Anderson v. Town of Hemingway

Decision Date30 August 1977
Docket NumberNo. 20501,20501
Citation269 S.C. 351,237 S.E.2d 489
CourtSouth Carolina Supreme Court
PartiesF. J. ANDERSON, Jr., Respondent, v. TOWN OF HEMINGWAY, a Municipal Corporation created by and under the laws of the State of South Carolina, Appellant.

O'Bryan & O'Bryan, Kingstree, and Nexsen, Pruet, Jacobs & Pollard, Columbia, for appellant.

Harrell & Brown, Kingstree, for respondent.

NESS, Justice:

This is a declaratory judgment action instituted by respondent F. J. Anderson, Jr., to determine whether or not appellant, Town of Hemingway, possessed an easement across respondent's land. Appellant claims a right-of-way over respondent's property, fifty feet in width, for a street known as Magnolia Street asserting a dedication of the "street" to the public more than fifty years ago. It is conceded that the alleged street has never been opened for travel.

The trial court, without a jury, held that respondent owned his lot free of any right of way. We affirm.

The basic question is whether there was a dedication of Magnolia Street in the sense of an offer by the owner of the lot, and an acceptance thereof by the Town of Hemingway. In this connection, dedication involves not only an offer to dedicate, but an acceptance thereof, either express or implied, by a public authority having power to pass upon the matter.

It is generally accepted that to constitute a valid dedication, there must not only be an intention on the part of the owner to dedicate a property to the public use, but that such intention must be manifested in a positive and unmistakable manner. It need not be made by deed or other writing, but may be effectually and validly made by acts or verbal declarations. It also may be implied from long use by the public of the land claimed to be dedicated. Absent an express gift, one who asserts a dedication must demonstrate conduct on the part of the landowner clearly, convincingly and unequivocally indicating his intention to create a right in the public. Derby Heights, Inc. v. Gantt Water & Sewer District, 237 S.C. 144, 116 S.E.2d 13 (1960); Shia v. Pendergrass, 222 S.C. 342, 72 S.E.2d 699 (1952).

Since we know that individual owners of property are not apt to transfer it to the community or subject it to public servitude without compensation, the burden of proof to establish dedication is upon the party claiming it. Tyler v. Guerry, 251 S.C. 120, 160 S.E.2d 889 (1968); 23 Am.Jur.2d, Dedication, § 75; Littlefield v. Hubbard, 124 Me. 299, 128 A. 285, 38 A.L.R. 1306; MacCorkle v. City of Charleston, 105 W.Va. 395, 142 S.E. 841, 58 A.L.R. 231.

"Dedications being an exceptional and a peculiar mode of passing title to interest in land, the proof must usually be strict, cogent, and convincing and the acts proved must be inconsistent with any construction other than that of dedication." Seaboard Air Line Ry. Co. v. Town of Fairfax, 80 S.C. 414, 430, 61 S.E. 950, 956 (1908).

These general principles of law are not contested. It is the application of them to the facts here existing which leads to this controversy.

A series of maps were introduced by appellant which purported to show the existence of Magnolia Street across respondent's lot. Conversely, respondent introduced a plat and a map which do not show Magnolia Street crossing respondent's lot. Appellant sought to establish the existence of a public right-of-way by introducing evidence of a sewer line which transverses respondent's land. However, the sewer line does not follow the alleged street but crosses over another portion of respondent's lot.

There was a failure to introduce any evidence demonstrating a dedication, either express or implied, by respondent or a predecessor in title. The burden of proving a dedication is not met simply by introducing maps which show the alleged...

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12 cases
  • Town of Kingstree v. Gary W. Chapman, Jr., Terilyn J. Mcclary, Waccamaw Hous., Inc.
    • United States
    • South Carolina Court of Appeals
    • July 24, 2013
    ...Id. (citation omitted). “[T]he burden of proof to establish dedication is upon the party claiming it.” Anderson v. Town of Hemingway, 269 S.C. 351, 354, 237 S.E.2d 489, 490 (1977). “No particular formality is necessary to effect a common law dedication.” Boyd v. Hyatt, 294 S.C. 360, 364, 36......
  • Hoogenboom v. City of Beaufort
    • United States
    • South Carolina Court of Appeals
    • February 19, 1992
    ...who owned the land intended to dedicate it to a public use and that the dedication was accepted by the public. Anderson v. Town of Hemingway, 269 S.C. 351, 237 S.E.2d 489 (1977). The owner's intention to dedicate must be manifested in a positive and unmistakable manner. Id. A dedication nee......
  • Tupper v. Dorchester County
    • United States
    • South Carolina Supreme Court
    • April 16, 1997
    ...The payment of taxes on disputed property is evidence contrary to the intent to dedicate property to the public. Anderson v. Hemingway, 269 S.C. 351, 237 S.E.2d 489 (1977). It is the duty of the fact finder to determine whether or not the public dedication has been accepted. McAllister v. S......
  • State v. Beach Co.
    • United States
    • South Carolina Supreme Court
    • September 21, 1978
    ...dedication, we recite briefly the law of dedication. The burden of proof is upon the party claiming the dedication. Anderson v. Town of Hemingway, S.C., 237 S.E.2d 489 (1977): It is generally accepted that to constitute a valid dedication, there must not only be an intention on the part of ......
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