Wood v. Drost

• Court: Court of Appeals of South Carolina
• Decided: October 9, 2003
• Docket: 2003-UP-587
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Hubert Wood,        Respondent,

v.

Linda R. M. Drost and Ronald Drost,        Appellants.

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Appeal From Horry County
J. Stanton Cross, Jr., Master-In-Equity

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Unpublished Opinion No.  2003-UP-587
Submitted May 12, 2003 – Filed October 9, 2003

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AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED

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John R. Clarke of N. Myrtle Beach, for Appellants.

Ronald R. Norton of Conway, for Respondent.

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PER CURIAM: Linda R. M. Drost and Ronald Drost (the Drosts) appeal a master-in-equity’s order granting an easement and an injunction to Wood and awarding the Drosts $300 in damages on their counterclaim.  We affirm in part, reverse in part, and remand. [1]

FACTS

Wood purchased a 36-acre parcel (Parcel A) of land in 1968.  He owned the property for approximately thirty years, accessing it through a dirt road that ran from S.C. Highway 57, through land owned by Judy D. Clardy.

In September 1994, Judy D. Clardy divided the property where the dirt road was located, selling 4.1 acres (Parcel B) to Wood and an adjacent 5.1 acres (Parcel C) to the Drosts. [2] The boundary between Parcels B and C ran roughly along the middle of the dirt road.  

Wood cleared part of his property to make room for a mobile home in February 1999.  Relying on misplaced surveyor’s flags, Wood inadvertently cleared some trees and shrubs from the Drosts’ property.  As he situated the mobile home on the newly cleared property, he mistakenly placed part of the home on the Drosts’ property. 

Wood and the Drosts agreed to have their properties surveyed again, to determine whether Wood’s mobile home and timber clearing had encroached on the Drosts’ property.  A March 1999 survey revealed Wood’s error.    Consequently, Wood paid for the survey and moved the mobile home entirely onto his property. 

The Drosts also demanded that Wood “pay and provide a fence” between Parcels B and C.  Wood complied, erecting a wooden fence approximately one foot inside his property line.  Later, the Drosts erected a metal fence in the dirt road, along the property line they share with Wood.  The presence of the metal fence curtailed Wood’s access to his Tract A, where he farmed and maintained livestock. 

In September 2000, Hubert Wood initiated the present action to enjoin the Drosts from obstructing or damaging a particular road through which a boundary line between their properties ran.  The action also sought to enjoin the Drosts from interfering with traffic on the road. 

The Drosts answered and counterclaimed, alleging Wood trespassed on their property by cutting down trees and bushes from part of the property and placing a mobile home on part of their property.  They further alleged Wood constructed a wooden fence on their property, constituting a continuing nuisance. 

Upon consent of both parties, the circuit court referred the matter to the Master-in-Equity.  The master issued an order in May 2001 granting Wood’s requested injunction, but awarding $300 damages to the Drosts on their trespass claim.  The Drosts made a Rule 59(e), SCRCP, motion seeking a new trial and/or an amended verdict, which the master denied.  This appeal followed.

ISSUES

I.       Did the master err in finding that the road had been used by vehicular traffic, farm equipment, tractors and logging trucks? 

II.      Did the master err in finding that Wood used the road to access Parcel A since 1968?

III.     Did the master err in finding that the road provided Wood’s only means of ingress to and egress from Parcel A?

IV.     Did the master err in failing to find Wood blocked the road when he placed a mobile home “in the exact location where the road was shown on the plat,” thereby denying access to Eldred Clardy?

V.      Did the master err in failing to make findings of fact and conclusions of law regarding the exact location of the road?

VI.     Did the master err in failing to find Wood’s fence encroached on the Drosts' property?

VII.    Did the master err in failing to consider the impact of the continued presence of utility, water and sewer lines on their property, which were placed there by Woods?  Should Woods be forced to remove them from his property?

VIII.  Was the master’s valuation of the Drosts’ trees supported by the preponderance of the evidence?

STANDARD OF REVIEW

“The determination of the existence of an easement is a question of fact in a law action and subject to any evidence standard of review when tried by a judge without a jury.”  Slear v. Hanna, 329 S.C. 407, 410, 496 S.E.2d 633, 634 (1998).  In an action at law, the appellate court may correct any errors of law, but it must affirm the master’s factual findings unless there is not evidence that reasonably support those findings.  Sea Cabins on the Ocean IV Homeowner’s Ass’n, Inc. v. City of N. Myrtle Beach, 337 S.C. 380, 388, 523 S.E.2d 193, 197 (Ct. App. 1999).

LAW/ANALYSIS

We need not address the Drosts’ issues I, II, and III since they do not challenge the trial court’s finding that Wood has an easement by grant over the road in question. Therefore, the questions of whether the road had been used by vehicular; how long Wood used the road, and whether the road was Wood’s only mean of ingress and egress to Parcel A are irrelevant.  A judgment will not be disturbed where unchallenged findings are sufficient to support the judgment.  Nelums v. Cousins, 304 S.C. 306, 307, 403 S.E.2d 681 (Ct. App. 1991) (citing Dwyer v. Tom Jenkins Realty, Inc. 289 S.C. 118, 344 S.E.2d 886 (Ct. App. 1986).

Notwithstanding the fact that the Drosts failed to challenge the finding of an easement by grant, we have reviewed the record and find the Drosts’ position lacks merit.  We will address each issue separately.

I.

The Drosts first argue that the master erred in finding “that the testimony is clear” that the road had been used by vehicular traffic, farm equipment, tractors, and logging trucks.   We disagree.

In a deposition introduced at trial, Thurman Eldred Clardy, who had been born and raised on the property, and owned adjacent property, testified, “… when we were timbering, that was our access road to move timber out of that property.  And when we cut our original timber, we left some hardwoods and some seed pines to take out later after the property had reseeded.”  Joe Clardy, who once farmed the property and whose wife sold the property to the Drosts and Wood, testified that when he farmed the property in the 1960s, he drove tractors, trucks and miscellaneous vehicular farm equipment down the road to Parcel A.  A second witness, Jerome Bell, testified that he had driven both a truck and tractor down the road.  Additionally, Wood testified that he had driven trucks and tractors down the road.  Accordingly, we find evidence exists to support the master’s finding, and cannot say as a matter of law that the court erred in finding that the road had been used by vehicular traffic.

II.

The Drosts argue that the master erred in finding that Wood used the road to access Parcel A since 1968.  We disagree.

Wood testified that he had used the road to access Parcel A since he purchased the parcel in 1968.  We find this reflects the existence of “any evidence” in the record to support the master’s finding that Wood used the road to access Parcel A since 1968. Furthermore, we cannot say as a matter of law that the master erred in finding Wood used the road to access Parcel since 1968.

III.

The Drosts next contend that the Master erred in finding that the road provided his only means of ingress to and egress from Parcel A.  We disagree.

Wood testified that the road provided the only means to access Parcel A.  Joe Clardy, who used the road while farming the property in the 1960s, testified:

There’s no other road and never has there been a road that you could use for anything other than a footpath or maybe a mule without any equipment behind it.  There were some footpaths but they were not large enough to accommodate even a mule or a wagon.  You could walk the mule or a small drag but you couldn’t get any equipment in [Parcel A].

The Drosts provided no evidence that an adequate alternate route existed to provide ingress to and egress from Parcel A.  Rather, they argue the dirt road could have been widened onto Wood’s property to provide a sufficiently wide road with which he could have accessed Parcel A.  However, we cannot say as a matter of law that this constitutes error on the part of the master, particularly since the Drosts cite no law indicating error in this regard.  Accordingly, we find the master did not err in finding that the road provided Wood’s only source of ingress and egress to Parcel A.

IV. 

The master’s order and the transcript of the proceedings below indicate that the parties agreed that the Drosts’ issues four, five, six and seven would be resolved by having a surveyor flag the width and location of the road, any structures on the road, encroachments or trespasses, utility lines, or fences across the boundary lines. The parties agreed to share the cost of the surveyor.  The record does not reflect whether a surveyor has completed the flagging. Nonetheless, due to the parties’ stipulations, Drosts’ issues four, five, six, and seven cannot form the basis of any alleged error by the master.  An issue conceded in the trial court cannot be argued on appeal.  State v. Benton, 338 S.C. 151, 157, 526 S.E.2d 228, 231 (2000).  A party cannot acquiesce to an issue at trial and then complain on appeal.  Ex parte McMillian v. Morin, 319 S.C. 331, 335, 461 S.E.2d 43, 45 (1995).

We find no evidence in the record supporting the master’s determination that the value of Drosts’ damage totals $300.00.  However, Wood admits to having damaged the Drosts’ property to some extent.  Thus, we remand this issue to the master for determination of damages.

CONCLUSION

For the forgoing reasons, the order of the master-in-equity is 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

GOOLSBY, HOWARD, and BEATTY, JJ.  concur.

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[1] We decide this case without oral argument pursuant to Rule 215, SCAR.

[2] Ronald Drost conveyed his interest in Parcel C to Linda R. M. Drost in March 2000 using a quit claim deed.