Thomas v. Mitchell, 0565

CourtCourt of Appeals of South Carolina
Writing for the CourtCURETON
Citation287 S.C. 35,336 S.E.2d 154
PartiesA.C. THOMAS, Jr., Appellant, v. Kathryn Vereen MITCHELL and Deborah G. Vereen, Respondents. . Heard
Docket NumberNo. 0565,0565
Decision Date23 September 1985

Page 154

336 S.E.2d 154
287 S.C. 35
A.C. THOMAS, Jr., Appellant,
Kathryn Vereen MITCHELL and Deborah G. Vereen, Respondents.
No. 0565.
Court of Appeals of South Carolina.
Heard Sept. 23, 1985.
Decided Oct. 23, 1985.

[287 S.C. 36] 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.


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.

Page 155

In 1974 Thomas purchased 53.30 acres of land from Eugene[287 S.C. 37] 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 [287 S.C. 38] 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,...

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12 cases
  • Murrells Inlet Corp. v. Ward, 4384.
    • United States
    • Court of Appeals of South Carolina
    • May 2, 2008
    ...518, 521, 248 S.E.2d 482, 484 (1978); Settlemeyer v. McCluney, 359 S.C. 317, 320, 596 S.E.2d 514, 516 (Ct.App.2004); Thomas v. Mitchell, 287 S.C. 35, 37-38, 336 S.E.2d 154, 155 (Ct.App.1985); see also Tupper, 326 S.C. at 323, 487 S.E.2d at 190 (finding since it is an action in equity, the C......
  • K & a Acquisition Group v. Island Pointe
    • United States
    • United States State Supreme Court of South Carolina
    • August 10, 2009
    ...for final judgment, we may find facts in accordance with our own view of the preponderance of the evidence. Thomas v. Mitchell, 287 S.C. 35, 682 S.E.2d 257 336 S.E.2d 154 (Ct.App.1985). We, however, are not required to ignore the findings of the trial judge, who heard and saw the witnesses.......
  • Tanaka v. Sheehan, 90-644.
    • United States
    • Court of Appeals of Columbia District
    • April 12, 1991
    ...25 Md.App. at 465, 336 A.2d at 150; Stucchi v. Colonna, 9 Mass.App. 851, 852, 400 N.E.2d 1272, 1273 (1980); Thomas v. Mitchell, 287 S.C. 35, 37, 336 S.E.2d 154, 155 (Ct.App.1985). Thus, consideration of whether the gate is usual and proper under the circumstances and the servient owner's ne......
  • Ballington v. Paxton
    • United States
    • Court of Appeals of South Carolina
    • June 9, 1997
    ...cert. denied (August 28, 1995). Whether any such gates may also be locked depends upon the circumstances of the case. Thomas v. Mitchell, 287 S.C. 35, 336 S.E.2d 154 In this case, based upon our own view of the preponderance of the evidence, we conclude that Paxton's fence is necessary to p......
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