Richey v. County of Anderson

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Roger C. Richey and Eula R. Richey,       
Appellants,

v.

County of Anderson,       
Respondent.

Appeal From Anderson County

Ellis B. Drew, Jr., Master-in-Equity

Unpublished Opinion No. 2003-UP-663

Submitted September 17, 2003 – Filed November 17, 2003

AFFIRMED

John W. Fields, Michael D. Glenn, Glenn, Haigler, McClain,
of Anderson, for Appellants.

Bernie W. Ellis, of Greenville, Robert L. Widener, of Columbia,
for Respondent.

PER CURIAM:  Roger C. Richey and Eula R. Richey appeal from the master-in-equity’s
determination that the entire length of a road, as shown on a 1966 plat, had
been dedicated to the public.  We affirm. 

FACTUAL\PROCEDURAL BACKGROUND

This action involves a dispute over the
last twenty feet of a road known as Catrina Lane.  In 1966, the Richeys built
Catrina Lane when they sold an acre of their land to their daughter and her
husband.  The deed describes the lot as being bordered by the road.  The plat
that accompanied the deed shows the road with a forty-foot right-of-way leading
from Standridge Road to the northern line of the Richeys’ property.  The Anderson
County tax maps since 1982 show Catrina Lane running to the northern end of
the Richeys’ property.  The Richeys have not been assessed for the entire length
of Catrina Lane as shown on the maps.  Although the County has maintained the
road, by first putting tar and gravel on the road and later paving it with asphalt,
it did not maintain the last twenty feet at Mr. Richey’s request.  A fence has
stood on the Richeys’ northern property line since 1936. 

On September 22, 2000, the County’s Public Works
Division Director wrote to Mr. Richey to inform him that the County intended
to grant the abutting property owner’s request to tie into Catrina Lane.  He
asserted the County’s right-of-way extends from the paved portion of Catrina
Lane to the property line.  He instructed Mr. Richey to remove the fence from
the County’s right-of-way or the County would remove it for him. 

In response, the Richeys brought this action seeking
a declaration that the County has no interest in the 20 by 40 feet strip at
the end of the paved portion of Catrina Lane.  The case was referred to the
master-in-equity.  The master held the entire length of Catrina Lane to the
Richeys’ northern property line had been dedicated to public use.  

The Richeys filed a motion to alter or amend, including
affidavits from their daughter and granddaughter stating that the length of
Catrina Lane as described in a County ordinance designating all county roads
being maintained by the County includes only the paved portion and not the disputed
strip.  The master found that even if he considered the affidavits over the
County’s objection, they would not change the outcome of the case.  He explained
the ordinance merely described the roads that the County was maintaining rather
than the extent of all County right-of-ways that were not being maintained as
roads.  The master reaffirmed his earlier ruling and denied the motion to alter
or amend.  This appeal follows.  

STANDARD OF REVIEW

The determination of whether property has been
dedicated to the public is an action in equity.  Tyler v. Guerry, 251
S.C. 120, 125, 160 S.E.2d 889, 891 (1968); Van Blarcum v. City of N. Myrtle
Beach, 337 S.C. 446, 450, 523 S.E.2d 486, 488 (Ct. App. 1999).  As an equitable
matter tried by a master alone, we may find the facts in accordance with our
own view of the preponderance of the evidence.  Townes Assocs., v. City of
Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).  However, we are
not required to ignore the findings of the trial court, which heard and saw
the witnesses.  Van Blarcum, 337 S.C. at 450, 523 S.E.2d at 488.

DISCUSSION

The Richeys argue the master erred in ruling that
there was an implied dedication of the twenty-foot strip of land at the end
of Catrina Lane.  We disagree. 

Two elements are required to perfect dedication: 
(1) the owner’s positive and unmistakable intent to dedicate the property to
public use, and (2) some form of public acceptance of the land offered for dedication. 
Tupper v. Dorchester County, 326 S.C. 318, 326, 487 S.E.2d 187, 191-92
(1997).

The Richeys assert the evidence demonstrates that
they only intended to dedicate a portion of Catrina Lane.  It is generally held
that where land is divided into lots according to a plat thereof, showing streets,
and lots are sold and conveyed with reference to said plat, the owner thereby
dedicates the streets to the public.  Outlaw v. Moise, 222 S.C. 24, 30,
71 S.E.2d 509, 511 (1952).   The plat is not only evidence of the existence
of the dedication but also of the location of areas dedicated for public use. 
Van Blarcum v. City of N. Myrtle Beach, 337 S.C. 446, 451, 523 S.E.2d
486, 489 (Ct. App. 1999).  In the present case, the Richeys conveyed a lot to
their daughter and son-in-law referencing a 1966 plat showing Catrina Lane extending
to the northern property line.  Mr. Richey further demonstrated his intent that
the road was dedicated to the public by requesting the County replace pipes
and resurface the road to resolve a watershed problem in a February 26, 1990
letter.  We find the record supports the master’s conclusion that the road the
Richeys dedicated to the public extends to the northern property line. 

We next must determine whether the County accepted
the entire length of the road.  Under South Carolina law, where there is acceptance
of part of a road, the burden of proof shifts to the party seeking to prove
limited acceptance of the road.  Baugus v. Wessinger, 303 S.C. 412, 416,
401 S.E.2d 169, 172 (1991).  We find the Richeys have failed to meet this burden. 
Acceptance may be implied by the public authority continuously using, working,
and repairing the road.  Tupper, 326 S.C. at 326, 487 S.E.2d at 192. 
In addition acceptance and dedication may be demonstrated by the governmental
authority not assessing taxes on the land.  Id. at 327, 487 S.E.2d at
192.   Both of these modes of acceptance are demonstrated in the record.  The
County’s tax maps show Catrina Lane extending to the northern property line. 
The County did not assess taxes on the entire length of the road as shown on
the maps, including the disputed twenty feet.  In addition, it is undisputed
that the County has maintained the road except for the last twenty feet.  The
County’s maintenance of the road stopped twenty feet before the property line
at Mr. Richey’s request to allow him an unpaved area over which to move his
heavy machinery without damaging the surface of the road.  The County’s transportation
division director, Marshall Holt Hopkins, testified that until the County received
the abutting property owner’s request to tie into Catrina Lane, it did not have
a reason to pave to the property line.  He stated Mr. Richey’s request had not
interfered with the County’s plans.  He explained that as long at the maintained
area served the people who lived along the road, it could have stopped anywhere. 

Hopkins and Thomas Jefferson Ricketson, the County’s
planning division director, both testified they believed the county’s right-of-way
extended to the northern property line based on the 1966 plat filed by the Richeys. 
According to Ricketson, a current county ordinance requires a cul-de-sac be
built when a road is not going to connect to another road.  With  Catrina Lane,
the pavement merely stops, evidencing an intent that the pavement would be continued
in the future. 

The Richeys assert the County’s own Ordinance No.
2001-007, which was passed during the pendency of this action, demonstrates
the County’s limited acceptance of Catrina Lane.  The ordinance identifies all
roads being currently maintained by the County.  It describes Catrina Lane as
being 1758 feet in length.  With their motion to alter or amend, the Richeys
submitted affidavits from their daughter and granddaughter, who asseverated
that by their measurements, the paved portion of the road was 1754 feet on one
side and 1758 feet on the other side.  We agree with the master that this recently
enacted ordinance does not negate the County’s past acceptance of the entire
length of the road as shown on the 1966 plat.  As the master found, the ordinance
merely described the roads the County was currently maintaining.  It does not
claim to describe the extent of all of the rights-of-way the County possessed
but did not maintain.

In conclusion, we find the Richeys intended to
dedicate the entire length of Catrina Lane, as shown on the 1966 plat to public
use.  We furthermore find the Richeys failed to meet their burden of proving
the County’s limited acceptance of the road.  Accordingly, the master’s determination
that the public right-of-way extends to the Richeys’ northern property line
is

AFFIRMED.  

HUFF, STILWELL, and BEATTY, JJ., concur.