Town of Kingstree v. Gary W. Chapman, Jr., Terilyn J. Mcclary, Waccamaw Hous., Inc.

• Decision Date: 24 July 2013
• Docket Number: No. 5162.,5162.
• Citation: 405 S.C. 282,747 S.E.2d 494
• Court: South Carolina Court of Appeals
• Parties: TOWN OF KINGSTREE, a Body Corporate and Politic, Respondent, v. Gary W. CHAPMAN, Jr., Terilyn J. McClary, Waccamaw Housing, Inc., Lydia F. Duke, Alice H. Kellahan, and South Carolina Department of Transportation, Defendants, Of Whom Lydia F. Duke and Alice H. Kellahan are the Appellants. Appellate Case No. 2012–205928.

405 S.C. 282

747 S.E.2d 494

TOWN OF KINGSTREE, a Body Corporate and Politic, Respondent,

v.Gary W. CHAPMAN, Jr., Terilyn J. McClary, Waccamaw Housing, Inc., Lydia F. Duke, Alice H. Kellahan, and South Carolina Department of Transportation, Defendants,Of Whom Lydia F. Duke and Alice H. Kellahan are the Appellants.

Appellate Case No. 2012–205928.

No. 5162.

Court of Appeals of South Carolina.

Heard April 11, 2013.

Decided July 24, 2013.

Larry G. Reddeck, of Nettles Turbeville & Reddeck, of Lake City; and William M. O'Bryan, Jr., of O'Bryan & O'Bryan, of Kingstree, for Appellants.

Ernest Joseph Jarrett, of Jenkinson Jarrett & Kellahan, PA, and Mary Amanda Harrelson Shuler, of Whetstone Perkins & Fulda, LLC, both of Kingstree, for Respondent.

KONDUROS, J.

Lydia F. Duke and Alice H. Kellahan (collectively, Appellants) appeal the special referee's order granting the Town of Kingstree's (the Town's) petition to close a portion of Porter Street, arguing (1) the Town was bound by the allegation in its petition that Appellants had an easement for the use of Porter Street; (2) Appellants had an express written easement across the area in question, which had not been abandoned; (3) the area in question was not properly dedicated as a public roadway or street; (4) the Town lacked statutory authority to petition to close the area in question; (5) the Town failed to prove Appellants had abandoned the easement; (6) the Town failed to prove the closure of the area in question was in the public interest; (7) the Town failed to plead or prove Appellants were estopped to object to the closing of the area in question; (8) the evidence did not support the special referee's finding Appellants purchased the easement to make Porter Street a public road; and (9) the closure of Porter Street constituted a taking and Appellants are entitled to just compensation. We reverse.

FACTS/PROCEDURAL HISTORY

In 1879, John T. Nelson purchased a substantial amount of property in the Town but could not obtain the title until he turned twenty-one years old. In 1899, he acquired the title. In 1903, he had the land platted, which showed twenty lots that were to be sold along a road that became known as Ashton Avenue and a road or alley ¹ between Lots 13 and 14. In 1909, he sold Lots 13 and 14 to two separate buyers. Both deeds indicated the street between them was “a new Street” or “a New Side Street.” Nelson retained the land to the South of the lots, and Marie L. Nelson inherited this land from her father in 1938. In 1981, John McIntosh inherited this land from Marie.

In 1993, Appellants purchased a 20.97–acre tract of property from McIntosh, which was part of the land he inherited from Marie. At the same time, Appellants also acquired from McIntosh a fifty-foot easement from Ashton Avenue to Nelson Boulevard. The easement stated that the property Appellants purchased was “bounded on the West by a proposed fifty (50) foot street or road know as Porter Street.” Further, the easement stated, “Whereas the lands on the Western side of proposed road or street known as Porter Street were devised by Marie L. Nelson to the trustees under her last Will and Testament as will appear by reference to the same and whereas said devise may have included the proposed fifty (50) foot road or street known as Porter Street....” The easement specified: “said proposed fifty (50) foot road or street should be opened and remain open for the mutual use and benefit of the owners of the lands of the Estate of Marie L. Nelson now held in trust and the owners of the twenty and ninety-seven hundredths (20.97) acres this day conveyed to [Appellants].” The easement further stated:

The grantor does agree that the grantee, their heirs or assigns may take such steps and make such improvements as may be necessary to have said street or road opened and maintained as a public street or road and that grantor will assist in such endeavor and that said street or road when opened shall be for the mutual use and benefit of the owners of property lying on either side of the same.

In 1998, several of the charities to which Marie had devised property in the same area sold their land to the Town in order for the Town to build a recreation complex. Part of Porter Street was within the boundaries of the land sold.

In 2003, Waccamaw Housing, Inc. agreed to purchase 2.15 acres of Appellants' property for a senior citizens housing project, contingent upon the zoning for the area being changed from highway commercial to planned unit development. Nehemiah Corporation on behalf of Waccamaw requested the rezoning of the property. On January 26, 2004, at the town council meeting, the Town had a first reading on the rezoning. Alice's husband, W.N. Kellahan, Jr.,² was present. After a council member indicated he had received calls from residents concerned about the development, the council decided to have a public hearing before the second reading.

The council held the public hearing on February 20, 2004, and discussed pedestrian traffic. Kellahan was unable to attend the public hearing and second reading because he was out of town. He and Senator John Yancey McGill had discussed that he would be absent. A council member asked if the developer was willing to close Porter Street on the Ashton Avenue side. J.W. Campbell responded that would only stop vehicle traffic, not pedestrian traffic. Senator McGill made a recommendation for a second reading of the ordinance with the understanding that Porter Street would be closed permanently from Ashton Avenue and a barricade and fence would be erected. The second reading of the rezoning immediately followed at a special meeting of town council. The council approved the ordinance to rezone the property with the amendment that Porter Street be blocked on the Ashton Avenue side. The minutes provided that Kellahan would fence his property line to within fifty feet of Highway 377, which Kellahan did.

On May 3, 2004, Waccamaw purchased the 2.15–acre tract from Appellants. Construction of the housing project began within sixty days of the zoning change approval and took approximately one year to complete.

On November 14, 2005, the Town filed a petition for abandonment and closure of the area. The Town named Appellants, Gary W. Chapman, Jr., Terilyn J. McClary, the South Carolina Department of Transportation (SCDOT), and Waccamaw as defendants. McClary and Chapman, who at the time owned the two lots that bordered the area at issue, Lots 13 and 14, did not answer and were held in default.³ Both SCDOT and Waccamaw filed answers stating they had no objection to the closing. SCDOT stated Porter Street “is not shown as part of the State Highway System. SCDOT records do not find any file or documents for this section of road.” Appellants filed an answer and counterclaim, requesting the petition be dismissed and if it was not, asking for just compensation for the termination of their rights to their easement based on a reduction in value to their property. The circuit court referred the matter to the special referee.

Following a hearing, the special referee ordered a portion of Porter Street be closed. The referee found the Town and Appellants “have unequivocally agreed that Porter Street would be used as a public road. Public funds were used for the paving of Porter Street and the original easement conveyed to [Appellants] underscores the desire to have the street opened and used for their benefit and members of the public.” Additionally, the special referee found an agency relationship was established between Appellants and Senator McGill and thus, Appellants were bound by the deal brokered by Town Council with the input of Senator McGill. The referee also determined the closing would not affect emergency vehicles because they have other means of access and the part of the street to be closed was not in use. Further, the referee found:

Porter Street is owned by the Town ... as evidenced by the deeds for the purchase of the land for the recreation complex, the negotiated agreement to rezone the property to permit the housing project, and the paving of a substantial portion of Porter Street using public funds. Although there was never a public dedication of Porter Street, Porter Street has been used by the public and all of the street except the length of one lot has been paved using public CTC funds which benefitted [Appellants]. Porter Street is therefore by the agreement and the actions of the parties to this litigation a public street.

The special referee further noted the deed from Appellants to Waccamaw did not contain an easement, evidencing that Porter Street was public. Additionally, the referee determined the closing would be in the best interests of the citizens and residents of the surrounding area and the Town, including abutting property owners and interested parties, and would not be prejudicial to abutting property owners or interested parties. The referee found the determination of the scope of an easement was one in equity and thus, found Appellants' counterclaim should be denied because they purchased the easement for the purpose of making Porter Street a public road. The special referee ordered the title for the property that was closed to be split equally between the owner of lots 13 and 14. On November 4, 2010, Appellants filed a motion to alter or amend pursuant to Rules 59(e) and 60, SCRCP.

The special referee denied the motion to alter or amend, finding: “Porter Street is a publically dedicated road which has been delineated on a number of plats since 1903. It was expressly dedicated to the public when the 1903 subdivision plat was recorded.” The referee further found, “The public later accepted that dedication by using the roadway, albeit light use. Porter Street was dedicated to the public and accepted by the public prior to the easement granted by Samuel McIntosh to [Appellants].” The referee further found that “[e]ven if the portion of...