Boyd v. Hyatt

Decision Date15 December 1987
Docket NumberNo. 1082,AMC-J,1082
Citation294 S.C. 360,364 S.E.2d 478
CourtSouth Carolina Court of Appeals
PartiesWilliam L. BOYD, III, and Standard Parts Co., Inc., Respondents-Appellants, v. C. Kenneth HYATT and Ken Hyatteep, Renault, Inc., Appellants-Respondents. . Heard

Randall M. Chastain, Columbia, for appellants-respondents.

Thomas E. McCutchen and Evans Taylor Barnette of Whaley, McCutchen, Blanton & Rhodes, Columbia, for respondents-appellants.

CURETON, Judge:

William L. Boyd, III (Boyd) owns and operates Standard Parts Co., Inc. Boyd brought this action against Kenneth Hyatt who owns and operates Ken Hyatt AMC-Jeep, Renault, Inc. for a court determination that he has a right of ingress and egress across a 25 foot wide paved strip of property in front of his store. Boyd sought damages for Hyatt's obstruction of the paved strip and for an order requiring Hyatt to restore the strip to its former condition. Both parties appeal from an order finding Boyd has an easement over the strip, but Hyatt's use of the strip was not unreasonable. We affirm in part, reverse in part and remand.

Boyd operates an automotive parts store on a .293 acre tract of land located on Greystone Boulevard north of the City of Columbia. Greystone Boulevard is a controlled access highway. In conjunction with the sale of the .293 acre tract to Boyd's predecessor in title, the seller-developer paved a strip of land 25 feet wide to be used as a frontage road along the western border of Boyd's property. The present terminus of this paved strip is the southwestern corner of Boyd's property. From that point the frontage road extends north to Broad River Road. 1 Boyd's and the traveling public's use of this paved strip for ingress and egress went uninterrupted from 1972 until 1985. In the summer of 1985, Hyatt purchased the tract located to the south of Boyd's property and constructed his automobile dealership. Hyatt placed a large sign on the paved strip and displayed cars on the strip. He also dug up a portion of the strip. These actions effectively precluded Boyd and the public from using the strip for ingress and egress to Boyd's business.

This matter was heard non-jury. The trial judge concluded the 25 foot strip is a limited access road and a dedicated public right of way. He determined Boyd had an appurtenant easement by necessity over and across the road and Hyatt acquired his property subject to the rights of Boyd and the public to use the strip for ingress and egress. He ordered Hyatt to remove all obstructions within the roadway, except his sign. He refused to order Hyatt to restore the pavement to its former condition or award damages to Boyd for Hyatt's obstruction of the road. All parties appeal.

Hyatt argues on appeal the trial court committed reversible error in the following areas: (1) requiring the parties to include in the Statement of the Case contested matters; (2) finding the paved strip was dedicated to public use; (3) finding Boyd had an easement by necessity; and (4) finding an express grant of an easement appurtenant. Boyd argues the trial court erred in the following areas: (1) failing to find Hyatt's sign obstructed the roadway; (2) failing to find the sign is a nuisance; (3) failing to require Hyatt to restore the pavement to its prior condition; and (4) failing to award him damages for lost profits resulting from interference with his use of the roadway.

HYATT'S APPEAL

Hyatt claims the evidence does not sustain the trial judge's finding that the parcel in question was ever intended to be dedicated to public use. We disagree. No particular formality is necessary to effect a common law dedication. 23 Am.Jur.2d Dedication Section 27 (1983). All that is required is that an owner must have expressed an intention to dedicate his property to public use in a positive and unmistakable manner. Anderson v. Town of Hemingway, 269 S.C. 351, 237 S.E.2d 489 (1977). A dedication "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." Anderson, 269 S.C. at 354, 237 S.E.2d at 490. An intention to dedicate may be implied from the circumstances. County of Darlington v. Perkins, 269 S.C. 572, 239 S.E.2d 69 (1977). "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." 23 Am.Jur.2d Dedication Section 27 (1983); See, County of Darlington, 269 S.C. at 575, 239 S.E.2d at 71. 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. Derby Heights, Inc. v. Gantt Water & Sewer District, 237 S.C. 144, 116 S.E.2d 13 (1960).

The determination of the existence of an easement is a question of fact in a law action. Jowers v. Hornsby, 292 S.C. 549, 357 S.E.2d 710 (1987). In an action at law tried without a jury, the judge's findings of fact will not be disturbed on appeal unless there is no evidence to support his findings. Jowers, 292 S.C. at 552, 357 S.E.2d at 711. We find evidence to support the judge's finding of an intent to dedicate. A 1972 composite plat of the Greystone development shows a 25 foot strip extending from Broad River Road to a point south of the Boyd tract. The strip is labeled "easement" at a point north of the Boyd tract. While Hyatt argues this plat was not recorded, it is referred to in a December 20, 1983 plat made for the developer and the 1983 plat is referred to in the deed from the developer to Hyatt's grantor. Moreover, the 1983 plat shows the 25 foot strip as a shaded area with an indication that it was a "limited access road." Further, the president of the developer corporation testified the corporation paved the strip over or near an old dirt road that provided access to a house located south of Boyd's property and the corporation intended to dedicate the strip as a public road. Boyd testified to his and the public's use of the strip as a road since 1972. Finally, there is contained on the deed to Hyatt an exception for "easements that may appear of record, in the recorded plats(s), or on the premises." The deed from the original developer to Hyatt's grantor contains the following language:

together with all right, title or interest the Grantor may have for the use of the Service Road and the property between right-of-way of Greystone Boulevard-Rd P-4010 and property now or formerly of William L. Boyd, III, and Ben K. Summersett, Jr. et al., as shown on a plat entitled "Property Survey for the Riverland Development Corporation," dated December 20, 1983, prepared by B.P. Barber and Associates, Inc. for purposes of ingress and egress to and from Greystone Boulevard and Broad River Road for the benefit of Grantee, its Successors and Assigns and for the benefit of the property of Grantee, its Successors and Assigns forever, subject, however, to any right of other landowners which may exist and Grantor shall have no obligation to maintain said property.

Hyatt argues there is no evidence of public acceptance of the strip as a road for dedication purposes. We disagree. No formal acceptance is necessary to constitute a valid dedication. Woodside Mills v. United States, 160 F.Supp. 356 (D.C.S.C.1958), aff'd. 260 F.2d 935 (4th Cir.1958). Acceptance may be implied by the public's continuous use of the property. Caston v. City of Rock Hill, 107 S.C. 124, 92 S.E. 191 (1917); Woodside Mills, 160 F.Supp. at 359; 26 C.J.S. Dedication Section 37 (1956); 23 Am.Jur.2d D...

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