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24992 - Mosteller v. County of Lexington, et al.

Shearouse Adv. Sh. No. 28
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Elbert Mosteller, Appellant,

v.

County of Lexington and

S. C. Department of

Transportation, Respondents.

Appeal From Lexington County

Marc H. Westbrook, Circuit Court Judge

Opinion No. 24992

Heard June 10, 1999 - Filed August 23, 1999

AFFIRMED

Shane E. Swanson, of Mt. Pleasant, for appellant.

Jeffrey M. Anderson and Lisa L. Smith, both of

Nicholson, David, Frawley, Anderson & Ayer, LLP, of

Lexington, for respondents.





TOAL, A.J.: This case involves a challenge by a property owner to

the closure of a railroad crossing in Lexington County. Summary judgment was

granted for the defendants. The plaintiff appeals to this Court. We affirm.

p.13


Mosteller v. County of Lexington, et al.,





FACTUAL/PROCEDURAL BACKGROUND



In February 1995, the South Carolina Department of Transportation

("SCDOT") closed the railroad crossing on White Owl Road in Chapin, South

Carolina pursuant to S.C. Code Ann.§ 58-15-1625 (Supp. 1998). Elbert

Mosteller ("Plaintiff"), a nearby property owner, sued Lexington County and

SCDOT for closing the crossing. White Owl Road was one of several roads that

connected.U.S. Highway 76 to Harvestview Road. Plaintiffs property sits on

Harvestview Road directly across from where White Owl Road meets

Harvestview.1 To reach White Owl Road, Plaintiff must cross over Harvestview

Road. In fact, for his own convenience, Plaintiff constructed his driveway so

that it faces into White Owl Road. Plaintiff frequently used White Owl Road to

reach Highway 76. In addition to White Owl Road, Plaintiff can access

Highway 76 by traveling to other roads located in either direction on

Harvestview Road. These roads are approximately one-half a mile from

Plaintiff s residence.





In his pro se complaint, Plaintiff alleged causes of action for temporary

and permanent injunction, deprivation of substantive due process,

unconstitutional taking, and arbitrary and capricious action. Plaintiff claimed

that he should have been given notice of the closing pursuant to S.C. Code Ann.

§ 57-9-10 (1991). He further claimed that the closing of White Owl Road

constituted a taking and resulted in the depreciation of his property value.





On July 2, 1998, Defendants moved for summary judgment, and on

September 14, 1998, the trial court heard arguments on the motion. By order

dated September 28, 1998, the trial court granted Defendants' summary

judgment motion. The trial court held that White Owl Road had not been

closed. Plaintiff appeals to this Court, raising the following issues:

(1) Did the trial court err in concluding that White Owl Road had not

been closed where conflicting evidence was presented?

(2) Did the trial court err in deciding that Plaintiff was not entitled to

notice of the closure?

(3) Did Plaintiff make a prima facie showing of a constitutional taking?


1 Plaintiff's address is 245 Harvestview Road.

p.14


Mosteller v. County of Lexington, et al.,





SCOPE OF REVIEW



Summary judgment is appropriate when it is clear that there is no

genuine issue of material fact and that the moving party is entitled to judgment

as a matter of law. Café Assoc., Ltd. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162

(1991). Summary judgment is not appropriate where further inquiry into the

facts of the case is desirable to clarify the application of the law. Middleborough

Horizontal Regime Council of Co-Owners v. Montedison, 320 S.C. 470, 465

S.E.2d 765 (Ct. App. 1995).





LAW/ANALYSIS



Plaintiff first argues that he was entitled to notice of the closing under

S.C. Code § 57-9-10 (1991). We disagree.

Section 57-9-10 provides:

Any interested person, the State or any of its political subdivisions

or agencies may petition a court of competent jurisdiction to

abandon or close any street, road or highway whether opened or

not. Prior to filing the petition, notice of intention to file shall be

published once a week for three consecutive weeks in a newspaper

published in the county where such street, road or highway is

situated. Notice shall also be sent by mail requiring a return

receipt to the last known address of all abutting property owners

whose property would be affected by any such change.

This section of the Code has remained unchanged since its enactment in 1962.

In 1992, the General Assembly enacted S.C. Code Ann. § 58-15-1625 (Supp.

1998), which states:

Notwithstanding any other provision of law, the Department of

Transportation may order legally closed and abolished as a public

way, within the limits of a railroad right-of-way, a grade crossing

then in existence at the time the department assumes jurisdiction

of the matter, upon a finding that the enhancement of public safety

resulting from such closing outweighs any inconvenience caused by

increased circuitry of highway routes. This order by the

department may be issued either in connection with, or

independent of, an order relating to automatic train-activated

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Mosteller v. County of Lexington, et al.,





warning signals. The authority of the department legally to close

and abolish grade crossings is in addition to authority granted by

law to other state agencies or to local units of government to close

and abolish grade crossings. Upon the issuance of the order by the

department, the railroad or railroads involved shall physically

remove the crossing from the tracks, and the governmental unit

maintaining the highway shall remove or barricade the approaches

to the crossing.

(Emphasis added). Under the authority of this section, the SCDOT closed the

railroad crossing on White Owl Road in Lexington County. Plaintiff argues that

closing the railroad crossing effectively closed White Owl Road and therefore

triggered the notice provisions of section 57-9-10.





When interpreting a statute, this Court's primary function is to ascertain

the intention of the Legislature. Holley v. Mount Vernon Mills, Inc, 312 S.C.

320) -440 S.E.2d 373 (1993). When a statute is clear and unambiguous, the

terms of the statute must be given their literal meaning. Id.





Section 57-9-10 requires two separate notice procedures -- notice by

newspaper published in the county where the road is located and notice by mail

to abutting landowners. As a resident within the county, Plaintiff had standing

to seek enforcement of the statute. However, the application of section 57-9-10

in this case must be considered in light of section 58-15-1625. The railroad

closing statute does not require any notice prior to a grade crossing closing. The

statute simply requires that the SCDOT issue an order closing the grade

crossing within a railroad right-of-way upon finding that the enhancement of

public safety would outweigh any inconvenience of increased circuitry of

highway routes. Further, the statute is introduced with the phrase,

"Notwithstanding any other provision of law . . . . " By using this language, the

legislature clearly intended that section 58-15-1625 be exclusive of other

provisions of law, including section 57-9-10. In effect, section 58-15-1625

trumps the notice requirements of section 57-9-10. See Lewis v. Gaddy, 254

S.C. 66, 173 S.E.2d 376 (1970) (holding that by using the phrase

"notwithstanding any other provision of law" in section 4-29 of the 1967 Code,

the legislative intent was to allow both the possession and consumption of

alcoholic liquors upon the premises of a business "establishment meeting the

requirements of section 4-29, notwithstanding the provisions of section 4-95).

Thus, since section 58-15-1625 contains no notice provision, the SCDOT is not

statutorily required to provide notice prior to closing a railroad grade crossing.

p.16


Mosteller v. County of Lexington, et al.,





Plaintiff next argues that he had a constitutionally protected right to

access Highway 76 via White Owl Road. We disagree.





Plaintiff cites South Carolina State Highway Dept v. Allison, 246 S.C.

3891143 S.E.2d 800 (1965) for the proposition that an abutting property owner

has a right of access over a street adjacent to his property, and that an

obstruction that materially injures or deprives the abutting property owner of

ingress or egress to and from his property is a taking for which recovery may be

had. In applying Allison to the instant case, Plaintiff contends that he had a

property right to access Highway 76 from Harvestview Road via White Owl

Road. The closing of White Owl Road impeded this right and decreased

Plaintiff's property value as a result.





In Allison, U.S. Highway 29 was constructed over the western portion of

the landowner's property. A condemnation proceeding had been instituted in

connection with the acquisition of a right of way for Highway 1-85, one lane of

which was to be constructed on top of Highway 29. The landowner had access

to Highway 29 along the entire western extremity of his property prior to the

taking. After the taking, he would have identical access to a frontage road

being constructed in conjunction with 1-85. By traveling seven-tenths of a mile

south of his property on this frontage road, the landowner could enter 1-85. The

landowner sued, arguing there was a compensable taking. This Court agreed,

holding that the landowner was entitled to compensation for his loss of access

to Highway 29. As noted by Plaintiff in this case, a critical fact in Allison was

that the affected road abutted the plaintiffs property. The Court in Allison

observed that the fee to the right of way of most roads in this state remained in

the abutting landowners. It was the loss of this right that the Court held was

compensable.







"'Abut' means to be contiguous, or border on; to bound upon; to end, end

at, or terminate, to join at a border or boundary; to meet; to touch at the end or

side." 1 C.J.S. at 397 (1985). However, "abut" does not always mean there must

be actual contact. See id. For example, property may still be deemed to abut

a road when there is some intervening, natural barrier like a stream or river.

See Anderson v. Town of Albemarle, 109 S.E. 262 (N.C. 192 1). However, in this

case, Plaintiffs property is separated from White Owl Road by Harvestview

Road. Plaintiff may, in fact, use Harvestview Road to access Highway 76 at

points north and south of White Owl Road. There is no part of Plaintiff's

property that actually touches, or is separated by a natural barrier from, any

section of White Owl Road. Thus, Plaintiff cannot suffer a constitutional taking

p.17


Mosteller v. County of Lexington, et al.,





by virtue of the closing of the railroad crossing on White Owl Road.2



CONCLUSION



Based on the foregoing, we AFFIRM the trial court.



FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur


2 That is not say that an abutting landowner would not have a

constitutional claim as a result of such a closing. In City of Rock Hill V.

Cothran, 209 S.C. 357, 40 S.E.2d 239 (1946), this Court held that the right of

a landowner to recover damages because of the vacation of a street depends on

the location of his land with reference to the part of the street vacated, and the

effect of such vacation on his rights as an abutting owner. The Court stated

that the test is not whether the property abuts the affected section of the road,

but whether there is special injury. If the property does not abut on the part of

the street vacated, the landowner must be specially injured as to be entitled to

recover compensation on the ground that his access is cut off in one direction,

but not in the opposite direction. In Cothran, the plaintiff's corner lot fronted

on a street that was partially closed by City Council. The portion closed did not

abut the plaintiff's property. The effect of the closing turned the street into a

cul de sac. The Court found that the plaintiff had suffered a special injury. The

Court further held that the fact the landowner had access to a street on another

side of his property was one to be considered in estimating the damages to be

awarded. Cothran, 209 S.C. at 368-71, 40 S.E.2d at 243-44. Cothran is

distinguishable from the instant case because, in this case, the landowner's

property does not abut any part of the affected road.



p.18