Turner v. Oconee County

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

James A. Turner, Jr., individually and as shareholder of Bayshore Association,
Inc.,        Appellant-Respondent,

v.

Oconee County, Joseph M. Sylvester and Marjorie V. Sylvester, Co-Trustees
of the Sylvester Family Trust, Jack C. Prescott, Doris Freeman Prescott
and Bayshore Association, Inc.,       
Defendants,

Of Whom Oconee County, Joseph M. Sylvester and Marjorie V. Sylvester,
Co-Trustees of the Sylvester Family Trust, and Bayshore Association, Inc.
are        Respondents,

and

Jack C. Prescott and Doris Freeman Prescott are       
Respondents-Appellants.

Appeal From Oconee County 

Ellis B. Drew, Jr., Master in Equity

Unpublished Opinion No. 2003-UP-471

Heard March 11, 2003 – Filed July 24,
2003

AFFIRMED AS MODIFIED

Robert Scott Sprouse, of Seneca, for Appellant-Respondent.

Bradley A. Norton, of Walhalla, for Respondents Oconee County
and Bayshore Association, Inc.

Perry H. Gravely, of Pickens, for Respondents-Appellants.

STILWELL, J.:  This action involves an access
path to the water in a subdivision on Lake Hartwell.  James Turner, a resident
of the subdivision, brought this action (1) seeking a declaratory judgment that
an access area in the subdivision is a public road that must be maintained by
the county, (2) alleging the landowners on either side of the access trespassed
on the access by encroachment, and (3) seeking to compel the homeowners’ association
to open the gated access.  The master granted the county summary judgment, refused
to require Turner’s neighbors to remove the alleged encroachments, and ruled
the homeowners’ association must maintain the access and keep it open for all
property owners in the subdivision.  Turner appeals, as do Jack and Doris Prescott,
his neighbors on one side of the access.  We affirm as modified.

BACKGROUND

The access path in dispute links the roads of Bayshore
Subdivision in Oconee County with Lake Hartwell.  The developer filed a plat
setting forth the lots and roads of the subdivision.  The plat showed a path
between two waterfront lots, Lots 67 and 68, that was labeled “access.”  The
access path had a width of 40 feet except for its border with the subdivision
road, which flared as the corners of Lots 67 and 68 rounded.  Lot 67 is owned
by Jack and Doris Prescott, and Lot 68 is owned by Joseph and Marjorie Sylvester. 

Turner purchased two interior lots in the subdivision. 
The sales brochure produced by the developer stated that all residents of the
subdivision “regardless of location, are guaranteed accessibility rights of
the Lake and the use of the water.”  Turner began to use the access path in
question during the 1960s and has continued his use of the access. 

In the mid-1970s, the developer issued a deed to
the homeowners’ association granting it ownership of the access.  At some point
in time, Oconee County began maintenance of the subdivision’s streets.  The
subdivision’s streets were paved but the access was not.  The county did, however,
mow the access when it mowed other areas in the subdivision.  In 1980, the homeowners’
association placed a gate on the access, and the county soon thereafter ceased
mowing the area.  Turner was provided with a key to the gate and continued having
use of the access. 

After the gate’s erection, the Sylvesters and Prescotts
began planting shrubbery, trees, and other vegetation along the borders of the
access.  The homeowners’ association later passed a resolution declaring the
access a “greenway.”  Thereafter, Turner filed this action against the county,
the homeowners’ association, and the Sylvesters and Prescotts.

LAW/ANALYSIS

I.  Turner’s Appeal

a.     Summary Judgment for Oconee County

Turner first argues the
court erred in granting Oconee County’s motion for summary judgment.  He contends
there is evidence the access was dedicated as a public road or that it was accepted
as such by the county.  We disagree.

“The determination of whether
a road has been dedicated to public use is one in equity.  Therefore, this court
may find facts in accordance with its own view of the preponderance of the evidence.” 
Vick v. South Carolina Dept. of Transp., 347 S.C. 470, 477, 556 S.E.2d
693, 697 (Ct. App. 2001) (internal citation omitted).

“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.”  Mack v. Edens, 320 S.C. 236, 239, 464 S.E.2d
124, 126 (Ct. App. 1995) (internal citation omitted). 

The record indicates the
developer created the access with the intent to provide lake access to the subdivision’s
residents.  The access path was identified on the plat in a different fashion
than were the roads, which were intended to be dedicated to public use.  The
access has been limited to the residents of the subdivision, as is evident by
the locked gate on the path that only residents have keys to open. Additionally,
the record contains no evidence of public acceptance of the access as a dedicated
road.  Neither Oconee County nor the general public accepted the access either
expressly or implicitly.  There was no evidence presented that it was used by
the general public.  Additionally, although the county mowed the access for
a short period of time during the 1970s, it never paved the access, it did not
have a key to the gate, and it ceased mowing the access when the gate was erected. 
The record clearly demonstrates the access was never intended for public use
and the county did not accept it as public property.

b.     Metes and Bounds of the Access

Turner next argues the trial
court erred in not declaring the metes and bounds of the access path and in
not requiring the Sylvesters and Prescotts to remove their alleged encroachments. 
Any ruling by the master on the metes and bounds of the access would have been
superfluous as the plat filed by the developer clearly established the access
as being 40 feet wide.  Thus, the homeowner’s association, charged by the master
with maintaining the access, does not have the authority to allow others to
impede any subdivision homeowner from using the full 40 feet width of the access. 
We therefore modify the master’s order and direct the homeowners’ association
to ensure the entire 40 feet width of the access is available to all homeowners
in the subdivision. 

II.  Prescotts’
Appeal

a.     Persons with Access Rights

The Prescotts argue the
trial court erred in finding that all property owners of Bayshore Subdivision
have the right to use the access path because Turner did not raise the issue
in his pleadings.  We find no error.

Although Turner did not
specifically assert the rights of all subdivision residents to use the access,
his complaint did request that it be declared a public road.  Furthermore, in
their answer and counterclaims the Prescotts asserted the access was limited
to members of the homeowners’ association.  It is clear from the pleadings of
the parties as well as the arguments presented during the hearing that both
Turner and the Prescotts implicitly raised the issue of whether all members
of the subdivision had the right to use the access.  Accordingly, we find the
issue of whether the property owners of the subdivision had access to the access
path was properly before the master. 

b.     Adverse Possession Counterclaims

Additionally, the Prescotts
maintain the court erroneously dismissed their counterclaims for adverse possession
of a portion of the access where their driveway crosses it.  We find no error.

“To constitute adverse possession,
which results in obtaining title to the disputed property, the possession must
be continuous, hostile, open, actual, notorious, and exclusive for the requisite
period.”  Getsinger v. Midlands Orthopaedic Profit Sharing Plan, 327
S.C. 424, 430, 489 S.E.2d 223, 226 (Ct. App. 1997). 

[A]dverse possession requires hostile possession, that is,
possession with intention to dispossess the owner.  The mere possession of land,
however, does not in and of itself manifest hostility toward the landowner.
. . . Possession under a mistaken belief that property is one’s own and with
no intent to claim against the property’s true owner cannot constitute hostile
possession. 

Lusk v. Callaham, 287 S.C. 459, 461, 339
S.E.2d 156, 159 (Ct. App. 1986) (internal citations omitted), limitation
of holding recognized by Perry v. Heirs at Law & Distributees of
Gadsden, 316 S.C. 224, 225-26, 449 S.E.2d 250, 251 (1994) (noting Lusk
holding is limited to boundary line disputes and does not apply to tract disputes). 
“[T]he occupancy of land beyond the true boundary line, by an encroaching owner,
does not form a basis for adverse possession, unless the encroachment is made
with an intention to claim and hold adversely.  Where one [who] is in the possession
of land up to a supposed line intends to claim only to the true line, his possession
is not hostile and will not ripen into title.”  Lynch v. Lynch, 236 S.C.
612, 623, 115 S.E.2d 301, 306-07 (1960).

          Mr. Prescott testified at trial that he
believed the portion of his driveway that encroached upon the flared portion
of the access belonged to him.  The contest, therefore, is between adjoining
landowners, making it a true boundary dispute.  Prescott testified that he did
not learn that this portion of his driveway was a part of the access until Turner
filed this action.  Thus, Prescotts’ possession of the disputed area across
his true boundary cannot be considered hostile.  Additionally, Prescott testified
the vegetation and other improvements he made to the path were for the benefit
of members of the association.  Accordingly, the master properly dismissed the
Prescotts’ adverse possession claim.

AFFIRMED AS
MODIFIED.

CURETON and HOWARD, JJ., concur.