Ex Parte: DeBordieu v. The Belle W. Baruch Foundation

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Ex Parte: DeBordieu Colony Community Association,
Inc., Appellant,

In Re: The Belle W. Baruch Foundation, Plaintiff,

v.

The State of South Carolina, Defendant,

Of Which The Belle W. Baruch Foundation is the
Respondent.

Appellate Case No. 2020-001166

Appeal From Georgetown County
Paul M. Burch, Circuit Court Judge

Opinion No. 6043
Heard October 10, 2023 – Filed January 17, 2024

REVERSED

Brian C. Duffy, Julie Lauren Moore, Robert Lewis
Wehrman, and Patrick Coleman Wooten, all of Duffy &
Young, LLC, of Charleston, for Appellant.

George Trenholm Walker, Thomas P. Gressette, Jr., and
Jennifer Sue Ivey, all of Walker Gressette & Linton, LLC,
of Charleston, for Respondent.
HEWITT, J: DeBordieu Colony Community Association, Inc. (DeBordieu) is a
private coastal community in Georgetown County. DeBordieu sought intervention
as a matter of right or, alternatively, permissive intervention in a lawsuit brought to
determine the rightful titleholder to roughly 8,000 acres of marshlands abutting
DeBordieu's southern boundary. The circuit court denied intervention under both
theories.
Precedent and Rule 24(a) of the South Carolina Rules of Civil Procedure set a liberal
standard for intervention. Denying intervention here was inconsistent with that
standard. For that reason, as explained below, the order denying DeBordieu's motion
to intervene is reversed.

FACTS

The Belle W. Baruch Foundation (Baruch) was created by the Last Will and
Testament of Belle W. Baruch. It owns approximately 8,000 acres of "high ground"
in Georgetown County.
The marshland over which Baruch claims title is adjacent to Baruch's high ground.
Baruch claims it owns this marshland under the original King's Grant.
DeBordieu's southern boundary creates the northern boundary of the disputed
marshland. DeBordieu's members have a history of using the marshland for shellfish
harvesting, crabbing, wade fishing, and similar recreational activities. In the early
1970s, DeBordieu created a system of creeks and canals allowing its members access
to the marshland and to the Atlantic Ocean. DeBordieu has periodically dredged its
canals to maintain its access to the marshland for recreational purposes.
Baruch began this case by filing a declaratory judgment action against the State.
Baruch claimed it holds fee simple title to the marshlands and sought an order
declaring it the rightful owner.
The State answered, asserted its status as the presumptive titleholder of all
marshlands, and counterclaimed that the public held a prescriptive easement over
the marshlands. The State alternatively claimed that the property had been dedicated
to the public.

DeBordieu filed a timely motion to intervene, opposed Baruch's claim of fee simple
title over the marshlands, and asserted its own claim for a prescriptive easement.
The State consented to DeBordieu's intervention. Baruch objected. The circuit court
denied DeBordieu's motion after a hearing. This appeal followed.
ISSUE

Did the circuit court err in denying DeBordieu's motion to intervene?

STANDARD OF REVIEW

We review circuit court decisions regarding intervention under the abuse of
discretion standard. In re Horry Cnty. State Bank, 361 S.C. 503, 507,
604 S.E.2d 723, 725 (Ct. App. 2004) (citing S.C. Tax Comm'n v. Union Cnty.
Treasurer, 295 S.C. 257, 260, 368 S.E.2d 72, 74 (Ct. App.1988)). As precedent
notes, the term "abuse of discretion" is "an old unfortunate statement" and is really
just shorthand for describing that "the appellate [c]ourt is simply of the opinion that
there was commission of an error of law in the circumstances." State v. Wallace,
440 S.C. 537, 541 n.2, 892 S.E.2d 310, 312 n.2 (2023) (quoting Barrett v. Broad
River Power Co., 146 S.C. 85, 96, 143 S.E. 650, 654 (1928)). An error of law
includes failing to consider all of the factors relevant to a particular decision.
See e.g., Burke v. Republic Parking System, Inc., 421 S.C. 553, 560-61, 808 S.E.2d
626, 629 (Ct. App. 2017) (finding the circuit court's failure to weigh all relevant
factors in its order was an abuse of discretion).

INTERVENTION OF RIGHT
Our supreme court has articulated a broad view of the Rule 24(a)(2) standard,
explaining:
We interpret the rules to permit liberal intervention
particularly [when] . . . judicial economy will be promoted
by the declaration of the rights of all parties who may be
affected. Accordingly, we must consider the pragmatic
consequences of a decision to permit or deny intervention
and avoid setting up rigid applications of Rule 24(a)(2).
Berkeley Electric Co-op., Inc. v. Town of Mt. Pleasant, 302 S.C. 186, 189,
394 S.E.2d, 712, 714 (1990).
Rule 24(a)(2) requires a court to grant intervention:

[W]hen the applicant claims an interest relating to the
property or transaction which is the subject of the action
and he [or she] is so situated that the disposition of the
action may as a practical matter impair or impede his [or
her] ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties.

Rule 24(a)(2), SCRCP. The motion to intervene must also be timely.
Berkeley Electric, 302 S.C. at 189, 394 S.E.2d at 714.
DeBordieu easily satisfies three of the four requirements listed above. First, it is
undisputed that DeBordieu timely filed its motion. Second, through its counterclaim
for a prescriptive easement, DeBordieu is unquestionably claiming "an interest" in
the disputed property. Third, barring DeBordieu impairs or impedes DeBordieu's
ability to protect its claimed interest.

The "impairment" factor is not designed to be a difficult standard. As described in
Berkeley Electric, "a party need not prove that it would be bound in a res judicata
sense by the judgment, only that it would have difficulty adequately protecting its
interests if not allowed to intervene." Id. at 190, 394 S.E.2d at 715. Baruch's
complaint advertises the purpose of this suit as adjudicating its rights to the
marshlands; a court order adjudicating Baruch's claimed rights would necessarily be
incomplete unless it also adjudicated DeBordieu's claim. It would be inconsistent
with our liberal application of Rule 24, and contrary to the mandate of judicial
economy, to deny DeBordieu intervention in a suit that is meant to determine the
rightful property owner of a parcel over which DeBordieu claims an easement.
Intervention as a matter of right also requires that DeBordieu's interest not be
adequately represented by existing parties. Rule 24(a)(2), SCRCP. This, too, is a
"minimal" burden and "the applicant need only show that the representation of his
interests 'may be' inadequate." Berkeley Electric, 302 S.C. at 191, 394 S.E.2d at 715
(quoting Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972)).
Here, we consider:

(1) whether the existing parties will undoubtedly make all
of the intervenor's arguments; (2) whether the existing
parties are capable and willing to make such arguments;
and (3) whether the intervenor offers different knowledge,
experience, or perspective on the proceedings that would
otherwise be absent.

Id. at 191, 394 S.E.2d at 715 (applying Sagebrush Rebellion, Inc. v. Watt, 713 F.2d
525, 528 (9th Cir. 1983)).
It is true that DeBordieu and the State similarly claim that if Baruch owns the
disputed marshlands, the marshlands are encumbered by the State's and/or
DeBordieu's prescriptive easements. It is inaccurate, however, to categorize those
easement claims as the same interest in the property. The State claims a prescriptive
easement on behalf of the public. DeBordieu claims a prescriptive easement only
on behalf of its members. Though the circuit court found that "[DeBordieu] does
not assert, nor could it, that its so-called prescriptive easement is exclusive, hence
preventing others from access over these tidelands," that requirement is not
consistent with the current governing law.
Our supreme court clarified the test for a prescriptive easement in Simmons v.
Berkeley Electric Co-op., Inc., stating "[i]n order to establish a prescriptive
easement, the claimant must identify the thing enjoyed, and show his [or her] use
has been open, notorious, continuous, uninterrupted, and contrary to the true
property owner's rights for a period of twenty years." 419 S.C. 223, 233, 797 S.E.2d
387, 392 (2016). Exclusivity is not a requirement to make a prescriptive easement
claim. The State's and DeBordieu's easement claims are independent of one another,
and are different claims requiring different proof. See Cleland v. Westvaco Corp.,
314 S.C. 508, 511, 431 S.E.2d 264, 266–67 (Ct. App. 1993) (noting an unsuccessful
argument for public rights did not necessarily defeat an individual claim for an
easement); see also Nelums v. Cousins, 304 S.C. 306, 308, 403 S.E.2d 681, 682
(1991) (finding a plaintiff's prescriptive easement claim was asserted independent of
use by others). The fact that the claims are materially different amply demonstrates
the State would not make all of DeBordieu's arguments.

ARGUMENTS AGAINST INTERVENTION
Having explained our finding that the standard for intervention is satisfied, we
address Baruch's arguments offered against intervention.
Baruch first argues that DeBordieu may not intervene because it only claims an
easement and does not claim to own the marshlands. We do not see how any statute
or precedent supports this being a meaningful distinction.

The statute authorizing Baruch to file this lawsuit against the State invites
participation by "[a]ny person claiming an interest in tidelands . . . for the purpose
of determining the existence of any right, title, or interest . . . as against the State."
S.C. Code Ann. § 48-39-220(A) (Supp. 2023) (emphasis added). An easement
"gives no title," but an easement is still "property or an interest in land."
S.C. Pipeline Corp. v. Lone Star Steel Co., 345 S.C. 151, 153, 546 S.E.2d 654, 656
(2001). DeBordieu does not claim a property interest against the State. Even so, we
do not see any reason to read the statute as trumping Rule 24, which allows anyone
claiming "an interest" in the property at the center of the action to participate.
In fact, examples abound in precedent where adjoining landowners who did not
claim to own the land in question participated in the very same kind of disputes.
See, e.g., Hoyler v. State et al., 428 S.C. 279, 833 S.E. 845 (Ct. App. 2019) (granting
the intervention of adjoining landowners in a declaratory judgment brought under
the marshland statute where the petitioning landowner disputed the neighbors'
claims to access the marsh); see also Lowcountry Open Land Tr. v. State,
347 S.C. 96, 552 S.E.2d 778 (Ct. App. 2001) (allowing the intervention of an
adjoining landowner who sought to wharf over the marsh in action for declaratory
judgment and quiet title). DeBordieu's participation may prolong the litigation by
adding an additional party, but trying to keep them out of the case seems to have
already done that. Again, Rule 24 is meant to promote judicial economy by
declaring "the rights of all parties who may be affected." Berkeley Electric,
302 S.C. at 189, 394 S.E.2d at 714.
We also consider the practical effect of denying the motion to intervene. This case
was not brought as a quiet title action, which would have required notice to and
service upon all parties known to have an interest in the property, and service on
unknown parties by way of publication. See S.C. Code Ann.
§§ 15-67-30 to - 40 (2005). Baruch brought its suit as a declaratory judgment. We
note this to punctuate a declaratory judgment's statutory requirement that "[a]ll
persons" be made parties if they have a claim or interest that would be affected and
that "no declaration shall prejudice the rights of persons not parties to the
proceeding." S.C. Code Ann. § 15-53-80 (2005). A judgment that is valid as against
the State, but not against anyone else claiming an interest in the marshlands would
not be an efficient use of judicial resources. It certainly would not give Baruch the
full rights of fee simple ownership, because it would not be binding on anyone who
was not a party to the declaratory judgment. See Wilmington, C. & A. R. Co. v.
Garner, 27 S.C. 50, 2 S.E. 634, 635 (1887) ("[T]itle ordinarily carries with it the
right to possession, which right is a conclusion of law inferred from the title in
fee . . . ."); see also Rowe v. City of Columbia, 300 S.C. 447, 388 S.E.2d 789 (1989)
(holding a non-party to a declaratory judgment action was not bound by the
declaratory judgment).
The final argument we address against intervention is Baruch's contention that
because it has not been adjudicated to own the marshlands and has not attempted to
exclude anyone from them, DeBordieu's claim to an easement is not ripe. That
argument is contrary to the tenants of property law. See Wilmington, 27 S.C. 50,
2 S.E. at 635. (emphasis in original) ("An averment by a plaintiff that he [or she] has
the legal title to certain real property as owner in fee-simple, it seems to us, in the
absence of any opposing right, set up by way of defense, would in itself prima facie
be an averment of the right to possession . . . .").

DeBordieu claims it possesses an easement. If Baruch holds title, and DeBordieu's
claim is valid, then DeBordieu would be a dominant estate holder over Baruch.
Baruch claims neither DeBordieu nor the public have a prescriptive easement over
the marshlands. The law does not require an easement holder to idly sit, waiting to
be ejected, before making a claim. Indeed, the claim of an easement is undoubtedly
a hostile act towards the subservient landowner, and Baruch's denial of any easement
is functionally a backdoor ejectment. See, e.g., Pittman v. Lowther, 363 S.C. 47,
51–52, 610 S.E.2d 479, 481 ("It is enough if [the property owner] asserts [his or her
rights] to the other party by an overt act, which, if the easement existed, would be a
cause of action. Such an assertion interrupts the would-be dominant owner's
impression of acquiescence … it shows that acquiescence was not a fact." (quoting
Garrett v. Mueller, 144 Or.App. 330, 339, 927 P.2d 612, 617 (1996))); see also, e.g.,
Chisolm v. Caines, 67 F. 285, 290 (C.C.D.S.C. 1894) (ejecting certain duck hunters
from a portion of the disputed marshlands). Not only is there a live controversy
between Baruch and DeBordieu, but DeBordieu is a real party in interest by the mere
fact that it claims an interest in the marshlands. Kiawah Resort Assocs., L.P. v.
Kiawah Island Cmty. Ass'n, Inc., 421 S.C. 538, 552, 808 S.E.2d 521, 528
(Ct. App. 2017) ("A party has standing if the party has a personal stake in the subject
matter of a lawsuit and is a 'real party in interest.'" (quoting Ex parte Gov't Emp.'s
Ins. Co. v. Goethe, 373 S.C. 132, 138, 644 S.E.2d 699, 702 (2007))).

CONCLUSION
For these reasons, the order denying DeBordieu's motion to intervene is
REVERSED.

WILLIAMS, C.J., and VERDIN, J., concur.