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2012-UP-067 - Ducker v. Stamper

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Dona F. Ducker, Fred C. Ducker, and Commercial Refrigeration, LLC, Appellants,

v.

Eleanor S. Stamper, Respondent.


Appeal From Georgetown County
Joe M. Crosby, Master-in-Equity


Unpublished Opinion No. 2012-UP-067 
Heard January 11, 2012 – Filed February 8, 2012


AFFIRMED


Robert J. Moran, of Murrells Inlet, for Appellants.

Jack M. Scoville, Jr., of Georgetown, for Respondent.

PER CURIAM:  After Eleanor Stamper installed fencing enclosing a corner of her property, Dona F. Ducker, Fred C. Ducker, and Commercial Refrigeration, LLC, (collectively "the Duckers") filed suit, complaining Stamper's fence obstructed their existing easement.  The master entered judgment in Stamper's favor.  The Duckers appeal, arguing the master erred in finding they are bound by a 1997 road closure action, have no public or private right in the portion of the road that was closed, and have no easement implied by prior use.  We affirm pursuant to Rule 220(b), SCACR, and the following authorities: 

1. As to the 1997 road closure action[1]: S.C. Code Ann. § 57-9-10 (2006) (providing "[a]ny interested person" may initiate a road closure action and requiring notice thereof to 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"); Rule 19(a), SCRCP (requiring a trial court to join a person as a party if "in his absence complete relief cannot be accorded among those already parties" or "he claims an interest relating to the subject of the action" and his absence from it might impair his ability to protect that interest). 

2. As to a private easement by dedication: Inlet Harbour v. S.C. Dep't of Parks, Recreation & Tourism, 377 S.C. 86, 91-92, 659 S.E.2d 151, 154 (2008) (recognizing an implied easement as an expression of a grantor's intent to convey along with transferred property "whatever is necessary for the property's use and enjoyment" but finding implied easements are not favored "because the implication of an easement in a conveyance goes against the general rule that a written instrument speaks for itself" and recognizing easements by dedication are created "when an owner conveys subdivided lots and references the plat in the deed," thereby granting "the lot owners an easement over the streets appearing in the plat" (citations omitted)); Murrells Inlet Corp. v. Ward, 378 S.C. 225, 233, 235, 662 S.E.2d 452, 455-57 (Ct. App. 2008) (requiring judicial analysis of implied easements to focus on the intent of the parties to the transaction and noting, "The easement referenced in the plat is dedicated to the use of the owners of the lots, their successors in title, and to the public in general.  As to the grantor, who conveyed the property with reference to the plat, and the grantee and his successors, the dedication of the easement is complete at the time the conveyance is made." (citations omitted)); McAllister v. Smiley, 301 S.C. 10, 11-12, 389 S.E.2d 857, 858-59 (1990) (holding an easement by dedication "inures to the benefit of the grantee and his successors in title"); Van Blarcum v. City of N. Myrtle Beach, 337 S.C. 446, 450, 523 S.E.2d 486, 488 (Ct. App. 1999) ("Proof of dedication must be strict, cogent, and convincing."). 

3. As to a public easement by dedication: Outlaw v. Moise, 222 S.C. 24, 30-31, 71 S.E.2d 509, 511-12 (1952) (holding a public easement by dedication is not complete until some manifestation of public acceptance occurs and stating such public acceptance need not be given formally but may be manifested by public action within a reasonable time[2]); Baugus v. Wessinger, 303 S.C. 412, 416, 401 S.E.2d 169, 172 (1991) ("[W]here . . . acceptance of part of a street is clearly shown, the burden of proof shifts to the party . . . seeking to prove limited acceptance of the street."); § 57-9-10 (authorizing a court of competent jurisdiction to declare a street abandoned or closed upon the petition of "[a]ny interested person"); Hoogenboom v. City of Beaufort, 315 S.C. 306, 318 n.4, 433 S.E.2d 875, 884 n.4 (Ct. App. 1992) (recognizing abandonment of a street dedicated to public use extinguishes the public's right to use the street). 

4.  As to an easement implied by prior use:  Boyd v. Bellsouth Telephone Telegraph Co., 369 S.C. 410, 417, 633 S.E.2d 136, 139 (2006) (requiring a party asserting the right to an easement implied by prior use to establish (1) the title was unified in one owner; (2) the common owner severed title; (3) the prior use was in existence at the time of unity of title; (4) the prior use was not merely temporary or casual; (5) the prior use was apparent or known to the parties; (6) the prior use was necessary at the time of severance of title in that there could be no other reasonable mode of enjoying the dominant tenement without the prior use; and (7) the common grantor indicated an intent to continue the prior use after severance of title (citations omitted)).   

AFFIRMED.

HUFF and LOCKEMY, JJ., and CURETON, A.J., concur. 


[1] We note the master erred in finding BancOhio National Bank v. Neville, 310 S.C. 323, 426 S.E.2d 773 (1993), stood for the proposition, "The only indispensable parties to a road closing are the public entities that may be charged with its maintenance."  It does not.  BancOhio indicates a public entity holding a "proprietary interest" in a road, including an easement or a right of way, is an indispensable party to a closure action, but not the only such party.  Id. at at 329, 426 S.E.2d at 777.  However, this error does not affect the disposition of the Duckers' appeal. 

[2] See, e.g., Huxfield Cemetery Ass'n v. Elliott, 388 S.C. 565, 570-71, 698 S.E.2d 591, 594 (2010) (distinguishing statutory dedication from common law dedication, which "rests on public convenience and is based on public policy and good faith"); Tupper v. Dorchester Cnty., 326 S.C. 318, 326, 487 S.E.2d 187, 192 (1997) (recognizing acceptance by the "use, repair, and working of the streets by public authorities"); Boyd v. Hyatt, 294 S.C. 360, 365, 364 S.E.2d 478, 481 (Ct. App. 1988) (recognizing acceptance by the public's continuous use of the property).