Darlington County v. Perkins, 20539
| Decision Date | 15 November 1977 |
| Docket Number | No. 20539,20539 |
| Citation | 269 S.C. 572,239 S.E.2d 69 |
| Court | South Carolina Supreme Court |
| Parties | COUNTY OF DARLINGTON, Petitioner-Respondent, v. Bennie PERKINS, C. M. Parker, Jr., Edward H. Parker, Allard H. Parker, James C. Parker, Jack R. Parker, William R. Parker, Kathryn Parker Hopkins and Bessie Hatchell Parker, Respondents- Appellants. |
Jackson & Bell, Florence, for respondents-appellants.
Baker & Etheridge, Darlington, for petitioner-respondent.
This action was brought by the County of Darlington (County) against the owners and the lessee of a tract of land (Landowners) to determine the right of the public to use (1) a recreational area known as Whipple's Landing, which is located on the bank of Louther's Lake, and (2) a dirt road which connects a public road with the landing area.
Louther's Lake is a body of water several miles long and approximately 100 to 200 feet wide in varying places, which begins at a point adjacent to the Great Pee Dee River in Darlington County and comes out from the river and then takes a horseshoe-like arc back to the river. It is generally accepted that Louther's Lake is part of the former bed of the Great Pee Dee River which was excluded from the main course, or run, of the river when it changed courses long ago. The land area within the horseshoe-shaped arc that constitutes Louther's Lake is called Witherspoon Island. It is privately owned.
The area known as "Whipple's Landing," which is the subject of this action, is located at a point on Louther's Lake about a quarter of a mile from a paved highway known as the "Old Georgetown Stagecoach Road."
The one-quarter mile dirt road, here in contest, leads off this paved highway and goes down a hill to the landing area and across a causeway to Witherspoon Island. Whipple's Landing is a sandy, beach-like area which has been used and is still used for the purpose of launching fishing boats into Louther's Lake. The area has been used also for other recreational purposes, a meeting place for gatherings, etc., for many years.
The County's complaint alleges that the public has acquired a right-of-way in the road by virtue of an express reservation in a prior deed. It further alleges that the public has used and enjoyed the area known as Whipple's Landing for a period in excess of 20 years, and has thereby acquired rights in the area by adverse use. Finally, the complaint alleges that the State is the lawful owner of all lands from the edge of Louther's Lake to the ordinary high water mark. The County asks that the Landowners be permanently enjoined from charging a fee or interfering with the public use of the landing area, that the road leading to the lake be declared a public right-of-way, and that the State be declared the owner of the land between the lake's edge and the ordinary high water mark.
The answer of the Landowners alleges that the right-of-way to the road, reserved in the prior deed, inured solely to the benefit of the grantor therein and in no way constituted a dedication to the public. The answer alleges that public use of the road and landing was entirely permissive, and that no rights could be acquired thereby. It is alleged that the land is unenclosed, wild and unimproved, and that the public can acquire no prescriptive rights in such land through public usage. The answer further alleges that Louther's Lake is not navigable, that the State has no rights therein, and that the Landowners own to the middle of the lake. It prays that the public be declared to have no interest in either the road or the landing, and that the Landowners be allowed to make whatever use of it they wish.
The lower court heard the evidence and ruled in favor of the County, holding that the public had acquired the right, by dedication and/or prescription, to use the road as part of the county road system; that the public had acquired rights in the landing area through long public usage; and that the State owned the land bordering the lake up to the ordinary high water mark. The Landowners appeal.
The Landowners first take exception to the trial court's finding that the public had acquired the right to use the road. In support of this finding, Ernest Anderson testified that he had used the road to get to Whipple's Landing for 75-80 years, and that it had been used as a public road for that period of time. The parties stipulated that 65 people would testify that they have used Whipple's Landing and the road leading to Louther's Lake for all their lives without paying a fee for such use. James L. White, County Manager for Darlington County and former County Road Supervisor, testified that the County, to his knowledge, had maintained the road as part of the county road system since 1951. White further testified that the County worked on the road an average of 8 to 12 times per year, at the request of members of the general public.
The Landowners strenuously argue, based on Tyler v. Guerry, 251 S.C. 120, 160 S.E.2d 889 (1968), that the land encompassing the roadway is...
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...created by prescription."). The Supreme Court of South Carolina discussed both dedication and prescription in County of Darlington v. Perkins, 269 S.C. 572, 239 S.E.2d 69 (1977). Perkins involved a suit by a county against the owners of a tract of land to determine the rights of the public ......
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Dukes v. Farrell
...Coop., Inc., Op. No. 27674 (S.C. Sup. Ct. filed Nov. 2, 2016) (Shearouse Adv. Sh. No. 42 at 12, 15) (quoting Darlington Cty. v. Perkins, 269 S.C. 572, 576, 239 S.E.2d 69, 71 (1977)). In Simmons, our supreme court clarified the third element of a prescriptive easement by stating, "[A]dverse ......
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Simmons v. Berkeley Elec. Coop., Inc.
...of 20 years; (2) the identity of the thing enjoyed; and (3) the use [was] adverse under claim of right." Darlington Cnty. v. Perkins , 269 S.C. 572, 576, 239 S.E.2d 69, 71 (1977). "[W]hen it appears that claimant has enjoyed an easement openly, notoriously, continuously, and uninterruptedly......
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...public character of a road and supports a finding that those who use the road may acquire an easement. See Darlington County v. Perkins, 269 S.C. 572, 575, 239 S.E.2d 69, 70-71 (1977) ("We are of the view, however, that the continuous and widespread public usage of the road for at least 50 ......