Judy v. Kennedy

728 S.E.2d 484, 398 S.C. 471, 2012 WL 1861831, 2012 S.C. App. LEXIS 134
CourtCourt of Appeals of South Carolina
DecidedMay 23, 2012
DocketNo. 4976
StatusPublished
Cited by2 cases

This text of 728 S.E.2d 484 (Judy v. Kennedy) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Judy v. Kennedy, 728 S.E.2d 484, 398 S.C. 471, 2012 WL 1861831, 2012 S.C. App. LEXIS 134 (S.C. Ct. App. 2012).

Opinion

KONDUROS, J.

Beau D. and S. Scott Kennedy (collectively the Kennedys) erected a front gate and a back gate across an ingress and egress easement, respectively, belonging to James T. and Bobby Judy (collectively the Judys). The Judys appeal the master’s ruling the locked front gate can remain in place, and the Kennedys appeal the master’s finding the Judys did not abandon the easement. We affirm as modified.

FACTS

In 1978, Tina and T.C. Kennerty subdivided 195 acres of land located in Dorchester County into three parcels. Tina became owner of two tracts of land, one approximately 12 acres and another approximately 85 acres. T.C. became the owner of a 97-acre tract situated between the 12-acre and 85-acre tracts. Each granted to the other the right to use a 50-foot access easement across the tracts for ingress and egress. Crooked Creek Drive is a fifteen-foot-wide dirt road located mostly inside the easement although the road exits the easement and cuts across adjacent property for a short period because of trees that currently are an obstruction.

Tina’s property was ultimately deeded to the Judys. James has harvested timber from the 85 acres and uses it regularly to host organized deer hunts.1 He testified he may put mobile homes on the property in the future and will continue to harvest timber possibly -with larger equipment. He envisions using Crooked Creek Drive to access the land for these activities. T.C.’s property was conveyed to Scott Kennedy. Scott renovated and occupied a mobile home located at the northern end of his 97-acre tract and constructed a bathhouse, pavilion, and three tree houses overlooking the Edisto River further south. He operated the property as a camp and wildlife preserve and now leases the property to a company for the same purpose. Scott conveyed 9.8 acres at the northwest portion of his 97 acres to his son, Beau. This included the mobile home, which Beau expanded. Beau eventually erected a new home on the property. In 1995, the Judys conveyed a portion of the twelve-acre tract to another party. The deed of [475]*475conveyance did not specifically reserve an easement across the land in the Judys’ favor.

In late 2007, Beau erected a substantial gate across Crooked Creek Drive at the point where it enters his property. The gate, supported by brick pillars, leaves approximately a twelve-foot-eight-inch-wide opening for vehicles to pass through. The gates can be opened by either a handheld electronic device or a stationary electronic pad mounted away from the gate. As one leaves Beau’s property, the gates open automatically when a buried sensor is activated. Sometime later, Scott installed a less substantial metal gate in the easement near the point on the 97-acre tract as it turns to the 85-acre tract. The gate is not across the road bed of Crooked Creek Drive but just south where Crooked Creek Drive exits the easement. After this suit was commenced, Beau provided James with one handheld electronic key to the front gate.

At trial, Beau testified people drove on Crooked Creek Drive although he could generally not determine if they were hunters or not. On one occasion, he had a contentious encounter with a hunter as to who would yield the roadway. In another instance, he came home and found a child he did not know in his home without his permission. This is primarily what prompted him to erect the gate. Beau testified hunting dogs had been in his yard at times but this was not really a concern to him. He further stated the hunts mostly take place on Saturdays and that he did not really even see the hunters entering or exiting the property when he is in his front yard or driveway. James testified the gates unreasonably interfere with the use of his property, particularly for hosting deer hunts, and he is concerned it will impede the possibility of continuing to harvest timber or bring in mobile homes.

The master determined Beau was entitled to keep the front gate in place for the protection of his property and that the front gate did not unreasonably interfere with the Judys’ use of their property. The master required Beau to also provide Bobby with an electronic opening device for the gate. He further concluded the possibility of bringing mobile homes to the 85-acre tract or requiring larger equipment for harvesting timber was too speculative. Finally, he concluded the second [476]*476gate should be removed as it did not appear to protect any interest of the Kennedys. The master supplemented his original order with the finding that the easement was not abandoned by the Judys. These cross-appeals followed.

LAW/ANALYSIS

I. The Judys’ Appeal2 — The Reasonableness of the Front Gate

The Judys contend the master erred in finding the front gate was needed for the protection of the servient estate and in the alternative finding it reasonable that the gate remain locked "with the only access being two electronic devices. We agree in part.

“In an appeal of an equitable action tried before a master authorized to enter final judgment, this Court must review the entire record and make its own findings of fact according to its view of the preponderance of the evidence.” Thomas v. Mitchell, 287 S.C. 35, 37, 336 S.E.2d 154, 155 (Ct.App.1985). “This requirement does not, however, command us to ignore the findings of the trial judge who heard the witnesses.” Id. at 38, 336 S.E.2d at 155.

“[T]he general rule is that the owner of the servient estate may erect gates across an easement if they (1) are so located, constructed[,] and maintained as not to unreasonably interfere with the right of passage of the dominant estate, (2) are necessary for the preservation of the servient estate, and (3) are necessary for use of the servient estate.” Brown v. Gaskins, 284 S.C. 30, 33, 324 S.E.2d 639, 640 (Ct.App.1984).

“Whether the owner of land over which a right of way runs is justified in erecting a locked gate across it depends upon the circumstances. No hard and fast rule may be prescribed. Each case must be controlled, in large measure, by the particular facts and circumstances of the case.” Thomas, 287 S.C. at 39, 336 S.E.2d at 156. (internal citations [477]*477omitted). The court has “applied a balancing test to determine the reasonableness of placing a gate across an easement.” Id.

Beau demonstrated some need to keep trespassers off his property. His main concern had been that a child, unknown to him, was in his home without his permission. Other complaints involved persons, not necessarily members of James’s hunt club, being on Crooked Creek Drive. However, Beau testified to only one specific instance of a confrontation. Unlike other cases in which locked gates have been found necessary, there are no allegations of vandalism or littering on Beau’s property. See Thomas, 287 S.C. at 37, 336 S.E.2d at 155 (finding need to protect servient estate when plagued by trespassers, night hunters and vandals who drove vehicles over planted fields); Brown, 284 S.C. at 32, 324 S.E.2d at 640 (finding need to protect servient estate when trespassers vandalized and littered property and broke into homes located thereon); Ballington v. Paxton, 327 S.C. 372, 376-77, 488 S.E.2d 882

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Cite This Page — Counsel Stack

Bluebook (online)
728 S.E.2d 484, 398 S.C. 471, 2012 WL 1861831, 2012 S.C. App. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judy-v-kennedy-scctapp-2012.