Vick v. SOUTH CAROLINA DEPT. OF TRANSP.

• Decision Date: 15 October 2001
• Docket Number: No. 3393.,3393.
• Citation: 347 S.C. 470,556 S.E.2d 693
• Parties: Louis V. VICK, Jr., Respondent, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Appellant.
• Court: South Carolina Court of Appeals

347 S.C. 470

556 S.E.2d 693

Louis V. VICK, Jr., Respondent, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Appellant.

No. 3393.

Court of Appeals of South Carolina.

Heard September 6, 2001.

Decided October 15, 2001.

Rehearing Denied December 20, 2001.

Christopher L. Murphy, of Stuckey Law Offices, of Charleston; and Assistant Chief Counsel Glennith C. Johnson, of Columbia, for appellant.

Joseph S. Brockington, of Charleston, for respondent.

HEARN, C.J.:

Louis V. Vick, Jr. brought this inverse condemnation action against the South Carolina Department of Transportation (SCDOT), alleging damage to a private road. The matter was referred to the master-in-equity to address the issue of ownership of the property, reserving the issue of damages if the road was found to be private for a jury trial. After the master found Vick owned the road, a jury awarded him $134,261.52, and the circuit court awarded attorney fees and costs. We affirm.

FACTS

Pumpkin Lane is a 15-foot-wide, dead-end road near the Town of Mount Pleasant. It is approximately 980 feet long and runs in a straight line beside five residential lots. The road and surrounding property were originally part of a tract conveyed to Vermeil Ola Wiggins. In 1954, she subdivided the property into five lots. On a plat prepared at that time (Wiggins Plat), Pumpkin Lane was named "Vermeil Ole [sic] Wiggins Drive."

Around 1980, Vick made a verbal agreement with Benjamin Wiggins, Vermell's husband, to purchase all of the lots on Pumpkin Lane over time. By 1988, Vick owned three of the five lots. He purchased the fourth lot in 1989 and the fifth in 1997. In 1996, Vick received and recorded a quitclaim deed to Pumpkin Lane from Benjamin Wiggins as Vermell's heir.

In the late 1980s, SCDOT made plans for construction of the Mark Clark Expressway, including placing two concrete pipes under Pumpkin Lane to remove water that was expected to drain along the expressway. Installation of the pipes began in 1990.¹ When the project was completed, the contractors realized they had mistakenly placed the pipes partially under Vick's lots, instead of under Pumpkin Lane as detailed in the plans. As a result, SCDOT condemned a five-foot-wide strip of land on each of the lots for which Vick was paid $15,000.

In addition to the improper pipe placement, Vick noticed a deterioration in the condition of Pumpkin Lane. Before the construction, the road had a gravel surface. SCDOT resurfaced the road with dirt. Portions of the road caved in and deep potholes developed due to problems with the underground pipes. Vick purchased a dump truck and brought in fill material to repair the road after he unsuccessfully tried to persuade SCDOT to do so.

In 1997, Vick brought this action, alleging he was entitled to compensation because the improper installation of the pipes damaged his road and caused a diminution in the value of his property. Vick also sought attorney fees and costs. By consent order of reference, the case was bifurcated and the parties agreed to have the master hear the issue of ownership, with any damages to be tried before a jury. The master found Pumpkin Lane was privately owned by Vick and that it had not been dedicated to the public. In September 1999, a damages trial was held, and the jury awarded Vick actual damages of $134,261.52. After the verdict, SCDOT moved for a new trial or remittitur, arguing the verdict was outside the range of the evidence. The circuit court denied the motions and awarded Vick attorney fees of $41,425.00 and costs of $2,678.58. SCDOT appeals.

DISCUSSION

I. Implied Dedication

SCDOT contends the master erred in failing to find Pumpkin Lane was impliedly dedicated for public use because the Wiggins Plat showed a small road running along five lots. We disagree. The determination of whether a road has been dedicated to public use is one in equity. Mack v. Edens, 320 S.C. 236, 239, 464 S.E.2d 124, 126 (Ct.App.1995). Therefore, this court may find facts in accordance with its own view of the preponderance of the evidence. Id.

Real property interests are normally conveyed by deed or will. Shia v. Pendergrass, 222 S.C. 342, 348, 72 S.E.2d 699, 701 (1952). In situations where title is claimed by dedication rather than an actual conveyance, the actions of the parties "must be so unequivocal and positive as to leave little doubt that it was the intention of the owner to dedicate the same to the public use." Id. To perfect a claim of dedication, a party must show two elements: (1) the owner's clear and unmistakable intention to dedicate the property to public use, and (2) acceptance of that property by the public. Tupper v. Dorchester County, 326 S.C. 318, 326, 487 S.E.2d 187, 191-92 (1997). We find the master properly applied these principles in finding there was no implied dedication.²

South Carolina law recognizes two types of implied dedication—"one where the question of implied dedication arises from the sale of land with reference to maps or plats; the other when the dedication arises ... from an abandonment to or acquiescence in public use." Shia, 222 S.C. at 347, 72 S.E.2d at 701. Here, SCDOT contends the former applies.

We find the Wiggins Plat alone does not conclusively manifest an intent to dedicate the road to the public, particularly in light of the fact that nearly all of the deeds Wiggins prepared conveying the lots merely granted the buyer an easement for ingress and egress over the road. This necessarily gives rise to the inference that she intended to retain ownership. Although the Wiggins Plat may have created a private right of easement between Wiggins and the purchasers, the fact that Wiggins allowed this small group to use the road did not vest any rights in the public at large or convey an offer of the road to the county. There is a "clearly defined distinction between the rights acquired by the public through dedication effected by platting and sale, and the private rights acquired by the grantees by virtue of the grant or covenant contained in a deed which refers to a plat, or bounds the property upon a street through the grantor's lands." Outlaw v. Moise, 222 S.C. 24, 31, 71 S.E.2d 509, 512 (1952) (citation omitted). The Outlaw court further found:

[W]here lands are platted and sales are made with reference to the plat, the acts of the owner in themselves merely create private rights in the grantees entitling the grantees to the use of the streets and ways laid down on the plat or referred to in the conveyance. But these rights are purely in the nature of private rights founded upon a grant or covenant, and no public rights attach to such streets or lands until there has been an express or implied acceptance of the dedication evidenced either by general public use or by the acts of the public authorities.

Id. Therefore, we find a plat alone is not determinative of implied dedication where there is evidence of the grantor's contrary intent.

Even if the plat constituted some indicia of intent to dedicate the property to the public, "[o]ur inquiry does not stop [t]here, however. After an owner expresses an intent to dedicate property to the public by a plat, the public must accept the dedication to make it complete." Van Blarcum v. City of N. Myrtle Beach, 337 S.C. 446, 451, 523 S.E.2d 486, 489 (Ct.App.1999). "No formal acceptance by the public of an offer of dedication is necessary, and acceptance of the offer may be implied by the public's or public authority's continuously utilizing or maintaining the property in some fashion." Id.

Acceptance will not be implied by operation of law as asserted by SCDOT. When property is subdivided and sold according to a plat showing streets or roads, "the grantees acquire a private easement in the streets, but the easement does not become a public easement until there has been an express or implied acceptance of the dedication, evidenced either by general public use or by acts of the public authorities." Giles v. Parker, 304 S.C. 69, 73, 403 S.E.2d 130, 132 (Ct.App.1991); see also Walker v. Guignard, 293 S.C. 247, 248, 359 S.E.2d 528, 529 (Ct.App.1987)

(holding although a designation of a street on a plat may have been an offer of dedication, "there was never any acceptance, without which the purported dedication would not be complete").

In this case, the evidence shows no public acceptance. Aside from the buyers of the five lots, there was no evidence of general use by the public or of acceptance or maintenance by city or county authorities. The former deputy attorney for Charleston County testified there was no public dedication by Wiggins or an acceptance by the public or any governmental entity, and she believed Pumpkin Lane was a private road. She stated that Wiggins named the road after herself and called it a private drive. She also noted that a 1992 letter from Charleston County denied Vick's requests to maintain the road on the basis it was private property.

Accordingly, we affirm the master's finding there was no implied dedication of Pumpkin Lane.

II. Interest

SCDOT next contends the circuit court committed reversible error in charging the jury on interest.³ At oral argument, SCDOT conceded Vick's entitlement to an award for interest and merely disputed how that award should be determined. SCDOT contends the South Carolina Eminent Domain Procedures Act (Act) should control and therefore it was error for the trial judge to charge the jury on interest. We disagree.

The Act, a uniform procedure for condemnation proceedings enacted in 1987, expressly requires interest be paid at the rate of eight percent yearly on the sum found to be just compensation, accruing from the date of filing of the condemnation notice to the date of the verdict or judgment. S.C.Code Ann. § 28-2-420(A) (1991). The Act is the exclusive procedure for condemnation by a governmental entity. S.C.Code Ann. § 28-2-60 (1991) ("The provisions of this chapter shall constitute the exclusive procedure...