Mack v. Edens

• Decision Date: 12 September 1995
• Docket Number: No. 2418,2418
• Citation: 464 S.E.2d 124,320 S.C. 236
• Court: South Carolina Court of Appeals
• Parties: Basil P. MACK, Appellant, v. Robert M. EDENS, Hazel Platt and Douglas Platt, Defendants, of whom Robert M. Edens is Respondent. . Heard

Page 124

464 S.E.2d 124

320 S.C. 236

Basil P. MACK, Appellant, v. Robert M. EDENS, Hazel Platt and Douglas Platt, Defendants, of whom Robert M. Edens is Respondent.

No. 2418.

Court of Appeals of South Carolina.

Heard Sept. 12, 1995.

Decided Nov. 13, 1995.

S. Jahue Moore, of Kirkland, Wilson, Moore, Allen, Deneen & Taylor, West Columbia, for appellant.

Douglas N. Truslow, Columbia, for respondent.

CONNOR, Judge:

Basil P. Mack brought this declaratory judgment action against Robert M. Edens alleging Edens had wrongfully constructed a barrier across the dirt road leading to his house to keep Mack from using it. He contended the road had been impliedly dedicated to the public. ¹ Edens answered and counterclaimed, requesting an injunction preventing Mack from using the roadway and seeking damages for trespass. The trial court held the roadway had not been dedicated to the public, enjoined Mack from entering Edens' land without permission, and awarded Edens $1,000 compensatory and $3,000 punitive damages. Mack appeals. We affirm in part and reverse in part.

The dispute in this case involves a one-lane unpaved road near Gaston in Lexington County. This dirt road begins at South Carolina Highway 65 and proceeds in a southerly direction across the property of Hazel and Douglas Platt, then across the property of Edens, and onto property owned by Mack. The Platt, Edens, and Mack properties consist largely of undeveloped woodland. Only Mack actually lives in a home on the property.

Mack bought his tract of land in 1978 from the estate of Newlin Mack, a distant relative. Edens acquired his property from his father's estate in 1982. The dirt road at issue, which is more than fifty years old, existed before either Mack or Edens acquired their land. Mack has always used the road to get to and from his property.

Mack and Edens first began quarreling in 1988, when Mack brought an action to enjoin Edens from letting water from his pond flow onto Mack's land. In that case the trial judge denied injunctive relief on the ground of laches. This court reversed and remanded for entry of an order of injunction barring Edens from allowing water to flow onto Mack's property. Mack v. Edens, 306 S.C. 433, 412 S.E.2d 431 (Ct.App.1991). After that lawsuit, Edens told Mack he could no longer use his half of the dirt road. When Mack continued to use the road, Edens posted "No Trespassing" signs and wrote Mack a letter requesting that he stay off his property. Mack continued to use the road. Eventually, Edens erected a berm across the road. Mack removed the berm, continued using the road, and eventually brought the instant action against Edens.

At trial, several witnesses testified the dirt road has historically been used by the public for various purposes, including: to deliver mail; to travel to a saw mill and a flour mill; to swim, fish, and attend baptismal services and school parties at a pond near Mack's; to erect and maintain public utilities; and, to have emergency access to Mack's property. The court determined the public's use of the roadway was basically recreational and religious, and concluded Mack had failed to establish an implied public dedication.

On appeal, Mack first argues the trial court erred in failing to find an implied dedication of the road. The determination of whether a roadway has been dedicated to the public is an action in equity. Tyler v. Guerry, 251 S.C. 120, 160 S.E.2d 889 (1968). As such, we have jurisdiction on appeal to find facts in accordance with our own view of the preponderance of the evidence. Townes Assoc., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

Dedication requires two elements. First, the owner must express in a positive and unmistakable manner the intention to dedicate his property to public use. Horry County v. Laychur, 315 S.C. 364, 434 S.E.2d 259 (1993). Second, there must be, within a reasonable time, an express or implied public acceptance of the property offered for dedication. Helsel v. City of North Myrtle Beach, 307 S.C. 24, 413 S.E.2d 821 (1992).

Even though a landowner must positively and unmistakably express his or her intention to dedicate property, the intent to dedicate may be implied from allowing lengthy public use of the land. Cleland v. Westvaco Corp., 314 S.C. 508, 431 S.E.2d 264 (Ct.App.1993), cert. denied, (Feb. 3, 1994). Nevertheless, dedication is an exceptional mode of passing an interest in land, and proof of dedication must be strict, cogent, and convincing. The acts proved must not be consistent with any construction other than that of a dedication, and dedication may not be implied from the permissive, sporadic, and recreational use of property. The record must contain evidence the owner of the property clearly, convincingly, or unequivocally intended to dedicate the property for public use. Id.

As with intention to dedicate, no formal acceptance by a public authority is necessary to show public acceptance. Acceptance may be implied by the public or a public...