Elwood Construction Co. Ex Rel. Elrod v. Richards

217 S.E.2d 769, 265 S.C. 228, 1975 S.C. LEXIS 259

• Court: Supreme Court of South Carolina
• Decided: August 7, 1975
• Docket: 20080
• Status: Published

Opinions

Littlejohn, Justice:

This action was brought by freeholders to invalidate the annexation of Boulder Bluff subdivision by the city of Goose Creek. The complaint alleges that the annexation brought about as a result of a vote taken on June 8, 1971, is invalid for several reasons. It is alleged, inter alia, that the city of Goose Creek comprises approximately one thousand four hundred (1400) acres, and that the proposed annexed area comprises approximately four hundred twenty (420) acres. It is further alleged that the area sought to be annexed comprises more than one-fourth of the area of the city and is therefore violative of § 47-19.17 of the Code for 1962.

Much of the evidence centers around the determination of the acreage within the city and the acreage within the proposed annexed area.

The matter was tried before the master in equity, who held the annexation valid. Upon appeal to the circuit judge, the recommendations of the master were confirmed. Counsel for the plaintiffs have appealed to this Court, alleging error in three basic particulars:

1. The notice of the annexation election and referendum did not satisfy the mandate of Code Section 47-19.14;

2. The method used to determine the number of freeholders eligible to vote in the annexation referendum did not satisfy the mandate of Code Section 47-19.15;

3. The Boulder Bluff subdivision exceeds one-fourth of the area of Goose Creek in violation of Code Section 47-19.17.

Under the view we take it is necessary to consider only the third question set forth above. Section 47-19.17 reads as follows:

“When the procedure for annexation provided for in §§ 47-19.11 to 47-19.19 is followed the area of the territory proposed to be annexed shall at no time exceed one-fourth of the area of the municipality.”

The lower court construed this statute to mean that the annexed area could not exceed one-fourth of the area of the city after annexation. The court further held that even if the one-fourth requirement applied to the city before annexation, no violation of the statute had been proved.

We are of the opinion that the lower court misconstrued the statute. Clearly, it was the intention of the legislature that no annexation be brought about which involved more than one-fourth of the acreage of the city as it existed prior to the proposed annexation vote.

Having construed the statute, we now proceed to determine whether the lower court erred in failing to find that the proposed annexed area exceeded one-fourth of the area of the city of Goose Creek prior to the attempted annexation.

Proceedings resulting in annexation are presumptively valid and the burden is upon the party attacking the extension of the corporate limits to show that there has not been a compliance with the law. This Court has held on many occasions that a finding of fact by the master in equity, concurred in by the circuit judge, will not be disturbed by this Court unless without evidentiary support or against the clear preponderance of the evidence, or unless based on an error of law. In this case we have such findings by the master and judge.

The plaintiffs presented the testimony of W. L. Gail-lard, a registered surveyor of Charleston with a background of 35 years experience in his profession. His testimony was corroborated in substantial degree by that of S. E. Felkel, a registered engineer and a registered land surveyor who had supervised surveys of several subdivisions in the Goose Creek area, including the Boulder Bluff subdivision. Gaillard testified with the aid of maps and plats of the two areas involved, stating that he reached his conclusions as to' acreage with the use of a planimeter. A planimeter is an instrument used by a surveyor on a plat or map for the purpose of computing the area involved. The plats and maps were at first not admitted in evidence, but were later accepted in evidence by the master and taken into consideration along with the other evidence in filing his report. They were therefore properly considered by the circuit judge and are now properly before this Court.

Mr. Gaillard testified that he computed the area within the city of Goose Creek and found it to be 1333.33 acres. He computed the area within the proposed annexed territory and found it to be 430 acres. It will be observed that this is approximately one-third of the area within the city.

We are impressed by the apparent forthrightness of Mr. Gaillard’s testimony. On cross-examination he admitted a possibility of a small margin of error in making computations, but the possible margins of error were not of such significance as to affect the result and bring about a compliance with the statute.

The master in equity disposed of the acreage issue by saying:

“I have refrained from making a finding of fact respecting the actual area or acreage within the original limits of the City or within the area annexed. A substantial part of the'testimony relates to this one question. However, sifted down and analyzed, there is, in my opinion, insufficient probative evidence upon which to base an affirmative finding as to area or acreage. Some of the exhibits used were clearly not designed to show area or acreage with any degree of accuracy. On the whole, they lack that degree of accuracy or authenticity deemed necessary for such purpose. The methods used in estimating acreage were concededly subject to fluctuation and margins for error in several respects. I must conclude, as a matter of law, that Plaintiffs have failed to meet the burden of proof required, that is to say, to show that the area annexed exceeded the area allowed by statute.”

The circuit judge, in confirming the master’s report, said:

“A review of the testimony leads me to the conclusion that the Master very properly refused to make an affirmative finding of fact as to the areas involved. The testimony leaves open large margins for error and exhibits produced by the Plaintiffs are not of sufficient accuracy or authority or authenticity to form a basis for any such finding.”

So far as the record before us shows, no attempt was made on the part of the city or the promoters of annexation to determine whether the area to be annexed was more, or less, than one-fourth of the area within the city. The first reference at which Mr. Gaillard testified was held on August 31, 1972. When the reference was concluded and the city presented its evidence on September 7, 1972, no evidence was introduced to contradict the Gaillard and Felkel testimony. Their testimony was undisputed and was not significantly weakened by cross-examination. We think that the conclusion of the master and of the lower court that the maps and plats involved were of such inaccuracy and lacking in authenticity as to be disregarded is not warranted by the record.

While it is true that the trier of the fact, in this case the master and the judge, should give weight to the evidence submitted and should believe that testimony which appeals to their sense of reasoning, and while it is true that the court does not always have to accept uncontradicted evidence as establishing the truth, the same should be accepted unless there is reason for disbelief. We have searched the record in this case and find nothing which justifies disregarding the testimony of Mr. Gaillard, the surveyor. He appears to be fully qualified and his method of computing' area with the use of a planimeter is well known to be one commonly used by surveyors.

We conclude that the master erred, and the circuit judge concurred, in failing to find and spell out the acreage involved. The evidence clearly preponderates that the proposed annexed area involves more acreage than one-fourth of that acreage within the corporate limits of Goose Creek.

Inasmuch as the proposed annexation must be declared •invalid because of a violation of § 47-19.17, we do not reach the other two questions enumerated hereinabove. Should another attempt at annexation develop, compliance with §§ 47-19.14 and 47-19.15 should, of course, be observed.

Reversed.

Moss, C. J., and Lewis and Ness, JJ., concur. Bussey, J., dissents.