Cleland v. Westvaco Corp.

• Decision Date: 03 February 1994
• Docket Number: No. 2018,2018
• Citation: 314 S.C. 508,431 S.E.2d 264
• Parties: Eugene CLELAND, Appellant, v. WESTVACO CORPORATION, Respondent.
• Court: South Carolina Court of Appeals

Page 264

431 S.E.2d 264

314 S.C. 508

Eugene CLELAND, Appellant, v. WESTVACO CORPORATION, Respondent.

No. 2018.

Court of Appeals of South Carolina.

Submitted May 10, 1993.

Decided May 17, 1993.

Rehearing Denied June 24, 1993.

Certiorari Denied Feb. 3, 1994.

Darrell Thomas Johnson, Jr., Hardeeville, for appellant.

Elizabeth T. Thomas and G. Dana Sinkler, Charleston, for respondent.

LITTLEJOHN, Acting Judge:

Eugene Cleland brought an action against Westvaco Corporation, asserting a right on behalf of the public to use a road over Westvaco's land by an easement by prescription or implied dedication of the road to the public. The trial judge granted Westvaco a directed verdict on both theories. Cleland appeals. We affirm. ¹

Cleland produced evidence that for fifty years or more, members of the public have used the road which runs across Westvaco's land to reach an area of the Coosawachie River known as Mose Landing. Several users testified that the road runs through unenclosed land and they have used the road and the landing over the years without asking permission of the various owners. The users made no attempt to conceal their use. One of the prior owners had a woods rider (a mounted security guard) who observed the users of the road and landing and did not try to evict them. At times, a private hunt club which leased the property placed barriers across the road but members of the public simply tore the barriers down. No one ever took any legal action against those who removed the barriers, or to exclude the users from the road. There was also no evidence of any public maintenance of the road.

I.

At the close of Cleland's case, the trial judge granted Westvaco a directed verdict on Cleland's claim of right under an implied public dedication. The trial judge noted that proof of an implied public dedication must be strict, cogent and convincing and the acts proved must be inconsistent with any construction other than dedication. The trial judge found that even in the light most favorable to Cleland the evidence did not give rise to the inference of dedication. The judge added that dedication cannot be implied from permissive recreational use, even though it is extensive. Cleland argues this ruling was in error. We disagree.

An owner of land must express an intention to dedicate his property to public use in a positive and unmistakable manner before a dedication may be perfected. Helsel v. City of North Myrtle Beach, 307 S.C. 24, 413 S.E.2d 821 (1992). The owner's intent to dedicate may be implied from long public use of the land to which the owner acquiesces. Hoogenboom v. The City of Beaufort, Op. No. 1885 --- S.C. ----, ----, 433 S.E.2d 875 (Ct.App.1992) (Davis Adv.Sh. No. 24 at 13). Nevertheless, dedication is an exceptional mode of passing an interest in land, and proof of dedication must be strict, cogent and convincing. Id. The acts proved must not be consistent with any construction other than that of a dedication. Id. Dedication is not implied from the permissive, sporadic and recreational use of the property, even though some of it has been used extensively. State v. Beach Co., 271 S.C. 425, 248 S.E.2d 115 (1978).

We agree with the trial judge that Cleland put forth no evidence which would create a jury issue as to implied dedication of the land to the public under the standards described in Helsel and Hoogenboom. The record does not contain evidence that any of the successive owners of this property clearly, convincingly, or unequivocally intended to dedicate the property for public use in a positive or unmistakable manner. Boyd v. Hyatt, 294 S.C. 360, 364 S.E.2d 478 (Ct.App.1988). Accordingly, Cleland failed to carry his burden of proving implied dedication, and the trial judge correctly directed a verdict for Westvaco. The acts Cleland established, that is, the long-term public recreational use of the road to reach Mose Landing, were not sufficient to establish implied dedication. Accordingly, we affirm the trial judge's grant of Westvaco's directed verdict motion on this issue.

II.

At the close of all of the evidence, Westvaco moved for a directed verdict on Cleland's claim that he had a prescriptive easement to use the property, or that a prescriptive easement arose for the public generally. The trial judge ruled that since Cleland asserted...