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Unpublished Opinion No. 2012-UP-067 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).