Richey v. County of Anderson

• Court: Court of Appeals of South Carolina
• Decided: November 17, 2003
• Docket: 2003-UP-663
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Roger C. Richey and Eula R. Richey,        Appellants,

v.

County of Anderson,        Respondent.

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Appeal From Anderson County
Ellis B. Drew, Jr., Master-in-Equity

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Unpublished Opinion No. 2003-UP-663
Submitted September 17, 2003 – Filed November 17, 2003

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AFFIRMED

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John W. Fields, Michael D. Glenn, Glenn, Haigler, McClain, of Anderson, for Appellants.

Bernie W. Ellis, of Greenville, Robert L. Widener, of Columbia, for Respondent.

PER CURIAM:  Roger C. Richey and Eula R. Richey appeal from the master-in-equity’s determination that the entire length of a road, as shown on a 1966 plat, had been dedicated to the public.  We affirm. 

FACTUAL\PROCEDURAL BACKGROUND

This action involves a dispute over the last twenty feet of a road known as Catrina Lane.  In 1966, the Richeys built Catrina Lane when they sold an acre of their land to their daughter and her husband.  The deed describes the lot as being bordered by the road.  The plat that accompanied the deed shows the road with a forty-foot right-of-way leading from Standridge Road to the northern line of the Richeys’ property.  The Anderson County tax maps since 1982 show Catrina Lane running to the northern end of the Richeys’ property.  The Richeys have not been assessed for the entire length of Catrina Lane as shown on the maps.  Although the County has maintained the road, by first putting tar and gravel on the road and later paving it with asphalt, it did not maintain the last twenty feet at Mr. Richey’s request.  A fence has stood on the Richeys’ northern property line since 1936. 

On September 22, 2000, the County’s Public Works Division Director wrote to Mr. Richey to inform him that the County intended to grant the abutting property owner’s request to tie into Catrina Lane.  He asserted the County’s right-of-way extends from the paved portion of Catrina Lane to the property line.  He instructed Mr. Richey to remove the fence from the County’s right-of-way or the County would remove it for him. 

In response, the Richeys brought this action seeking a declaration that the County has no interest in the 20 by 40 feet strip at the end of the paved portion of Catrina Lane.  The case was referred to the master-in-equity.  The master held the entire length of Catrina Lane to the Richeys’ northern property line had been dedicated to public use.  

The Richeys filed a motion to alter or amend, including affidavits from their daughter and granddaughter stating that the length of Catrina Lane as described in a County ordinance designating all county roads being maintained by the County includes only the paved portion and not the disputed strip.  The master found that even if he considered the affidavits over the County’s objection, they would not change the outcome of the case.  He explained the ordinance merely described the roads that the County was maintaining rather than the extent of all County right-of-ways that were not being maintained as roads.  The master reaffirmed his earlier ruling and denied the motion to alter or amend.  This appeal follows.  

STANDARD OF REVIEW

The determination of whether property has been dedicated to the public is an action in equity.  Tyler v. Guerry, 251 S.C. 120, 125, 160 S.E.2d 889, 891 (1968); Van Blarcum v. City of N. Myrtle Beach, 337 S.C. 446, 450, 523 S.E.2d 486, 488 (Ct. App. 1999).  As an equitable matter tried by a master alone, we may find the facts in accordance with our own view of the preponderance of the evidence.  Townes Assocs., v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).  However, we are not required to ignore the findings of the trial court, which heard and saw the witnesses.  Van Blarcum, 337 S.C. at 450, 523 S.E.2d at 488.

DISCUSSION

The Richeys argue the master erred in ruling that there was an implied dedication of the twenty-foot strip of land at the end of Catrina Lane.  We disagree. 

Two elements are required to perfect dedication:  (1) the owner’s positive and unmistakable intent to dedicate the property to public use, and (2) some form of public acceptance of the land offered for dedication.  Tupper v. Dorchester County, 326 S.C. 318, 326, 487 S.E.2d 187, 191-92 (1997).

The Richeys assert the evidence demonstrates that they only intended to dedicate a portion of Catrina Lane.  It is generally held that where land is divided into lots according to a plat thereof, showing streets, and lots are sold and conveyed with reference to said plat, the owner thereby dedicates the streets to the public.  Outlaw v. Moise, 222 S.C. 24, 30, 71 S.E.2d 509, 511 (1952).   The plat is not only evidence of the existence of the dedication but also of the location of areas dedicated for public use.  Van Blarcum v. City of N. Myrtle Beach, 337 S.C. 446, 451, 523 S.E.2d 486, 489 (Ct. App. 1999).  In the present case, the Richeys conveyed a lot to their daughter and son-in-law referencing a 1966 plat showing Catrina Lane extending to the northern property line.  Mr. Richey further demonstrated his intent that the road was dedicated to the public by requesting the County replace pipes and resurface the road to resolve a watershed problem in a February 26, 1990 letter.  We find the record supports the master’s conclusion that the road the Richeys dedicated to the public extends to the northern property line. 

We next must determine whether the County accepted the entire length of the road.  Under South Carolina law, where there is acceptance of part of a road, the burden of proof shifts to the party seeking to prove limited acceptance of the road.  Baugus v. Wessinger, 303 S.C. 412, 416, 401 S.E.2d 169, 172 (1991).  We find the Richeys have failed to meet this burden.  Acceptance may be implied by the public authority continuously using, working, and repairing the road.  Tupper, 326 S.C. at 326, 487 S.E.2d at 192.  In addition acceptance and dedication may be demonstrated by the governmental authority not assessing taxes on the land.  Id. at 327, 487 S.E.2d at 192.   Both of these modes of acceptance are demonstrated in the record.  The County’s tax maps show Catrina Lane extending to the northern property line.  The County did not assess taxes on the entire length of the road as shown on the maps, including the disputed twenty feet.  In addition, it is undisputed that the County has maintained the road except for the last twenty feet.  The County’s maintenance of the road stopped twenty feet before the property line at Mr. Richey’s request to allow him an unpaved area over which to move his heavy machinery without damaging the surface of the road.  The County’s transportation division director, Marshall Holt Hopkins, testified that until the County received the abutting property owner’s request to tie into Catrina Lane, it did not have a reason to pave to the property line.  He stated Mr. Richey’s request had not interfered with the County’s plans.  He explained that as long at the maintained area served the people who lived along the road, it could have stopped anywhere. 

Hopkins and Thomas Jefferson Ricketson, the County’s planning division director, both testified they believed the county’s right-of-way extended to the northern property line based on the 1966 plat filed by the Richeys.  According to Ricketson, a current county ordinance requires a cul-de-sac be built when a road is not going to connect to another road.  With  Catrina Lane, the pavement merely stops, evidencing an intent that the pavement would be continued in the future. 

The Richeys assert the County’s own Ordinance No. 2001-007, which was passed during the pendency of this action, demonstrates the County’s limited acceptance of Catrina Lane.  The ordinance identifies all roads being currently maintained by the County.  It describes Catrina Lane as being 1758 feet in length.  With their motion to alter or amend, the Richeys submitted affidavits from their daughter and granddaughter, who asseverated that by their measurements, the paved portion of the road was 1754 feet on one side and 1758 feet on the other side.  We agree with the master that this recently enacted ordinance does not negate the County’s past acceptance of the entire length of the road as shown on the 1966 plat.  As the master found, the ordinance merely described the roads the County was currently maintaining.  It does not claim to describe the extent of all of the rights-of-way the County possessed but did not maintain.

In conclusion, we find the Richeys intended to dedicate the entire length of Catrina Lane, as shown on the 1966 plat to public use.  We furthermore find the Richeys failed to meet their burden of proving the County’s limited acceptance of the road.  Accordingly, the master’s determination that the public right-of-way extends to the Richeys’ northern property line is

AFFIRMED.  

HUFF, STILWELL, and BEATTY, JJ., concur.