Thomas v. Mitchell, 0565

• Decision Date: 23 September 1985
• Docket Number: No. 0565,0565
• Court: South Carolina Court of Appeals
• Parties: A.C. THOMAS, Jr., Appellant, v. Kathryn Vereen MITCHELL and Deborah G. Vereen, Respondents. . Heard

Page 154

336 S.E.2d 154

287 S.C. 35

A.C. THOMAS, Jr., Appellant, v. Kathryn Vereen MITCHELL and Deborah G. Vereen, Respondents.

No. 0565.

Court of Appeals of South Carolina.

Heard Sept. 23, 1985.

Decided Oct. 23, 1985.

Howell V. Bellamy, Jr., and Henrietta U. Golding of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, Myrtle Beach, for appellant.

Larry B. Hyman, Jr., Conway, for respondents.

CURETON, Judge.

This is an action for injunction. The sole question presented is whether the respondents Kathryn Vereen Mitchell and Deborah G. Vereen should be required to remove a locked cable erected across an easement owned by the appellant A.C. Thomas, Jr., which crosses their agricultural lands. The action was referred to the master-in-equity who determined that the servient estate could burden the dominant estate with the gate. We affirm.

In 1974 Thomas purchased 53.30 acres of land from Eugene Vereen, father of the respondents. The tract was separated from the public road by other lands owned by Vereen. In the same deed, Vereen granted to Thomas "a Fifty (50) foot easement for an access road from the western boundary of the ... property conveyed to State Road 377...." Thomas then constructed a hunting and fishing lodge and a road within the easement from the terminus of the public road to his property. When Thomas dammed a stream on his property to create a pond, he began to encounter trespassers on his property. In an attempt to remedy the problem, he obtained permission from Vereen to place a cable across the easement near its entrance to the public road. The cable was locked by Thomas and keys given to the Vereen family. The parties disagree about how long the cable remained in place. The Vereens claimed it remained for three to four years, while Thomas claimed he removed the cable much earlier and placed it on his own property where it adjoins the end of the easement.

Before his death in 1980, Eugene Vereen deeded the servient tract to his daughters, the respondents herein. In 1982 the daughters erected another cable across the easement near the cable's initial location, locked it and gave Thomas a key to the lock. The daughters testified it was necessary to re-erect the cable because their property was plagued by trespassers, night hunters and vandals who drove vehicles over their planted fields.

At first Thomas voiced no objection to the cable, but when winter came he grew tired of having to unlock two gates (the Vereen's and his own) before he could enter upon his property. The lock mysteriously disappeared. The daughters then purchased a new lock and offered Thomas a key, but he refused to accept it. Soon thereafter Thomas commenced this action to enjoin the Vereen daughters from obstructing the easement. The cable has remained unlocked ever since. Thomas contends the cable is not necessary for the Vereen's use of their property.

In an appeal of an equitable action tried before a master authorized to enter final judgment, this Court must review the entire record and make its own findings of fact according to its view of the preponderance of the evidence. Brown v. Gaskins, 284 S.C. 30, 34-35, 324 S.E.2d 639, 641 (Ct.App.1984). This requirement does not, however, command us to ignore the findings of the trial judge who heard the witnesses. Here, the trial judge was required to make decisions relative to the veracity and credibility of witnesses. Such decisions can best be made by the trial judge who heard the witnesses and observed their demeanor. Klutts Resort Realty v. Down'round Development Corp., 268 S.C. 80, 232 S.E.2d 20 (1977).

Thomas first argues that the case of Owens v. Cantrell, 219 S.C. 433, 65 S.E.2d 773 (1951) supports the proposition that a gate may not be erected by the owner of a servient estate to prevent the passage of people. This argument is misplaced. As stated in Brown v. Gaskins, "A careful reading of iOwens reveals the Court held only that two statutes relied upon by the servient owner to justify erection of a gate had application to the construction of gates to prevent the passage of animals, not people." 284 S.C. at 34, 324 S.E.2d at 641.

The case primarily relied upon by all parties is Watson v. Hoke, 73 S.C. 361, 53 S.E. 537 (1906). There the Court held that the owner of a servient estate may place gates across an easement so long as the gates are "necessary for the enjoyment of his property, and are not so numerous and of such size and construction as to constitute an unreasonable burden on the right of way." 73 S.C. at 364, 53 S.E. at 538. See also Brown v. Gaskins, 284 S.C. at 33, 324 S.E.2d at 640.

In addition to the question of the right of the owner of the servient estate to erect a gate, this case presents also the question of whether he may also lock the gate. The Watson and Brown cases did not deal with locked gates. There is a split of authority among the jurisdictions whether a locked gate constitutes an unreasonable burden to the owner of the dominant estate. Hall v....