County of Florence v. Eagerton

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

County of Florence and Thomas J. Hewitt, Respondents,

v.

Carol Eagerton, Appellant.

Appellate Case No. 2017-002519

Appeal From Florence County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No. 2021-UP-342
Heard May 11, 2021 – Filed September 29, 2021

AFFIRMED

Rose Mary Parham, of Parham Law Firm, LLC, of
Florence, for Appellant.

D. Malloy McEachin, Jr., of McEachin & McEachin,
P.A., of Florence, for Respondents.

PER CURIAM: Carol Eagerton appeals the trial court's determination that the
public and the County of Florence (the County), by dedication or prescription,
acquired the right to use and maintain Hewitt Cemetery Road as part of the
County's road system. On appeal, Eagerton argues (1) the County did not prove by
clear and convincing evidence it legally acquired rights to Hewitt Cemetery Road
by implied dedication and (2) the trial court erred in finding evidence established a
prescriptive easement. We affirm.

Hewitt Cemetery Road is located in the County, runs north to south, and connects
to two public roads—Cato Road to the north and Branch Road to the south. The
road continues across Branch Road, but that portion of Hewitt Cemetery Road is
private. Over the past seventy years, plats prepared by multiple parties have
referred to Hewitt Cemetery Road by seven different names. Aerial photos
spanning the same period depicting Hewitt Cemetery Road in its present and
historical footprint show the road has not changed since 1965.

Eagerton is the owner of three tracts of land on Hewitt Cemetery Road: a 20.9-acre
tract (Tract A), a 40.7-acre tract (Tract B), and a 12.51-acre tract (Tract C).
Eagerton currently pays taxes on the portion of Hewitt Cemetery Road that runs
through her property. In December 1981, Eagerton and her ex-husband purchased
Tract A from Willie Mae Painter. The couple subsequently purchased Tract B
from Painter in October 1988 and Tract C in April 2000. In 2004, revenue from
the County paid for graveling the dirt road. Eagerton attempted to stop the
graveling but was unsuccessful; in an attempt to restrict the public's access to the
road, she erected gates in 2013 at both ends of the road. As a result, the County
filed an action in 2013 seeking injunctive relief against Eagerton and a declaration
that Hewitt Cemetery Road is a public road.

At trial, the County introduced eight plats—spanning forty-five years and prepared
by four surveyors—and aerial photographs showing Hewitt Cemetery Road. Three
of the introduced plats indicate Hewitt Cemetery Road as "County Maintained."
Deeds in Eagerton's chain of title referenced the plats. The County introduced a
deed received by Eagerton's ex-husband that references "Hewitt Cemetery Road,
County maintained." No plat introduced at trial references a right-of-way to
Eagerton's property via the road and no easements are recorded in Eagerton's deeds
granting access to her property from either Cato or Branch Roads. However, the
County did not present evidence showing an express grant of dedication by either
Painter or Eagerton to the County.

The County called multiple witnesses to testify regarding the longstanding public
usage of Hewitt Cemetery Road as well as the County's maintenance of the road
over many years. According to Arthur Gregg, the director of the County's Public
Works Department, when he became director in 1989, the County did not have an
inventory of the roads it was maintaining. He explained the Public Works
Department relied on its road crews to remember which roads the County
maintained. Gregg asserted the County had maintained Hewitt Cemetery Road
since at least 1972. Gregg also addressed the County's lack of maintenance
records. He explained that a flood destroyed some of the records and the
department disposed of other maintenance records after "the archives said [the
department] didn't have to retain [certain] records." Jerry Allen—a forty-year
employee of the County's Public Works Department whose job encompassed
maintaining all the dirt, paved, and graveled roads in the County—testified Hewitt
Cemetery Road was included on a list of roads maintained by the County when he
joined the department in the early 1980s. Allen stated he plowed Hewitt Cemetery
Road once every two or three weeks when he oversaw the road. Additionally,
multiple residents in the area testified they used the road regularly, witnessed other
vehicles using the road, and observed the County maintaining the road. Many of
the testifying residents were over fifty years old, and most had lived in the area
since the 1970s. Finally, the County tax assessor explained Eagerton pays taxes on
the portion of the road that runs through her property because that is the practice in
the County regarding public roads. The trial court declared Hewitt Cemetery Road
as a public road by virtue of dedication and prescriptive easement.

1. The trial court did not err in concluding Hewitt Cemetery Road had been
impliedly dedicated. In the absence of an express dedication, the County proved
Painter's and Eagerton's conduct convincingly indicated their intention to create a
right for the public and the County to use the road. Eagerton asserts she did not
impliedly dedicate the road; however, the County proved that it and the public
accepted the implied dedication through continuous use and repair of the road.
Residents and employees of the County testified the County had been maintaining
Hewitt Cemetery Road since the early 1970s, when Painter owned the tracts
bordering Hewitt Cemetery Road. Notably, a local citizen testified the County had
been maintaining Hewitt Cemetery Road since the 1950s. The County also
introduced maintenance records dating back to October 1981 and addressed the
gaps in the maintenance records caused by environmental and clerical destruction.
Finally, testimony demonstrated residents routinely used the road after Eagerton
purchased Tract A in 1981 and until she erected gates in 2013. In total, the County
presented sufficient evidence to convincingly establish either Painter or Eagerton
impliedly dedicated the road for public use. See Mack v. Edens, 320 S.C. 236, 239,
464 S.E.2d 124, 126 (Ct. App. 1995) ("The determination of whether a roadway
has been dedicated to the public is an action in equity."); id. ("Dedication requires
two elements. First, the owner must express in a positive and unmistakable
manner the intention to dedicate his property to public use. Second, there must be,
within a reasonable time, an express or implied public acceptance of the property
offered for dedication." (citation omitted)); Anderson v. Town of Hemingway, 269
S.C. 351, 354, 237 S.E.2d 489, 490 (1977) ("[T]he burden of proof to establish
dedication is upon the party claiming it."); Vick v. S.C. Dep't of Transp., 347 S.C.
470, 477, 556 S.E.2d 693, 697 (Ct. App. 2001) ("South Carolina law recognizes
two types of implied dedication—'one where the question of implied dedication
arises from the sale of land with reference to maps or plats; the other when the
dedication arises . . . from an abandonment to or acquiescence in public use.'"
(alteration in original) (quoting Shia v. Pendergrass, 222 S.C. 342, 347, 72 S.E.2d
699, 701 (1952))); Boyd v. Hyatt, 294 S.C. 360, 364, 364 S.E.2d 478, 480 (Ct.
App. 1988) ("An intention to dedicate may be implied from the circumstances.");
id. ("Any act or declaration on the part of the dedicator which fully demonstrates
his intention to appropriate [his] land to public use, or from which a reasonable
inference of his intent to dedicate may be drawn, is sufficient." (alteration in
original) (quoting 23 Am. Jur. 2d Dedication § 27 (1983))); id. ("However, absent
an express grant, one who asserts a dedication must demonstrate conduct on the
part of the landowner clearly, convincingly[,] and unequivocally indicating the
owner's intention to create a right in the public to use the property in question
adversely to the owner."); Mack, 320 S.C. at 239, 464 S.E.2d at 126 ("[T]he intent
to dedicate may be implied from allowing lengthy public use of the land."); id.
("[D]edication may not be implied from the permissive, sporadic, and recreational
use of property."); id. ("The record must contain evidence the owner of the
property clearly, convincingly, or unequivocally intended to dedicate the property
for public use."); id. ("Acceptance may be implied by the public or a public
authority continuously using or repairing the property."); Anderson, 269 S.C. at
356, 237 S.E.2d at 491 ("The fact that respondent paid taxes on the disputed
property may thus be considered as evidence contrary to an intent to dedicate the
street to the public." (emphasis added)).

2. We decline to address the trial court's prescriptive easement determination
because the trial court's implied dedication determination resolves this case. See
Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) ("In light of our disposition of the case, it is not necessary to
address [a party's] remaining issues.").

AFFIRMED.

KONDUROS, GEATHERS, and MCDONALD, JJ., concur.