Van Blarcum v. North Myrtle Beach, 3051.

• Court: Court of Appeals of South Carolina
• Writing for the Court: GOOLSBY.
• Citation: 337 S.C. 446,523 S.E.2d 486
• Parties: Richard J. VAN BLARCUM and Deborah S. Van Blarcum, Appellants/Respondents, v. CITY OF NORTH MYRTLE BEACH, Respondent/Appellant.
• Docket Number: No. 3051.,3051.
• Decision Date: 18 October 1999

337 S.C. 446
523 S.E.2d 486

Richard J. VAN BLARCUM and Deborah S. Van Blarcum, Appellants/Respondents,
v.
CITY OF NORTH MYRTLE BEACH, Respondent/Appellant

No. 3051.

Court of Appeals of South Carolina.

Heard September 9, 1999.

Decided October 18, 1999.

337 S.C. 448

Howell V. Bellamy, Jr., and Douglas M. Zayicek, both of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, of Myrtle Beach, for appellants/respondents

J. Jackson Thomas, of Myrtle Beach; and J. Gregory Hembree, of N. Myrtle Beach, for respondent/appellant.

GOOLSBY, Judge:

This case involves a dispute between the City of North Myrtle Beach and Richard and Deborah Van Blarcum over the ownership and use of three areas of property adjoining the Van Blarcums' beachfront motel and residence. The masterin-equity found the Van Blarcums held "record title" to a beach area that lies seaward of their lots down to the high-water

337 S.C. 449

mark of the Atlantic Ocean, but found the area to have been dedicated and thus subject to the public's right to use and enjoy a portion of it and to the City's right to maintain that portion. He also found the City had accepted a dedication of and held title to two five-foot rights-of-way that extend to the Atlantic Ocean along the "east" and "west" boundaries of the two lots on which the motel sits, and he found these rights-of-way subject to the rights of the public to use them as walkways and as driveways but not for vehicular parking. In an amended order, the master prohibited the parties from obstructing the walkways and limited the number of signs the City could place to identify the areas as public walkways. The Van Blarcums and the City filed cross-appeals. The central issue involved in the Van Blarcums' appeal concerns dedication while that involved in the City's appeal concerns the extent to which the City may maintain and control the two walkways. We affirm

I.

The Van Blarcums argue the master erred in granting the public the right to use the beach area on their property and in granting the City the right to maintain that area because the evidence of dedication was insufficient.

Sometime before March 1937, Charles Ingram bought fifty acres of beachfront property and developed a subdivision known as Ingram Beach. In March and April 1937, A.L. Ervin, C.E., surveyed the property and prepared a plat of the subdivision. The plat, which was recorded, delineated the subdivision's streets, rights-of-way, and lots and showed the high-water mark and low-water mark with reference to the lots. Ervin's plat divided Ingram Beach into Blocks A, B, C, D, and E, and further subdivided each block into numbered lots.

This case involves Lots 8, 9, and 10 of Block A. Ervin's plat shows each of these lots as adjoining Ocean Drive (now Ocean Boulevard) and fronting on the Atlantic Ocean and describes each of these lots as 52½ feet wide and 125 feet deep. The area in dispute lies between the original seaward line of Lots 8, 9, and 10 and the high-water mark as shown on Ervin's plat.

337 S.C. 450

Mary Gray Davis acquired Lots 9 and 10 on September 21, 1964, and built the Windjammer Motel on the property. On July 12, 1965, she deeded the property to Windjammer Motel, Inc. The latter deeded the property to the Van Blarcums on September 3, 1992

In 1995, the City began a beach renourishment project. After surveying the Van Blarcums' property, the City asked the Van Blarcums for an easement to allow the City to place sand on a portion of their property. The Van Blarcums refused the request. Their refusal prompted the City to assert the Van Blarcums did not actually own the property on which it wanted to place the sand. This assertion apparently led the Van Blarcums to obtain quitclaim deeds from Ingram's devisees to any property from the seaward-side lot lines of Lots 9 and 10 to the high-water mark of the Atlantic Ocean. The Ingram devisees gave a similar quitclaim as to Lot 8, property the Van Blarcums later acquired.

The determination of whether property has been dedicated to the public is an action in equity. State v. Beach Co., 271 S.C. 425, 248 S.E.2d 115 (1978); Mack v. Edens, 320 S.C. 236, 464 S.E.2d 124 (Ct.App.1995). Because this is an action in equity referred to a master 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, 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. Id. at 38, 336 S.E.2d at 155.

Proof of dedication must be strict, cogent, and convincing. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). The party seeking to establish dedication must prove two elements: (1) the owner must express in a positive and an unmistakable manner the intention to dedicate his property to public use, and (2) there must be, within a reasonable time, an express or implied public acceptance of the property offered for dedication. Tupper, 326 S.C. at 326, 487 S.E.2d at 191-92; Helsel v. City of North Myrtle Beach, 307 S.C. 24, 413 S.E.2d 821 (1992).

A recorded plat may be sufficient to disclose a landowner's intent to dedicate property to public use. McAllister

337 S.C. 451

v. Smiley, 301 S.C. 10, 15, 389 S.E.2d 857, 861 (1990) (Toal, J., dissenting). If a landowner subdivides and plats an area of land into lots and streets and then sells lots with reference to the plat, the owner manifests an intent to dedicate those common areas to be used by both the purchasers and the public, absent evidence of a contrary intent. Corbin v. Cherokee Realty, 229 S.C. 16, 91 S.E.2d 542 (1956); cf. ...