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2009-UP-029 - Demetre Family v. City of Folly Beach

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The Milton P. Demetre Family Limited Partnership, Plaintiff,

v.

Harry Beckmann, III, Patricia P. Beckmann, Annie Ruth Hilton Crowley, Raymond Moody Crowley, Donald William Crowley, Harris L. Crowley, Jr., and Annie Ruth Crowley Atkinson, Defendants.

The Milton P. Demetre Family Limited Partnership, Plaintiff,

v.

City of Folly Beach, Defendant,

and Emily S. Brown, Annie Ruth Hilton Crowley, Harry Beckmann, III, and Patricia P. Beckmann, Intervenors,

of whom The Milton P. Demetre Family Limited Partnership is the Appellant,

and City of Folly Beach,  Emily S. Brown, Harry Beckmann, III, Patricia P. Beckmann, Annie Ruth Hilton Crowley, Raymond Moody Crowley, Donald William Crowley, Harris L. Crowley, Jr., and Annie Ruth Crowley Atkinson are the Respondents.


Appeal From Charleston County
 Mikell R. Scarborough, Master-in-Equity


Unpublished Opinion No. 2009-UP-029
Heard November 6, 2008 – Filed January 14, 2009
Withdrawn, Substituted and Refiled April 21, 2009


AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED


Richard D. Bybee and Stanley E. Barnett, of Mount Pleasant, John Hughes Cooper, of Sullivan's Island and Cain Denny, of Charleston, for Appellant.

Stephanie P. McDonald, O. Benjamin Peeples, Jr., and Joseph S. Mendelsohn, of Charleston and Richard L. Whitt and Jefferson D. Griffith, III, of Columbia, for Respondents.

PER CURIAM:  The Milton P. Demetre Family Limited Partnership (Demetre) appeals two orders of the master-in-equity.  Demetre argues the master erred by determining the City of Folly Beach (Folly Beach) owned East Indian Avenue.  Demetre also argues the master erred by dismissing his claims for declaratory judgment, decree to quiet title, and an injunction and damages for trespass and nuisance.  We affirm in part, reverse in part, and remand.

FACTS

Most of the Island of Folly Beach, South Carolina was platted and subdivided by the Jefferson Construction Company in 1920, and recorded in the Charleston County Register of Mesne Conveyance (RMC) Office.  Subsequently, in 1965 the 1920 plat was redrawn because of deterioration and in 1968 it was traced.  The redraw added parcels to the 1920 plat; however, the tracing appears to be identical to the 1920 plat.  All three plats share the same book and page number at the RMC Office.

Between 1921 and 1925, the Folly Beach Improvement Company (FBIC) acquired the entire island of Folly Beach and mortgaged its complete interest to C & S Bank.  In 1937, the FBIC sold "all the streets, avenues, and/or lanes in and upon Folly Island" to the Board of Township Commission of Folly Island for the use of the public.  In 1942, C & S Bank foreclosed on the mortgage and the land was bought by Edward Seabrook, Sr., at a public auction.  The deed conveyed the island to Seabrook "[s]aving and excepting therefrom such lots and portions of land as have from time to time been conveyed to sundry parties by [FBIC] by deeds recorded in the RMC Office for Charleston County."[1] 

On May 30, 2002, Demetre purchased from Seabrook, Jr., a "portion of [East Indian Avenue] that is undeveloped and unpaved" bordering lots 201 to 205 for $10,000 by quitclaim deed (the Road).[2]  Both the 1920 plat and the 1968 redraw show a portion of East Indian Avenue extending from lot 201 to the northwest corner of lot 205.  Prior to purchasing the Road, Demetre's realtor stated he had a conversation with the Folly Beach mayor and city administrator in which they told him Folly Beach did not own the Road and suggested Demetre talk to Seabrook, Jr.[3]  Subsequently, Folly Beach asserted ownership of the Road.  As a result, on December 6, 2002, Demetre brought an action against Folly Beach to quiet title in Road, which borders other property Demetre owns (the Road case).  Emily Brown, who was allowed to intervene in the case, owns lot 204 on East Huron Avenue and has used the Road daily to access her property since January 30, 1986.

On January 23, 2004, Demetre bought two riverfront lots, 209 and 210, on East Indian Avenue from Seabrook, Jr., for $23,700 by quitclaim deed.  The deed references the 1920 plat.  Demetre's lots are shown on the 1965 redraw, but they do not appear on the 1920 plat or the Charleston County tax map.  When Demetre purchased East Indian Avenue lots 209 and 210, two existing docks from East Huron Avenue lots 209 and 210 crossed over a portion of Demetre's lots to reach the water.  As a result, on October 7, 2005, Demetre brought an action against Annie Crowley, Raymond Crowley, Donald Crowley, Harris Crowley, Jr., and Annie Atkinson (the Crowleys),[4] and Harry and Patricia Beckmann (the Beckmanns) for declaratory judgment and to quiet title to lots East Indian Avenue 209 and 210, where the Crowleys' and Beckmanns' docks cross over the property (the Dock case).[5] 

The Crowleys purchased lot 210, East Huron Avenue, on September 1, 1964, and the Beckmanns purchased lot 209, East Huron Avenue, on April 27, 1972.  Both of their deeds referenced the 1920 plat, which shows no lots between their lots and the marsh abutting the river.  The Crowleys and Beckmanns both believed they owned all the property behind their homes down to the marsh.  Beckmann testified he believed everything from his property line to the Folly River was owned by the State.[6]  In 1988, both the Crowleys and the Beckmanns applied for permits from the South Carolina Coastal Council (Council) to construct docks from their lots north to the Folly River across East Indian Avenue lots 209 and 210.  Both permits were granted by the Council and the docks were constructed; however, they were destroyed by Hurricane Hugo in 1989 and rebuilt in 1990.

On the motion of the parties, these two cases were referred to a master-in-equity and consolidated on August 21, 2006.  The cases were tried on December 12, 2006.  On March 2, 2007, the master issued the Road Order, finding the Road was dedicated to the public and Folly Beach owned the Road.  On March 26, 2007, the master issued the Dock Order, ruling in favor of the Crowleys and the Beckmanns on all grounds.  Demetre timely filed Rule 59(e), SCRCP, motions in both cases, which were denied.  Demetre then timely appealed both orders to this court and we consolidated the appeals on September 13, 2007.

LAW/ANALYSIS

I.  The Road Case

A.  Standard of Review

"The determination of whether a roadway has been dedicated to the public is an action in equity."  Mack v. Edens, 320 S.C. 236, 239, 464 S.E.2d 124, 126 (Ct. App. 1995).  Therefore, we may find the facts in accordance with our own view of the preponderance of the evidence; however, we are not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to judge their credibility.  Cody Discount, Inc. v. Merritt, 368 S.C. 570, 574-75, 629 S.E.2d 697, 699 (Ct. App. 2006).

B.  Dedication 

Demetre argues the master erred by finding Folly Beach accepted the dedication by recording the deed.  We disagree.   

Dedication requires two elements: (1) intent to dedicate and (2) acceptance of the dedication.  Mack, 320 S.C. at 239, 464 S.E.2d at 126.  The intention of an owner to dedicate his property to public use must be expressed in a positive and unmistakable manner.  Horry County v. Laychur, 315 S.C. 364, 368, 434 S.E.2d 259, 261 (1993).  "It is generally held that when the owner of land has it subdivided and platted into lots and streets and sells and conveys the lots with reference to the plat, he thereby dedicates the streets to the use of such lot owners, their successors in title, and the public."  Blue Ridge Realty Co. v. Williamson, 247 S.C. 112, 118, 145 S.E.2d 922, 924-25 (1965).  "A recorded plat may be sufficient to disclose a landowner's intent to dedicate property to public use."  Van Blarcum v. City of N. Myrtle Beach, 337 S.C. 446, 450, 523 S.E.2d 486, 488 (Ct. App. 1999).  The burden of proving intent to dedicate is on the party asserting dedication.  Shia v. Pendergrass, 222 S.C. 342, 349, 72 S.E.2d 699, 702 (1952); Vick v. S.C. Dep't of Transp., 347 S.C. 470, 477 n.2, 556 S.E.2d 693, 697 n.2 (Ct. App. 2001). 

Evidence of acceptance of a dedication must be by clear, convincing, and unequivocal proof.  Vick, 347 S.C. at 477 n.2, 556 S.E.2d at 697 n.2.  An express or implied public acceptance of the property offered for dedication must occur within a reasonable time.  Helsel v. City of N. Myrtle Beach, 307 S.C. 24, 27, 413 S.E.2d 821, 823 (1992).  An acceptance of an offer of dedication may be implied by the public or the public authority's continuous use or maintenance of the property in some fashion.  Boyd v. Hyatt, 294 S.C. 360, 365-66, 364 S.E.2d 478, 481 (Ct. App. 1988).  "Acceptance of dedication may be shown by use by a comparatively small number of persons, as in the case of a short street to the seashore."  23 Am. Jur. 2d Dedication § 50 (2002).  "The public use need not be constant, but merely continuous in light of the particular nature of the land."  Id.  Also, the non-assessment of taxes is a factor in the determination of dedication and acceptance.  Tupper v. Dorchester County, 326 S.C. 318, 327, 487 S.E.2d 187, 192 (1997).

The 1937 deed from the FBIC to the Board of Township Commission of Folly Island stated it was dedicating "all the streets, avenues, and/or lanes in and upon Folly Island" for the use of the public, which was properly recorded.  The foreclosure deed to Seabrook stated it was conveying to him the land "saving and excepting . . . such lots and portions of land as have from time to time been conveyed to sundry parties by Folly Beach Corporation and [FBIC] by deeds recorded in the RMC Office for Charleston County."  Also, the 1920 plat, which was referenced in Seabrook's deed, shows East Indian Avenue extending from lot 201 to the northwest corner of lot 205; and the Road is not included on the tax map.  Furthermore, Seabrook's quitclaim deed to Demetre references the 1920 plat. 

Additionally, evidence was presented at trial that the Road was paved at one time, and Folly Beach filled in pot holes on the Road, sprayed the Road for mosquitoes, and removed trees from the Road after Hurricane Hugo.  Brown also testified she and her family have used the Road daily for twenty years to access her property and the public uses the Road to park cars, jog, bike, and walk dogs.  Therefore, we find the master correctly held the Road was dedicated to Folly Beach by deed and plat, and Folly Beach accepted the dedication by using and maintaining the Road.

C.  Equitable Estoppel

Demetre also argues the master erred by finding he did not satisfy the elements of equitable estoppel.  We disagree.

"Government agents, acting within the scope of their authority, can by their acts give rise to estoppel against a municipality."  Landing Dev. Corp. v. City of Myrtle Beach, 285 S.C. 216, 221, 329 S.E.2d 423, 426 (1985).  Equitable estoppel is found to exist when the following elements are present:

(1) [C]onduct by the party estopped which amounts to a false representation or concealment of material facts or which is calculated to convey the impression that the facts are otherwise than and inconsistent with those which the party subsequently attempts to assert; (2) the intention or at least expectation that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the true facts; (4) lack of knowledge or the means of knowledge of the facts by the other party; (5) reliance upon the conduct by the other party; and (6) a detrimental change of position by the other party because of his reliance.

McCrowey v. Zoning Bd. of Adjustment of City of Rock Hill, 360 S.C. 301, 305, 599 S.E.2d 617, 619 (Ct. App. 2004).  The burden of proof lies with the party asserting an estoppel.  Pamplico Bank & Trust Co. v. Prosser, 262 S.C. 153, 159, 203 S.E.2d 110, 112 (1974). 

Demetre claims Folly Beach is estopped to repudiate its former interpretation of its ownership of the Road because he and his agent lacked the knowledge or means to know whether the city had formally or implicity accepted a dedication of the Road.  Demetre also claims his purchase of the property is evidence of his reliance and detrimental change in position based on their statements.  However, Demetre should have exercised further diligence in determining the true ownership of the parcels instead of simply relying on the alleged statements of the mayor and city administrator, especially because (1) there was initial confusion over the Road's ownership, (2) Seabrook only gave Demetre a quitclaim deed, (3) the price for the property was relatively inexpensive, and (4) the Road does not appear on the tax map.  Therefore, we find the master correctly determined Demetre did not satisfy the elements of equitable estoppel.   

II.  The Dock Case

A.  Standard of Review

"A suit for declaratory judgment is neither legal nor equitable, but is determined by the nature of the underlying issue."  Felts v. Richland County, 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991).  "To make this determination we look to the main purpose of the action as determined by the complaint."  Estate of Revis v. Revis, 326 S.C. 470, 476, 484 S.E.2d 112, 115 (Ct. App. 1997).  When "the main purpose of the complaint concerns the determination of title to real property, it is an action at law."  Query v. Burgess, 371 S.C. 407, 410, 639 S.E.2d 455, 456 (Ct. App. 2006); see also Wigfall v. Fobbs, 295 S.C. 59, 60, 367 S.E.2d 156, 157 (1988) ("The determination of title to real property is a legal issue.").  In an action at law tried by the master alone, our review is limited to correcting errors of law and we will affirm the master's factual findings if any evidence in the record reasonably supports the findings.  Lowcountry Open Land Trust v. State, 347 S.C. 96, 101-02, 552 S.E.2d 778, 781 (Ct. App. 2001).

B.  Ownership of the Property

Demetre argues the master erred by failing to make a determination that he owned all the property between the Crowleys' and the Beckmanns' lots and the mean high water mark.

"Historically, the State holds presumptive title to land below the high water mark."  McQueen v. S.C. Coastal Council, 354 S.C. 142, 149, 580 S.E.2d 116, 119 (2003); Hilton Head Plantation Prop. Owners' Ass'n, Inc. v. McDonald, 375 S.C. 220, 224, 651 S.E.2d 614, 616 (Ct. App. 2007); see also Hobonny Club, Inc. v. McEachern, 272 S.C. 392, 396, 252 S.E.2d 133, 135 (1979) ("This Court has held that lands lying between the usual high water line and the usual low water line on tidal navigable watercourses enjoy a special or unique status, being held by the State in trust for public purposes.").  "One asserting title to this land must prove a specific grant from the sovereign[,] which is strictly construed against the grantee."  Coburg Dairy, Inc. v. Lesser, 318 S.C. 510, 512, 458 S.E.2d 547, 548 (1995). 

Demetre sought a declaration that he owns all the property between the Crowleys' and the Beckmanns' lots and the mean high water mark, and he sought to quiet any defects in his title to the land.  The master did not rule on either request and only held the Crowleys and the Beckmanns believed the State owned the land when they applied for their dock permits, which does not resolve the question of actual ownership.  Demetre does not dispute the presumption that the State holds in trust for public purposes the property below the mean high water mark.  Therefore, because the master failed to rule on Demetre's requests for a declaration of ownership and to quiet title to the portions of the lots above the high water mark, we remand this case to the master for a determination on this issue.

C.  Other Issues

We need not address Demetre's remaining issues because we remand this case for a determination on whether Demetre owns the land between the Crowleys' and the Beckmanns' lots and the mean high water mark on lots 209 and 210 East Indian Avenue.

CONCLUSION

Therefore, we affirm the master's March 2, 2007 order finding Folly Beach owns East Indian Avenue and Demetre failed to satisfy the elements of equitable estoppel.  However, we reverse the master's March 26, 2007 order and remand for findings in accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

HEARN, C.J., and SHORT and KONDUROS, JJ., concur.


[1] Seabrook, Sr., and his wife, Fannie, conveyed Seabrook's property to their son, Edward Seabrook, Jr., through the wills of Seabrook, Sr., who died in 1956, and Fannie, who died in 1960.

[2] Also, in 2002, Demetre bought lots 206 to 208 for $45,000 from Seabrook, Jr.; lots 202 to 205 for $475,000 from another seller; and "any and all interest in marshland or highland north of lot 201 Indian Avenue East" for $5 from a third seller.

[3] Demetre's realtor, Keith McCann, sent Demetre a letter stating the Folly Beach mayor and city administrator had determined Folly Beach did not own the Road.  He also stated the city officials suggested Demetre talk to Seabrook, Jr., who then offered to sell the land to Demetre.  However, at trial, the depositions of the mayor and city administrator were read into the record.  They both testified they did not remember telling Demetre or his realtor that Folly Beach did not own the Road. 

[4] Harris and Annie Crowley were the original owners of 210 East Huron Avenue; however, Harris died on April 26, 1995, leaving Annie Crowley with a life estate in the property and a fifty percent remainder interest in the property to Raymond Crowley, Donald Crowley, Harris Crowley, Jr., and Annie Atkinson.  The new deed was dated August 15, 1996. 

[5] The Crowleys and Beckmanns were permitted to intervene in the Road case because the rear of their lots abut East Indian Avenue.

[6] In fact, Demetre's October 7, 2005 complaint states portions of lots 209 and 210 on East Indian Avenue are "located within the critical area and; therefore, would require a permit for utilization from the South Carolina Department of Health and Environmental Control's Office of Ocean and Coastal Management."