Tupper v. Dorchester County, No. 24643

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtWALLER; FINNEY
PartiesJohn M. TUPPER, George L. Tupper, Elias Tupper and Tupper's Joint Properties, Respondents/Appellants, v. DORCHESTER COUNTY (Dorchester County Council), Patsy Knight, Dorchester County Treasurer, Joan Owen, Dorchester County Tax Collector, The Town of Summerville, John H. Walters, Sr., Francis C. Suggs, Corey Pointe Partners, A South Carolina Partnership, and its partners Kenneth Tolley and James Bell, Defendants, Of whom Francis C. Suggs is Appellant/Respondent, and Dorchester County (Dorchester County Council), Patsy Knight, Dorchester County Treasurer, Joan Owen, Dorchester County Tax Collector, The Town of Summerville, John H. Walters, Sr., Francis C. Suggs, Corey Pointe Partners, A South Carolina Partnership, and its partners Kenneth Tolley and James Bell are Respondents. . Heard
Docket NumberNo. 24643
Decision Date16 April 1997

Page 187

487 S.E.2d 187
326 S.C. 318
John M. TUPPER, George L. Tupper, Elias Tupper and Tupper's
Joint Properties, Respondents/Appellants,
v.
DORCHESTER COUNTY (Dorchester County Council), Patsy Knight,
Dorchester County Treasurer, Joan Owen, Dorchester County
Tax Collector, The Town of Summerville, John H. Walters,
Sr., Francis C. Suggs, Corey Pointe Partners, A South
Carolina Partnership, and its partners Kenneth Tolley and
James Bell, Defendants,
Of whom Francis C. Suggs is Appellant/Respondent,
and
Dorchester County (Dorchester County Council), Patsy Knight,
Dorchester County Treasurer, Joan Owen, Dorchester County
Tax Collector, The Town of Summerville, John H. Walters,
Sr., Francis C. Suggs, Corey Pointe Partners, A South
Carolina Partnership, and its partners Kenneth Tolley and
James Bell are Respondents.
No. 24643.
Supreme Court of South Carolina.
Heard April 16, 1997.
Decided June 30, 1997.

Page 189

[326 S.C. 321] Appeal From Dorchester County Luke N. Brown, Jr., Circuit Court Judge

O. Grady Query, Charleston, for appellant/respondent.

Morris D. Rosen and Kevin R. Eberle of Rosen, Rosen and Hagood, of Charleston, for respondents/appellants.

Robert H. Hood, John Keith Blincow, Jr., and Dixon F. Pearce, III, all of Hood Law Firm, Charleston, for respondent Dorchester County and Town of Summerville.

[326 S.C. 322] Robert D. Robbins of Bell and Robbins, St. George, for respondent Corey Pointe Partners and James Bell.

WALLER, Justice:

These are cross-appeals from an order of the circuit court granting Respondents-Appellants (The Tuppers) summary judgment and holding they had an easement over property owned by Appellant-Respondent (Suggs). The court issued an injunction requiring Suggs to remove an inground swimming pool built over the easement. The Court also granted summary judgment to Respondent, Town of Summerville, finding that it was not liable to the Tuppers for having granted a swimming pool permit to Suggs. We affirm in part, reverse in part, and remand.

FACTS

The Tuppers own 400 acres of property adjacent to Corey Pointe III subdivision in Dorchester County. To facilitate construction of the subdivision, the developers were required to obtain a drainage ditch easement across the Tuppers' property. On January 23, 1986, the Tuppers conveyed a 20'x 700' drainage easement to Dorchester County, adjacent to a vacant lot in the subdivision. In exchange for the easement, the developers of the subdivision agreed to provide the Tuppers a 40' right of way across a vacant lot. However, the 40' right of way is not memorialized in the ditch easement agreement, nor was it ever formalized by a written agreement. The only indication of the right-of-way is in a plat of the subdivision recorded by the developers with the Dorchester County Clerk of Court. The plat shows the Tuppers' property, a proposed 14" wide gate on their property, the proposed 20' drainage easement, and a "40' R/W" adjacent to the Tupper's property, in the subdivision. The

Page 190

plat also states: "By recordation of this plat, we hereby dedicate all streets and easements to the use of the public forever."

In 1988, the Corey Point Partners (developers) failed to pay $18.99 property taxes assessed by the County on the 40' right-of-way. The property was sold to a man named Walters for $100.00 in 1991. Walters thereafter sold the 40' strip to Suggs, an adjacent landowner in Corey Point, for $150.00. [326 S.C. 323] The deed from Walters to Suggs does not reference the recorded plat of the subdivision. In 1992, having received a permit from the Town of Summerville, Suggs constructed an inground swimming pool on the 40' strip, completely obstructing the Tuppers' right of way. 1

The Tuppers brought this suit seeking a declaration that they had an enforceable easement, 2 and an injunction and damages. The Court granted the Tuppers summary judgment, finding they had an enforceable easement, and Suggs was ordered to remove the pool. The Town of Summerville was granted summary judgment on the ground that it was not liable to the Tuppers for having issued a pool permit to Suggs.

SCOPE OF REVIEW

The determination of the existence of an easement is a question of fact in a law action and subject to an any evidence standard of review when tried by a judge without a jury. Jowers v. Hornsby, 292 S.C. 549, 357 S.E.2d 710 (1987). However, the determination of the extent of a grant of an easement is an action in equity. Moore v. Reynolds, 285 S.C. 574, 577, 330 S.E.2d 542, 544 (Ct.App.1985). Thus, this Court may take its own view of the evidence on the latter issue. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

ISSUES

1. Did the court err in finding the Tuppers had a valid easement? (Suggs' Appeal).

2. Did the court err in finding that the Town of Summerville's issuance of a swimming pool permit did not form the basis for liability to the Tuppers? (Tuppers' Appeal).

[326 S.C. 324] 1. EASEMENT

Suggs contends the trial court erred in granting the Tuppers summary judgment. He claims a) no easement was validly created as there is no writing to satisfy the statute of frauds, b) any easement was "in gross" rather than "appurtenant" such that it did not survive the transfer of ownership from the Tuppers, as individuals, to their corporation, Tupper's Joint Properties, and c) there was no dedication of the alleged easement to the public. We agree with Suggs' second and third claims and, accordingly, reverse the grant of summary judgment.

a. Sufficiency of Writings

As an initial matter, Suggs asserts there is no writing memorializing the easement sufficient to satisfy the statute of frauds, S.C.Code Ann. § 32-3-10 (1991). Suggs neither raised this issue, nor was it ruled on by the trial court; it is therefore not preserved for review. Turbeville v. Gordon, 233 S.C. 75, 103 S.E.2d 521 (1958)(statute of frauds may not be raised for first time on appeal). 3

In any event, the purpose of the statute of frauds is to protect the promisor and may be waived by him. Cooper v. A.A.A. Highway Express, Inc., 206 S.C. 372, 34 S.E.2d 589 (1945). Cf. American Wholesale Corporation v. Mauldin, 128 S.C. 241, 122 S.E. 576 (1924)(statute of frauds is an affirmative defense which must be pled); Hatcher v. Harleysville Mutual Insurance Co., 266

Page 191

S.C. 548, 225 S.E.2d...

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165 practice notes
  • Staubes v. City of Folly Beach, No. 2834.
    • United States
    • Court of Appeals of South Carolina
    • April 27, 1998
    ...where further inquiry into the facts of the case is desirable to clarify the application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Baugus v. Wessinger, 303 S.C. 412, 401 S.E.2d 169 (1991). Even when there is no dispute as to evidentiary facts, but only as......
  • Sloan v. Sc Bd. of Physical Therapy ex'Mnrs, No. 26209.
    • United States
    • United States State Supreme Court of South Carolina
    • September 25, 2006
    ...any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP; Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable infere......
  • Regions Bank v. Schmauch, No. 3651.
    • United States
    • Court of Appeals of South Carolina
    • June 9, 2003
    ...fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP; see also Tupper v. Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997); Wells v. City of Lynchburg, 331 S.C. 296, 301, 501 S.E.2d 746, 749 (Ct.App.1998). In reviewing the grant of a......
  • Parker v. Shecut, No. 3167.
    • United States
    • Court of Appeals of South Carolina
    • May 22, 2000
    ...defenses, such as the statute of frauds, must be set forth in a responsive pleading. Rule 8(c), SCRCP; Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); American Wholesale Corp. v. Mauldin, 128 S.C. 241, 122 S.E. 576 (1924); cf. Resolution Trust Corp. v. Eagle Lake and Golf ......
  • Request a trial to view additional results
165 cases
  • Staubes v. City of Folly Beach, No. 2834.
    • United States
    • Court of Appeals of South Carolina
    • April 27, 1998
    ...where further inquiry into the facts of the case is desirable to clarify the application of the law. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Baugus v. Wessinger, 303 S.C. 412, 401 S.E.2d 169 (1991). Even when there is no dispute as to evidentiary facts, but only as......
  • Sloan v. Sc Bd. of Physical Therapy ex'Mnrs, No. 26209.
    • United States
    • United States State Supreme Court of South Carolina
    • September 25, 2006
    ...any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP; Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable infere......
  • Regions Bank v. Schmauch, No. 3651.
    • United States
    • Court of Appeals of South Carolina
    • June 9, 2003
    ...fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP; see also Tupper v. Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997); Wells v. City of Lynchburg, 331 S.C. 296, 301, 501 S.E.2d 746, 749 (Ct.App.1998). In reviewing the grant of a......
  • Parker v. Shecut, No. 3167.
    • United States
    • Court of Appeals of South Carolina
    • May 22, 2000
    ...defenses, such as the statute of frauds, must be set forth in a responsive pleading. Rule 8(c), SCRCP; Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); American Wholesale Corp. v. Mauldin, 128 S.C. 241, 122 S.E. 576 (1924); cf. Resolution Trust Corp. v. Eagle Lake and Golf ......
  • Request a trial to view additional results

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