Epps v. Freeman

• Decision Date: 10 October 1973
• Docket Number: No. 19702,19702
• Citation: 200 S.E.2d 235,261 S.C. 375
• Court: South Carolina Supreme Court
• Parties: Claude M. EPPS et al., Appellants, v. William H. FREEMAN et al., Respondents.

Page 235

200 S.E.2d 235

261 S.C. 375

Claude M. EPPS et al., Appellants, v. William H. FREEMAN et al., Respondents.

No. 19702.

Supreme Court of South Carolina.

Oct. 10, 1973.

Claude M. Epps, Jr., and Howell V. Bellamy, Jr., Myrtle Beach, and H. T. Abbott, Conway, for appellants.

J. Reuben Long and John C. Thompson, Conway, and James P. Stevens, Loris, for respondents.

BRAILSFORD, Justice:

In 1945, J. E. Bryan and H. G. Cushman, under whom plaintiffs claim as heirs or devisees, subdivided a tract of land at Myrtle Beach, South Carolina, lying between U.S. Highway #17, also known as The Kings Highway, on the northwest and the Atlantic Ocean on the southeast. The subdivision plat, dated June, 1945, was duly recorded in the office of the Clerk of Court, and all of the deeds out of the grantors contained identical building restrictions appropriate to a residential development. The seaward subdivision line is approximately seventy-five feet northwest of the 'High Tide Line' of the Atlantic Ocean. Although it is not so marked or designated on the plat, the intervening beach area was, by the inauguration of the plan, the recordation of the plat and the sale of lots, dedicated to the lot owners and public for common enjoyment.

All of block 1 and lots 3--7 of block 2 extend from Ocean Boulevard on the northwest to the dedicated beach area. However, lots 1 and 2 of block 2 and all of blocks 3, 4 and 5 each of which includes four lots, are separated from the seaward boundary of the subdivision by Withers Swash, in irregularly shaped arm of the sea. The southern terminus of the Swash is in block 2 at the northern sideline of lot 3. On the north, the Swash extends beyond the subdivision. At some points the map depicts the Swash as slightly overlapping or contiguous to the seaward lot lines. For the most part, however, the map shows some fastland between the lot lines and the Swash, varying from about one hundred feet in block 5, where the Swash is at its narrowest, to a very narrow strip in blocks 2 and 3. The map also shows a strip of such land averaging about fifty feet wide, between the Swash and the dedicated beach area.

All of the lots were sold within two years after the subdivision was opened in 1945. The fastland bordering Withers Swash was not sold, nor offered for sale nor, with the exception of one 1965 incident, ¹ was any claim thereto made by the subdividers or their successors until this action was commenced in March of 1968.

The plaintiffs claim under the subdividers by will or inheritance. The defendants, respectively, are the owners of lots 1 and 2 of block 2, and of the lots in blocks 3, 4 and 5 as shown on the subdivision plat. The complaint alleges that plaintiffs own and are in possession of the property lying between the seaward lines of defendants' lots, as shown on the plat, and the dedicated beach area. Alleging further that defendants claim some interest therein constituting a cloud on plaintiffs' title, the complaint seeks an adjudication that defendants have no such interest and quieting plaintiffs' title to the property claimed by them.

The defendants have no common interest in all of the lots, which at the commencement of the action were held in some ten separate and distinct ownerships. We disregard the obvious misjoinder of causes of action, which has been waived by the defendants, but which produced hopeless confusion in the trial below and contributes to the difficulty of review here.

Ten answers were filed. One of these has gone out of the case by settlement. With immaterial exceptions, the remaining nine raise identical defenses, to wit:

First Defense: General denial.

Second Defense: Title by adverse possession to the land in front of the lot or lots of the answering defendants.

Third Defense: Plaintiffs are estopped from claiming property in front of defendants' lots because lots were shown on plat as oceanfront lots, and were represented by subdividers and their selling agent as oceanfront lots and were purchased by defendants and their predecessors as such.

Fourth Defense: Title by accretion.

Fifth Defense: Dedication to the defendants and to the public in general of all land between the defendants' lot lines and the Atlantic Ocean.

Sixth Defense: Defendants are entitled to benefit of receiprocal negative easements which would be violated by plaintiffs' development of property between defendants' lots and ocean.

A Seventh Defense was, in effect, stricken by trial judge and presents no issue on appeal.

On a former appeal, we held that defendants were entitled to a trial by jury of the issue of paramount title raised by their answers. Bryan v. Freeman, 253 S.C. 50, 168 S.E.2d 793 (1969). On this trial, the plaintiffs made appropriate motions to test the legal sufficiency of the evidence to raise a jury issue as to title in the defendants. With minor exceptions, these motions were overruled, and the judge submitted all issues to the jury, stating that the equitable issues were being submitted only for the guidance of the court.

The deliberations of the jury resulted initially in a verdict on the back of the complaint 'for the defendants.' Verdicts were also returned on the back of each answer. Most of these were 'for the defendant' or 'defendants,' as the case might be, but some were 'for the plaintiffs.' The court refused to accept the verdict written on the complaint, telling the jurors that this verdict would have been appropriate only if they had found in favor of all of the defendants, which they had not done as shown by the verdicts for plaintiffs on some of the answers. As directed by the court, the foreman of the jury voided the verdict on the complaint, and only the verdicts on the various answers were published.

After inconsistencies in these verdicts were pointed out and corrected, leaving a verdict in favor of plaintiffs only as to the defendant M. N. Carroll, the other verdicts being for the defendants, the court took under advisement plaintiffs' motion for judgment notwithstanding the verdicts or for a new trial as to the other defendants, and like motions by the defendant Carroll.

In passing upon these motions, the court reversed its trial ruling that the general verdict for the defendants, endorsed upon the complaint, must yield to the inconsistent verdicts for plaintiffs which were endorsed upon the answers of certain defendants. In so doing, the court ruled that the denials contained in the answers placed plaintiffs' claim of title in issue, and that the general verdict for defendants decided this issue against plaintiffs. The court also resolved all other issues, both legal and equitable, in favor of the defendants, including the defendant Carroll.

The plaintiffs have appealed on 132 exceptions which they argue in a brief of 176 pages under forty-seven main headings. The tediousness of the record and briefs is partly accounted for by the parties' attempts to present separately the multiple causes of action jumbled in plaintiffs' complaint. Hopefully, the appeal can be disposed of without our backtracking this course.

It was clearly error for the court to undertake to reinstate as the verdict of the jury on the issue of plaintiffs' proof of title, the general verdict for the defendants because--if for no other reason--this verdict was not received by the court at the trial as that of the jury. Kneece v. Hall,138 S.C. 157, 135 S.E. 881 (1925).

Conceiving that the evidence in favor of the defendant Carroll on the issue of adverse possession and on that of accretion was equally as strong as that in favor of two other defendants whose identical claims had been sustained by the jury, the court granted judgment notwithstanding the verdict to Carroll on these issues. Again the error is clear. The inconsistency in the verdicts was ground for a new trial, but not for judgment Non obstante veredicto.

These errors will require a new trial if, but only if, the evidence was sufficient to raise an issue or issues for the jury on the defendants' pleas of paramount title, as to which alone the defendants were entitled to trial by jury.

The statement of the case quite clearly concedes that plaintiffs and defendants claim from a common source and that deeds in evidence to the subdividers included the lands shown on the 1945 subdivision plat, by which the defendants purchased their respective lots according to lot and block number and by which the parcels of land claimed by plaintiffs are described. Hence, the only issues for jury trial raised by the pleadings were the defendants' claims of title by adverse possession and by accretion. Except as affected by these defenses, we need not examine the sufficiency of the proof of plaintiffs' title to the fastland bordering Withers Swash in blocks 2--5, inclusive, of the subdivision. No distinct issue is raised as to title to the bed of the Swash, to the decision of which the State would be a necessary party.

It is conceded that prior to the construction of a USO building at Myrtle Beach in the early 1940's Withers Swash was an arm of the sea in which the tide ebbed and flowed. The mouth of the Swash was some distance north of 10th Avenue, ² the northeastern boundary of the subdivision. From it the Swash extended both north and south, roughly parallel with the shore. With the construction of the USO building, a bulkhead was built in the Swash at a point south of the mouth and north of 10th Avenue. This effectively blocked the ebb and flow of the tide south of the bulkhead, and created what is referred to in the record as a dead swash. However, the channel through which the tide formerly ebbed and flowed was from time to time filled by the waters of unusually high tides, which were trapped there by the bulkhead. The testimony indicates that when the plat was made and the lots sold, the Swash area was essentially submerged land, and it was so represented on the plat. These waters were commonly resorted to...