THE STATE OF SOUTH CAROLINA
In The Supreme Court
Elbert Mosteller, Appellant,
County of Lexington and
S. C. Department of
Appeal From Lexington County
Marc H. Westbrook, Circuit Court Judge
Opinion No. 24992
Heard June 10, 1999 - Filed August 23, 1999
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.
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?
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).
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
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.
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
"'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
by virtue of the closing of the railroad crossing on White Owl Road.2
Based on the foregoing, we AFFIRM the trial court.
FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur
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.