the provision that a locked gate would be installed and

keys would be provided only to residing land owners is ambiguous and

thus the intention of the parties to respondent's deed must be determined.

p. 6