Tyler v. Guerry
| Decision Date | 17 April 1968 |
| Docket Number | No. 18782,18782 |
| Citation | 160 S.E.2d 889,251 S.C. 120 |
| Court | South Carolina Supreme Court |
| Parties | Harry TYLER et al., Respondents, v. Fred P. GUERRY, Agnes C. Martin and Catherine C. Guerry, Appellants. |
Zeigler & Townsend, Florence, for appellants.
LaNue Floyd, Kingstree, for respondent.
This action is brought by several plaintiffs against the owners of a tract of land to determine the rights of the plaintiffs, and the right of the public, to use two roads which connect a public road to a recreational area referred to as Brown's Landing on the bank of Black River.
The two roads are each approximately two-tenths of a mile in length, and after leaving the public road, one crosses first the land of Walters and the other first the land of Brown, and then cross land of the defendants, who own to the bank of the river, including the recreational area referred to as Brown's Landing, and a club house. One road, referred to as the old road, has been in existence for more than 50 years; the other road, referred to as the new road, was built and put into use about 10 years ago.
The complaint alleges that people generally have used the old road for a period of more than 50 years, and alleges that the right of the public to use that road has been required by prescription. It is contended that the new road, almost paralleling the old road, was built about 10 years ago by the county and that the land on which it is built was dedicated by the defendants and/or their predecessor in title for public use. The complaint further alleges that the defendants caused ditches to be dug across both roads, preventing the plaintiffs and others from using the same and from reaching Brown's Landing. The plaintiffs ask that the defendants be enjoined from interfering with the use of both roads and the use of the landing.
The answer of the defendants alleges that they own, to the exclusion of all others, a tract of land containing 243 acres on Black River, including the recreational area and the land crossed by a portion of both the old road and the new road. The answer prays that the plaintiffs and the public be declared to have no interest in either of the roads or the landing.
The lower court heard the evidence and ruled in favor of the plaintiffs, holding that an easement by prescription had been acquired to the old road, and holding that the landowners had dedicated the new road to the use of the public. That court ordered the defendants to fill the ditches, remove obstructions and not to interfere with the public's use of the landing.
By proper exceptions the landowners raise two questions for determination by this court: first, have the plaintiffs established by the preponderance of the evidence, an easement across the defendants' land; and secondly, have the plaintiffs established a dedication by the landowners of the new road?
The land of the defendants was procured by their father in 1939. About 1955 their father became disabled and his son, Fred P. Guerry, one of the defendants, took over the management and control of the property. The father died in 1960.
There are several facts which are virtually undisputed. A limited number of local people, including some of the plaintiffs, have used the old road as an access to the bank of the river for more than 50 years for the purpose of swimming, fishing, picnicking, and occasional baptizings. Some of them obtained permission from the landowners and some did not. The old road was narrow, crooked, and ran through woodlands to a cleared area on the bank of the river. When the new road was built about 10 years ago the use of the old road was abandoned and it has become grown up and is very nearly impassable.
Although the area is designated by name as a landing, the evidence does not support an inference that it is a landing in the usual or legal sense of the word. The case of State v. Randall, 1 Strob. 110, defines a landing as follows:
'A landing is a place on a river or other navigable water for lading and unlading goods, or for the reception and delivery of passengers.'
Of the more than 30 witnesses who testified, many of them relative to the use of the river bank, only one commented about putting a boat in at this location. We conclude that any rules of law relative to landings are not applicable under the facts of this case. We have simply two roads connecting a public highway with the bank of the river and a club house owned by the defendants.
In 1958 the county supervisor charged with road maintenance, cut a new road from the public highway to the river area. The defendants and/or their predecessor in title supplied the drainage pipes and a portion of the labor. Such negotiations for road construction as took place were informal and oral. The evidence shows that it was customary for county road officials to assist landowners on private property in building and maintaining plantation avenues or lanes to houses owned by individuals. It is obvious that the county authorities helped with the building of this road at the request of the landowners and not because the public interest...
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Gore v. Skipper
...229 S.C. 519, 93 S.E.2d 873; Airfare, Inc. v. Greenville Airport Commission, 249 S.C. 265, 153 S.E.2d 846. The case of Tyler v. Guerry, 251 S.C. 120, 160 S.E.2d 889, was an action to determine the right to use roads which ran across defendants' and from public highway to recreational area a......
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State v. Beach Co.
...to public servitude without compensation, the burden of proof to establish dedication is upon the party claiming it. Tyler v. Guerry, 251 S.C. 120, 160 S.E.2d 889 (1968); 23 Am.Jur.2d, Dedication, § 75; Littlefield v. Hubbard, 124 Me. 299, 128 A. 285, 38 A.L.R. 1306; MacCorkle v. City of Ch......
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Anderson v. Town of Hemingway
...to public servitude without compensation, the burden of proof to establish dedication is upon the party claiming it. Tyler v. Guerry, 251 S.C. 120, 160 S.E.2d 889 (1968); 23 Am.Jur.2d, Dedication, § 75; Littlefield v. Hubbard, 124 Me. 299, 128 A. 285, 38 A.L.R. 1306; MacCorkle v. City of Ch......
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Moorhead v. Scott
... ... Therefore, this Court will determine the facts in accordance with our own view of the preponderance or greater weight of the evidence. Tyler v. Guerry, ... 251 S.C. 120, 160 S.E.2d 889 (1968); Forester v. Forester, 226 S.C. 311, 85 S.E.2d 187 (1954) ... In a custody ... ...
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Chapter 11 Easements Affecting Commercial Real Estate
...242 S.C. 201, 130 S.E.2d 470 (1963).[66] See Cleland v. Westvaco Corp., 314 S.C. 508, 431 S.E.2d 264 (Ct. App. 1993); Tyler v. Guerry, 251 S.C. 120, 160 S.E.2d 889 (1968).[67] Jones v. Daly, 363 S.C. 310, 609 S.E.2d 597 (Ct. App. 2005).[68] Matthew v. Dennis, 365 S.C. 245, 616 S.E.2d 437 (C......
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E. Creation of Easements
...242 S.C. 201, 130 S.E.2d 470 (1963).[47] See Cleland v. Westvaco Corp., 314 S.C. 508, 431 S.E.2d 264 (Ct. App. 1993) and Tyler v. Guerry, 251 S.C. 120, 160 S.E.2d 889 (1968).[48] Jones v. Daly, 363 S.C. 310, 609 S.E.2d 597 (Ct. App. 2005).[49] Matthew v. Dennis, 365 S.C. 245, 616 S.E.2d 437......
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C. Elements Defined
...prescriptive easement).[36] Cleland v. Westvaco Corp., 314 S.C. 508, 511, 431 S.E.2d 264, 267 (Ct. App. 1993). See also Tyler v. Guerry, 251 S.C. 120, 160 S.E.2d 889 (1968) (mere use of property that is unenclosed and unimproved woodland does not give rise to right-of-way by prescription).[......