THIS OPINION HAS NO
PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The Milton P.
Demetre Family Limited Partnership, Plaintiff,
v.
Harry Beckmann,
III, Patricia P. Beckmann, Annie Ruth Hilton Crowley, Raymond Moody Crowley,
Donald William Crowley, Harris L. Crowley, Jr., and Annie Ruth Crowley Atkinson, Defendants.
The Milton P.
Demetre Family Limited Partnership, Plaintiff,
City of Folly Beach, Defendant,
and Emily S.
Brown, Annie Ruth Hilton Crowley, Harry Beckmann, III, and Patricia P.
Beckmann, Intervenors,
of whom The
Milton P. Demetre Family Limited Partnership is the Appellant,
and City of
Folly Beach, Emily S. Brown, Harry Beckmann, III, Patricia P. Beckmann,
Annie Ruth Hilton Crowley, Raymond Moody Crowley, Donald William Crowley,
Harris L. Crowley, Jr., and Annie Ruth Crowley Atkinson are the Respondents.
Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity
Unpublished Opinion No. 2009-UP-029
Heard November 6, 2008 Filed January 14,
2009
Withdrawn, Substituted and Refiled April
21, 2009
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Richard D. Bybee and Stanley E. Barnett, of Mount Pleasant, John
Hughes Cooper, of Sullivan's Island and Cain Denny, of Charleston, for
Appellant.
Stephanie P. McDonald, O. Benjamin Peeples, Jr., and Joseph S.
Mendelsohn, of Charleston and Richard L. Whitt and Jefferson D. Griffith, III,
of Columbia, for Respondents.
PER
CURIAM: The Milton P. Demetre Family Limited Partnership
(Demetre) appeals two orders of the master-in-equity. Demetre argues the
master erred by determining the City of Folly Beach (Folly Beach) owned East Indian Avenue. Demetre also argues the
master erred by dismissing his claims for declaratory judgment, decree to quiet
title, and an injunction and damages for trespass and nuisance. We affirm in part, reverse in part, and remand.
FACTS
Most of the Island of Folly Beach, South
Carolina was platted and subdivided by the Jefferson Construction Company in
1920, and recorded in the Charleston County Register of Mesne Conveyance (RMC)
Office. Subsequently, in 1965 the 1920 plat was redrawn because of
deterioration and in 1968 it was traced. The redraw added parcels to the 1920
plat; however, the tracing appears to be identical to the 1920 plat. All three
plats share the same book and page number at the RMC Office.
Between 1921 and 1925, the Folly Beach Improvement Company (FBIC)
acquired the entire island of Folly Beach and mortgaged its complete interest
to C & S Bank. In 1937, the FBIC sold "all the streets, avenues,
and/or lanes in and upon Folly Island" to the Board of Township Commission
of Folly Island for the use of the public. In 1942, C & S Bank foreclosed
on the mortgage and the land was bought by Edward Seabrook, Sr., at a public
auction. The deed conveyed the island to Seabrook "[s]aving and excepting
therefrom such lots and portions of land as have from time to time been
conveyed to sundry parties by [FBIC] by deeds recorded in the RMC Office for Charleston County."[1]
On May 30, 2002, Demetre purchased from Seabrook, Jr., a "portion
of [East Indian Avenue] that is undeveloped and unpaved" bordering lots
201 to 205 for $10,000 by quitclaim deed (the Road).[2] Both the 1920 plat and the 1968
redraw show a portion of East Indian Avenue extending from lot 201 to the
northwest corner of lot 205. Prior to purchasing the Road, Demetre's realtor stated he had a conversation with the Folly
Beach mayor and city administrator in which they told him Folly Beach did not
own the Road and suggested Demetre talk to Seabrook, Jr.[3]
Subsequently, Folly Beach asserted ownership of the Road. As a result, on
December 6, 2002, Demetre brought an action against Folly Beach to quiet title
in Road, which borders other property Demetre owns (the Road case). Emily
Brown, who was allowed to intervene in the case, owns lot 204 on East Huron Avenue and has used the Road daily to access her property since January 30, 1986.
On January 23, 2004, Demetre bought two riverfront lots, 209 and
210, on East Indian Avenue from Seabrook, Jr., for $23,700 by quitclaim deed. The
deed references the 1920 plat. Demetre's lots are shown on the 1965 redraw,
but they do not appear on the 1920 plat or the Charleston County tax map. When
Demetre purchased East Indian Avenue lots 209 and 210, two existing docks from East Huron Avenue lots 209 and 210 crossed over a portion of Demetre's lots to reach the water.
As a result, on October 7, 2005, Demetre brought an action against Annie
Crowley, Raymond Crowley, Donald Crowley, Harris Crowley, Jr., and Annie
Atkinson (the Crowleys),[4] and Harry and Patricia Beckmann (the Beckmanns) for declaratory judgment and to
quiet title to lots East Indian Avenue 209 and 210, where the Crowleys' and
Beckmanns' docks cross over the property (the Dock case).[5]
The Crowleys purchased lot 210, East Huron Avenue, on September 1,
1964, and the Beckmanns purchased lot 209, East Huron Avenue, on April 27,
1972. Both of their deeds referenced the 1920 plat, which shows no lots
between their lots and the marsh abutting the river. The Crowleys and
Beckmanns both believed they owned all the property behind their homes down to
the marsh. Beckmann testified he believed everything from his property line to
the Folly River was owned by the State.[6]
In 1988, both the Crowleys and the Beckmanns applied for permits from the South
Carolina Coastal Council (Council) to construct docks from their lots north to
the Folly River across East Indian Avenue lots 209 and 210. Both permits were
granted by the Council and the docks were constructed; however, they were
destroyed by Hurricane Hugo in 1989 and rebuilt in 1990.
On the
motion of the parties, these two cases were referred to a master-in-equity and
consolidated on August 21, 2006. The cases were tried on December 12, 2006.
On March 2, 2007, the master issued the Road Order, finding the Road was
dedicated to the public and Folly Beach owned the Road. On March 26, 2007, the
master issued the Dock Order, ruling in favor of the Crowleys and the Beckmanns
on all grounds. Demetre timely filed Rule 59(e), SCRCP, motions in both cases,
which were denied. Demetre then timely appealed both orders to this court and
we consolidated the appeals on September 13, 2007.
LAW/ANALYSIS
I.
The Road Case
A.
Standard of Review
"The determination of whether a roadway has been
dedicated to the public is an action in equity." Mack v. Edens,
320 S.C. 236, 239, 464 S.E.2d 124, 126 (Ct. App. 1995). Therefore, we may find
the facts in accordance with our own view of the preponderance of the evidence;
however, we are not required to disregard the findings of the trial judge who
saw and heard the witnesses and was in a better position to judge their
credibility. Cody Discount, Inc. v. Merritt, 368 S.C. 570, 574-75, 629
S.E.2d 697, 699 (Ct. App. 2006).
B.
Dedication
Demetre
argues the master erred by finding Folly Beach accepted the dedication by
recording the deed. We disagree.
Dedication
requires two elements: (1) intent to dedicate and (2) acceptance of the
dedication. Mack, 320 S.C. at 239, 464 S.E.2d at 126. The intention of
an owner to dedicate his property to public use must be expressed in a positive
and unmistakable manner. Horry County v. Laychur, 315 S.C.
364, 368, 434 S.E.2d 259, 261 (1993). "It is generally held that when the
owner of land has it subdivided and platted into lots and streets and sells and
conveys the lots with reference to the plat, he thereby dedicates the streets
to the use of such lot owners, their successors in title, and the public." Blue Ridge Realty Co. v. Williamson, 247 S.C. 112, 118, 145 S.E.2d 922,
924-25 (1965). "A recorded plat may be sufficient to disclose a landowner's
intent to dedicate property to public use." Van Blarcum v. City of N. Myrtle Beach, 337 S.C. 446, 450, 523 S.E.2d 486, 488 (Ct. App. 1999). The burden of
proving intent to dedicate is on the party asserting dedication. Shia v.
Pendergrass, 222 S.C. 342, 349, 72 S.E.2d 699, 702 (1952); Vick v. S.C.
Dep't of Transp., 347 S.C. 470, 477 n.2, 556 S.E.2d 693, 697 n.2 (Ct. App.
2001).
Evidence
of acceptance of a dedication must be by clear, convincing, and unequivocal
proof. Vick, 347 S.C. at 477 n.2, 556 S.E.2d at 697 n.2. An express or
implied public acceptance of the property offered for dedication must occur
within a reasonable time. Helsel v. City of N. Myrtle Beach, 307 S.C.
24, 27, 413 S.E.2d 821, 823 (1992). An acceptance of an offer of dedication
may be implied by the public or the public authority's continuous use or
maintenance of the property in some fashion. Boyd v. Hyatt, 294 S.C.
360, 365-66, 364 S.E.2d 478, 481 (Ct. App. 1988). "Acceptance of
dedication may be shown by use by a comparatively small number of persons, as
in the case of a short street to the seashore." 23 Am. Jur. 2d Dedication § 50 (2002). "The public use need not be constant, but merely continuous
in light of the particular nature of the land." Id. Also, the
non-assessment of taxes is a factor in the determination of dedication and
acceptance. Tupper v. Dorchester County, 326 S.C. 318, 327, 487 S.E.2d
187, 192 (1997).
The
1937 deed from the FBIC to the Board of Township Commission of Folly Island
stated it was dedicating "all the streets, avenues, and/or lanes in and
upon Folly Island" for the use of the public, which was properly
recorded. The foreclosure deed to Seabrook stated it was conveying to him the
land "saving and excepting . . . such lots and portions of land as have
from time to time been conveyed to sundry parties by Folly Beach Corporation
and [FBIC] by deeds recorded in the RMC Office for Charleston County."
Also, the 1920 plat, which was referenced in Seabrook's deed, shows East Indian Avenue extending from lot 201 to the northwest corner of lot 205; and the Road
is not included on the tax map. Furthermore, Seabrook's quitclaim deed to
Demetre references the 1920 plat.
Additionally,
evidence was presented at trial that the Road was paved at one time, and Folly
Beach filled in pot holes on the Road, sprayed the Road for mosquitoes, and removed
trees from the Road after Hurricane Hugo. Brown also testified she and her
family have used the Road daily for twenty years to access her property and the
public uses the Road to park cars, jog, bike, and walk dogs. Therefore, we
find the master correctly held the Road was dedicated to Folly Beach by deed
and plat, and Folly Beach accepted the dedication by using and maintaining the
Road.
C.
Equitable Estoppel
Demetre
also argues the master erred by finding he did not satisfy the elements of
equitable estoppel. We disagree.
"Government
agents, acting within the scope of their authority, can by their acts give rise
to estoppel against a municipality." Landing Dev. Corp. v. City of Myrtle Beach, 285 S.C. 216, 221, 329 S.E.2d 423, 426 (1985). Equitable estoppel is
found to exist when the following elements are present:
(1)
[C]onduct by the party estopped which amounts to a false representation or
concealment of material facts or which is calculated to convey the impression
that the facts are otherwise than and inconsistent with those which the party
subsequently attempts to assert; (2) the intention or at least expectation that
such conduct shall be acted upon by the other party; (3) knowledge, actual or
constructive, of the true facts; (4) lack of knowledge or the means of
knowledge of the facts by the other party; (5) reliance upon the conduct by the
other party; and (6) a detrimental change of position by the other party
because of his reliance.
McCrowey v. Zoning Bd. of
Adjustment of City of Rock Hill, 360
S.C. 301, 305, 599 S.E.2d 617, 619 (Ct. App. 2004). The burden of proof lies
with the party asserting an estoppel. Pamplico Bank & Trust Co. v.
Prosser, 262 S.C. 153, 159, 203 S.E.2d 110, 112 (1974).
Demetre
claims Folly Beach is estopped to repudiate its former interpretation of its
ownership of the Road because he and his agent lacked the knowledge or means to
know whether the city had formally or implicity accepted a dedication of the Road.
Demetre also claims his purchase of the property is evidence of his reliance
and detrimental change in position based on their statements. However, Demetre
should have exercised further diligence in determining the true ownership of
the parcels instead of simply relying on the alleged statements of the mayor
and city administrator, especially because (1) there was initial confusion over
the Road's ownership, (2) Seabrook only gave Demetre a quitclaim deed, (3) the
price for the property was relatively inexpensive, and (4) the Road does not
appear on the tax map. Therefore, we find the master correctly determined
Demetre did not satisfy the elements of equitable estoppel.
II.
The Dock Case
"A
suit for declaratory judgment is neither legal nor equitable, but is determined
by the nature of the underlying issue." Felts v. Richland County, 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991). "To make this determination we
look to the main purpose of the action as determined by the complaint." Estate
of Revis v. Revis, 326 S.C. 470, 476, 484 S.E.2d 112, 115 (Ct. App. 1997). When
"the main purpose of the complaint concerns the determination of title to
real property, it is an action at law." Query v. Burgess, 371 S.C.
407, 410, 639 S.E.2d 455, 456 (Ct. App. 2006); see also Wigfall v.
Fobbs, 295 S.C. 59, 60, 367 S.E.2d 156, 157 (1988) ("The determination
of title to real property is a legal issue."). In an action at law tried
by the master alone, our review is limited to correcting errors of law and we
will affirm the master's factual findings if any evidence in the record reasonably
supports the findings. Lowcountry Open Land Trust v. State,
347 S.C. 96, 101-02, 552 S.E.2d 778, 781 (Ct. App. 2001).
B. Ownership
of the Property
Demetre
argues the master erred by failing to make a determination that he owned all
the property between the Crowleys' and the Beckmanns' lots and the mean high
water mark.
"Historically,
the State holds presumptive title to land below the high water mark." McQueen
v. S.C. Coastal Council, 354 S.C. 142, 149, 580 S.E.2d 116, 119 (2003); Hilton
Head Plantation Prop. Owners' Ass'n, Inc. v. McDonald, 375 S.C. 220, 224,
651 S.E.2d 614, 616 (Ct. App. 2007); see also Hobonny Club, Inc. v.
McEachern, 272 S.C. 392, 396, 252 S.E.2d 133, 135 (1979) ("This Court
has held that lands lying between the usual high water line and the usual low
water line on tidal navigable watercourses enjoy a special or unique status,
being held by the State in trust for public purposes."). "One
asserting title to this land must prove a specific grant from the sovereign[,]
which is strictly construed against the grantee." Coburg Dairy, Inc.
v. Lesser, 318 S.C. 510, 512, 458 S.E.2d 547, 548 (1995).
Demetre
sought a declaration that he owns all the property between the Crowleys' and
the Beckmanns' lots and the mean high water mark, and he sought to quiet any
defects in his title to the land. The master did not rule on either request
and only held the Crowleys and the Beckmanns believed the State owned the land
when they applied for their dock permits, which does not resolve the question
of actual ownership. Demetre does not dispute the presumption that the State holds
in trust for public purposes the property below the mean high water mark. Therefore,
because the master failed to rule on Demetre's requests for a declaration of
ownership and to quiet title to the portions of the lots above the high water
mark, we remand this case to the master for a determination on this issue.
C. Other Issues
We
need not address Demetre's remaining issues because we remand this case for a
determination on whether Demetre owns the land between the Crowleys' and the
Beckmanns' lots and the mean high water mark on lots 209 and 210 East Indian
Avenue.
CONCLUSION
Therefore,
we affirm the master's March 2, 2007 order finding
Folly Beach owns East Indian Avenue and Demetre failed to satisfy the elements
of equitable estoppel. However, we reverse the master's March 26, 2007 order
and remand for findings in accordance with this opinion.
AFFIRMED
IN PART, REVERSED IN PART, and REMANDED.
HEARN,
C.J., and SHORT and KONDUROS, JJ., concur.