Opposition Brief — Walton v. Tennessee

No. 00-1915 — FILED

e Hit On 2004

jn The

Supreme Court of the Gnited States.

ROLAND V. ASKINS, JR., INDIVIDUALLY AND

AS TRUSTEE OF RVA TRUST,

Petitioner,

v.

COUNTY OF WILLIAMSBURG, SOUTH CAROLINA;

J. WILLIAM HANNA; WILLIE L. FULMORE;

MARGARET C. MCALISTER LYNCH;

RICHARD F. BURCH; C. B. ASKINS,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF SOUTH CAROLINA

RESPONDENTS’ BRIEF IN OPPOSITION

E. Leroy Nettles, Sr.

Counsel of Record

NETTLES, TURBEVILLE

& REDDECK

P.O. Box 699

Lake City, South Carolina 29560

(843) 493 2221

Counsel for Respondents

THE LEX GROUP ¢ 1108 East Main Street # Suite 1400 ¢ Richmond, VA 23219, !) pl?

(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3660 ¢ www.thelexgroup.com Nv

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...2.ca.cco..cq.ccssccocesscssoscsvesosecceoeee ii

Na 4 on,

STATEMENT OF THE CAGE ...cccccecsccccessccscccsseccsscesccsosssess 1

STATEMENT OF FACTS ..cccssssccssessecsssessees BeBe eh ce 2

REASONS WHY THE WRIT SHOULD BE DENIED....... 3

1. PETITIONER FAILED TO

PRESERVE THE FEDERAL ISSUES

RAISED IN HIS WRIT WHEN HE

FIRST APPEALED THE TRIAL

COURT’S DECISION TO THE

SOUTH CAROLINA COURT OF

P| ASL ae eee eae 3

II. | THIS CASE TURNS UPON THE

APPLICATION OF EVIDENCE

AND FACTS TO WELL SETTLED

RULES OF STATE LAW occccccccesccsscosscesoseosss 6

Ill. NO TAKING OF _ PRIVATE

PROPERTY OCCURS WHEN THE

EVIDENCE SHOWS VOLUNTARY

AND INTENTIONAL DEDICATION

i. 12

a 13

APPENDIX

TABLE OF AUTHORITIES

Cases

Anderson v. Town of Hemingway,

237 S.E.2d 489, 269 S.C. 351i (1977).............

Cardinale v. Louisiana,

FOE LID. SEF Ce isiacsnainsasdeaeeataaaiaeatiaiie’

Cleland v. Westvaco Corp.,

431 S.E.2d 264 (S.C. App. 1993).....sccssscseeeee

County of Darlington v. Perkins,

269 S.C. 572, 239 S.E.24 69 (1977) .ccccccscccess

Crowell v. Randell,

EO) Piet, FOR CEIG) saissixcssocianinssishacnsnetabocssosennin

Dewey v. Des Moines,

N73 OX. F958 CERO) svisccitencssesnniecdinennecannenion

Dolan v. City of Tigard,

$12 US. TFS Ginciseen

Heckler v. Campbell,

4G 1 UE. 456 CII i cssssnscesinsninanssactaeenmentnctioets

Kentucky v. Stincer,

482 U.S. 482 U.S. 730 (1987) .cscccccssessssssvesseee

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982).............ccccsssceseees abeiciaaiasade

Page(s)

Lucas v. South Carolina Coastal Council,

Es, RIE nee ee 4

Mack v. Edens,

320 S.C. 236,

464 S.E.2d 124 (S.C. App. 1995) .....eececsecsseeeeeee 7,9

McGoldrick v. Compagnie Generale Transatlantique,

a Tate NET EPID cnninisesitisicecsininniidiabidncsanihicnndsndeniie 4,5

Miller v. Nicholls,

IU 5

Murdock v. City of Memphis,

Se A a icthih ens sbnicinianceinaiiisnenanadicitesnatgeniaise 5

Owings v. Norwood’s Lessee,

gL LS ee ee ee re amen 5

Penn Central Transportation Co. v. New York City,

ns STEED sascchsnsisicianicinnighasighannictiticdentehiinadnneiaesis 4

Safeway Stores, Inc. v.

Oklahoma Retail Grocers Assn., Inc.,

I i ia a tiesthindlincbiic 4

Shia v. Pendergrass,

222 S.C. 342,72 $.E.2d 699 (1952) ....ccecccccesess 7, 10

State Farm Mutual Automobile Ins. Co. v. Duel,

i ata paisa inclscataniinnin 5

Taylor v. Freeland,

SN I cick nice issn shomalcseiaabliasaniiiensil 4

ill

Weems Steamboat Co. Of Baltimore City v.

People's Steamboat Co.,

is Be UE tiitniheninnininsadeiiinstiiteiiiipatall 7a

Whitney v. California,

ee Se EE Dict stisinittarsiisisdaiateaniateasiieniininninal 5

Youakin v. Miller,

Re a en eI ciesivlnicianpichdeinetevaieicthcepitelnaninhian 4

Statutes

as GD I, © ree ATF Paicicisnecssencastninsihdaissintnciins 10

Other Authorities

Be Ne TU sit tinseiiintisen tale isohabsipiahacinasnscda cectnelcegigbaa 8

ee ee Ne eesiiiaaiiniasiceiciiten atid 8

a TA, FR Bs I 6 EI hetctesensitienibicteniceihasnhsiininianit 8

JURISDICTION

This Court’s jurisdiction is in doubt because this is a

State case where the only federal issue raised by petitioner

was not raised when he appealed the trial court’s Tuling to

the South Carolina Court of Appeals. Cardinale y,

Louisiana, 394 U.S. 437, 438-439 ( 1969)

STATEMENT OF THE CASE

junction with Beulah Road on his western boundary.

Williamsburg County and a number of its citizens then sued

petitioner seeking a declaration that Fulmore Road had been

dedicated to public use and a permanent injunction

preventing interference with the public’s use of Fulmore

Road. The trial court issued a pendente lite order on Au

26, 1996, and a final order on April 30, 1999, declaring

Fulmore Road to be a public road and permanently enjoining

defendant from interfering with public use of the road. The

court based its order on an evaluation of all the evidence,

making a finding the road had been dedicated to public use.

The trial court also found the county and its citizens had

obtained an easement by prescription in the roadway.

Petitioner then appealed to the Court of Appeals where he

did not raise any federal issues or cite any federal

constitutional provisions or federal cases. (See Res.App.

A1l-A6). The Court of Appeals upheld the trial court ruling

been dedicated to public use. The Court of Appeals denied

petitioner’s petition for rehearing. The petitioner then

petitioned the Supreme Court of South Carolina for a writ of

certiorari which was denied. (Pet. App. A-1).

STATEMENT OF FACTS

Fulmore Road is a 1.6 mile improved dirt road

connecting Jones Road and Beulah Road in Williamsburg

County. Jones Road and Beulah Road are both public roads.

There is a stop sign at the eastern end of Fulmore Road at the

junction with Jones Road. Fulmore Road crosses two tracts

of land known as the RVA Trust Property and the McAllister

Estate. Fulmore Road is designated as CR 24-301 on state

highway maps. It has been designated as a public county

road on the general highway map of Williamsburg County

published by the South Carolina Department of

Transportation since at least 1968. Several local residents

provided evidence that Fulmore Road has been maintained by

the county for more than 60 years. (Res. App. B8-B9)

The road has been in existence and used by the general

public for at least 100 years. The road has been regularly used

by school buses, buggies and cars taking local children to

school, and farmers traveling between their homes and their

fields. It has long been regularly used by the general public as

a means of traveling between Jones Road and Beulah Road.

Fulmore Road is a necessary means of access for several local

farmers to reach their farm lands. Over the years, it has also

provided access to a cemetery and a number of residences

located along the road. (Res. App. B8-B9)

Fifty three years ago, petitioner’s father purchased

the land known as the RVA Trust Property through which .7

(7/10) mile of Fulmore Road passes. For the next forty-nine

years, neither petitioner’s father nor petitioner did anything

to interfere with the public’s use of the road or to

affirmatively put the county or the public on notice that they

were merely allowing permissive use of a road they now

claim to be private. They were silent when the road was

added to state and county road maps approximately 35 to 40

years ago. They were silent when the road was named

“Fulmore Road” on maps approximately 15 years ago. They

even remained silent when the road was designated as

County Road 24-301 in 1992. (Res. App. B8-B9)

Until 1996, the only thing petitioner or his father ever

did which might be considered inconsistent with the public

nature of the roadway was to pay taxes on the entire RVA

tract from which the land traversed by the road was not

excluded on the tax rolls.

In July of 1996, petitioner erected dirt barriers in the

road where it crossed his eastern boundary with the

McAllister Estate and at the junction with Beulah Road on

his western boundary. (Res. App. B8-B9)

In reaching its decision to uphold the trial court’s

ruling, the Court of Appeals found that the failure to exclude

the area occupied by a road from the tax rolls and the

consequent payment of taxes on the area was but one factor

to be considered with all the other factors in determining

whether a road had be dedicated to public use. The Court of

Appeals found the other evidence in this case to outweigh

that one factor, specifically noting that the evidence showed

Fulmore Road had been publicly maintained as a public road

for more than 60 years and that it had been used by all types

of general public traffic since at least the late 1920's,

approximately 20 years before petitioner’s father acquired

the land. (Pet. App. A-8 to A-9).

REASONS WHY THE WRIT SHOULD BE DENIED

I. PETITIONER FAILED TO PRESERVE THE

FEDERAL ISSUES RAISED IN HIS WRIT

WHEN HE FIRST APPEALED THE TRIAL

COURT’S DECISION TO THE SOUTH

CAROLINA COURT OF APPEALS.

When petitioner appealed to the Court of Appeals he

did not raise any federal issues or cite any federal

constitutional provisions or federal cases. (See Res.App.

Al-A6). Petitioner first made his federal due process

3

arguments relying on Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992), Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982) and Penn

Central Transportation Co. v. New York City, 438 U.S. 104

(1978) in his Petition for Rehearing to the South Carolina

Court of Appeals. (See Pet. App. A-51 to A-57).

When a party fails to raise an issue in the lower

courts, that party waives his right to raise the issue in

subsequent appeals. The Supreme Court has said “this Court

does not decide questions not raised ... in the lower court[s].”

Taylor v. Freeland, 503 U.S. 638, 645 (1992) citing Youakin

v. Miller, 425 U.S. 231, 234 (1976). The Supreme Court

considers questions raised by the petitioner in a petition for

certiorari which were not preserved in the courts below only

in exceptional cases and only when the cases come from the

federal courts. As this Court pointed out in Kentucky v.

Stincer, 482 U.S. 730, 747-748 fn 22 (1987), “it is ‘the

settled practice of this Court, in the exercise of its appellate

jurisdiction, that it is only in exceptional cases, and then only

in cases coming from the federal courts, that it considers

questions urged by a petitioner or appellant not pressed ... in

the courts below.’” See also McGoldrick v. Compagnie

Generale Transatlantique, 309 U.S. 430, 434 (1940);

Heckler v. Campbell, 461 U.S. 458, 468-469 n.12 (1983).

This Court rigorously enforces its refusal to consider

cases where the petitioner’s federal issues were not

preserved in the state courts below, declining to review such

issues even where it might otherwise do so had the lower

courts considering the case been federal courts. This

principle is applicable even where the issue not preserved

below is an issue of federal constitutional law. In Cardinale

v. Louisiana, 394 U.S. 437, 438-439 (1969), in dismissing a

writ improvidently granted because of lack of jurisdiction,

this Court said:

Although certiorari was granted to consider

this question, the fact emerged in oral

argument that the sole federal question

argued here had never been raised,

preserved, or passed upon in the state courts

below. It was very early established that the

court will not decide federal constitutional

issues raised here for the first time on review

of state court decisions. In Crowell v.

Randell, 10 Pet. 368 (1836), Justice Story

reviewed the earlier cases commencing with

Owings v. Norwood’s Lessee, 5 Cranch 344

(1809), and came to the conclusion that the

Judiciary Act of 1789, c. 20, 25, 1 Stat. 85,

vested this Court with no jurisdiction unless

the federal question was raised and decided

in the state court below. “If both of these do

not appear on the record, the appellate

jurisdiction fails.” 10 Pet. 368, 391. The

Court has consistently refused to decide

federal constitutional issues raised here for

the first time on review of state court

decisions both before the Crowell opinion,

Miller v. Nicholls, 4 Wheat 311, 315 (1819)

and since, e.g. Safeway Stores, Inc. v.

Oklahoma Retail Grocers Assn., Inc.360

U.S. 344, 342, n.7 (1959); State Farm

Mutual Automobile Ins. Co. v. Duel, 324

U.S. 154, 160-163 (1945); McGoldrick v

Compagnie Generale Transatlantique, 309

U.S. 430, 434-435 (1940); Whitney v.

California, 274 U.S. 357, 362-363 (1927);

Dewey v. Des Moines, 173 U.S. 193, 197-

201 (1899); Murdock v. City of Memphis, 20

Wall. 590 (1875).

Petitioner in this case did not raise federal

constitutional due process issues in his initial appeal to the

South Carolina Court of Appeals. Thus, he waived his right

to raise these issues. His petition for rehearing and his

petition for writ of certiorari to the South Carolina Supreme

Court were denied. This Court should likewise deny his

current petition because he did not preserve the issue below

in the state courts of South Carolina.

Il. THIS CASE TURNS UPON THE

APPLICATION OF EVIDENCE AND FACTS

TO WELL SETTLED RULES OF STATE

LAW

~ The Petition should be denied because the judgment

of the trial court in this case was driven by an evaluation of

the evidence applied to well settled principles of state law.

Contrary to petitioner’s assertions, there has been no change

in South Carolina law. This case does not depend upon a

decision of law, much less a question of federal significance

worthy of this Court’s attention.

Petitioner admits that he and his family have

permitted others to use Fulmore Road to travel be. veen

Beulah Road and Jones Road since his family acquired the

surrounding track in 1947. He admits Fulmore Road has

been shown as a county road on maps since 1966, that

Fulmore Road was given a county road number designation

in 1992, and that Fulmore Road has been maintained by the

County since at least 1977. He also admits that the trial

court had evidence from several local residents showing

regular use by the public and school buses for more than 40

years. (Pet. pp. 6-8; Pet. App. at A-35) The evidence,

however, shows extensive public use for -an even longer

period. It shows Fulmore Road has been in existence and

regularly used by the public for over a century. The

evidence also shows the road has been maintained by the

county for public use for more than 60 years, and that no

prior objections to county maintenance or public use have

been raised by petitioner’s family or predecessors in title for

more than half a century. The Court of Appeals specifically

noted that the evidence showed Fulmore Road had been

used by all types of general public traffic since at least the

late 1920's, which is approximately 20 years before

petitioner’s father acquired the RVA tract. (Pet. App.

A-8 to A-9).

Based on this evidence, both the Trial Court and the

Court of Appeals made a specific factual finding that the

evidence provided strict, cogent and convincing proof of a

voluntary and intentional dedication of Fulmore Road to

public use by petiiioner’s predecessors and petitioner..

(Pet. App. A-6 to A-9).

This Court has recognized that in appropriate

circumstances, both the intent to dedicate and public

acceptance of dedication can be implied. Weems Steamboat

Co. Of Baltimore City V. People’s Steamboat Co., 214 U.S.

345, 357 (1909). It has been well settled under South

Carolina law for many years that the intent to dedicate land

to public use can be clearly and convincingly proved

through proof of long term acquiescence to public use,

especially where the road or area has been improved by

public maintenance. Anderson vy. Town of Hemingway, 237

S.E.2d 489, 269 S.C. 351 (1977) citing Shia v.

Pendergrass, 222 S.C. 342 ,72 S.E.2d 699 (1952) ; County

of Darlington v. Perkins, 269 S.C. 572, 239 S.E.2d 69

(1977); Mack v. Edens, 320 S.C. 236, 464 S.E.2d 124 (S.C.

App. 1995). Over 20 years ago, in County of Darlington v.

Perkins, the South Carolina Supreme Court said:

We are of the view, however, that the

continuous and wide spread public usage of

the road for at least fifty years, without charge

or interference from previous owners and

these landowners, clearly establishes the

public character of the road. This conclusion

is fortified by the extent and duration of the

maintenance which the County has performed

on the road. The testimony of the County

Manager White reflects that the County

installed a drainage system adjacent to the

road, ditched the road on numerous occasions,

cleaned the ditches and plowed the road from

time to time, all at the request of various

members of the public, and without any

assistance from the landowners. The

landowners have made no objection to the

continued use of the road by the general

public, or to the maintenance performed by

the County on the road. We conclude that the

evidence is sufficient to support a finding that

the public has acquired an easement in the

road by implied dedication. The intention to

dedicate land to the public may be implied

from circumstances or by acts or conduct of

the owner from which a reasonable inference

of an intention to dedicate may be drawn. 25

Am. Jur. 2d, Dedication § 21. Thus, “where

acts of the owner justify the public authorities

in believing the intention exists and they act

on such belief, a dedication may be found to

have occurred.” 23 Am Jur.2d, supra, § 19.

Such intention may be manifested by the

owners acquiescence in continuous use of the

land by the public under the claim of the

general public right. 23 Am Jur. 2d, supra, §

28-29. 269 S.C. 572, 575-576.

As the trial court pointed out, the facts in this case

are almost identical to the facts in County of Darlington.

(Pet. App. pp. A-21 to A-22). Petitioner is incorrect in his

statement that the Court of Appeals did not consider the

maintenance of Fulmore Road in finding an intent to

dedicate. In the portion of its opinion labeled “Discussion”

where the court points out the evidence supporting the

intent to dedicate, the Court specifically points out the

evidence of a long period of continuous maintenance and

emphasizes the continuing maintenance even after

Williamsburg County ceased maintaining private roads.

(Pet. App. at A-8 to A-9). Both the Trial Court and the

Court of Appeals addressed petitioner’s argument

concerning the history of Williamsburg County road

maintenance and rejected it, finding that the continuous

use of the road by the public for more than 20 years

and the order permitting continuation of maintenance

after the County was ordered to discontinue maintaining

private roads indicated the maintenance of Fulmore Road

had always been maintenance as a public road at the

request of the public. (Pet. App. at A-26 to A-27 and A-8

to A-9;) It should also be noted that while Williamsburg

County had a history of maintaining private roads at the

request of the landowner, petitioner adamantly asserts that

the maintenance of the road traversing his land was not

done at the request of the landowner. (Pet. p. 7) Thus

this case is not distinguishable from County of Darlington

v. Perkins.

Furthermore, the cases which petitioner relies upon

for the proposition that permissive use is not sufficient use

to prove intent to dedicate under South Carolina law are

clearly distinguishable from the facts of the present case.

As Mack v. Edens, 320 S.C. at 239, 464 S.E.2d at 126,

points out, permissive use may not be sufficient evidence of

intent to dedicate where the use is sporadic and

recreational.

In Shia, one neighbor claimed that visitors to his

house had been permitted to drive over another’s neighbors

alley to reach his back door. In Cleland v. Westvaco Corp.,

431 S.E.2d 264 (S.C. App. 1993), the sole purpose for

public use traversing the defendant’s land was to reach a

landing on a river. The Cleland court described the

public’s use as “recreational use of the road to reach Mose

Landing ... “ 431 S.E.2d at 266

The evidence in this case, however, shows Fulmore

Road is part of the normal flow of public traffic in the area.

It is used daily by farmers and their employees going to and

from their work in the fields and by public vehicles such as

school buses. None of the use evidence in this case could

be considered recreational use under S.C. Code Ann. § 27-

3-20 (1977). Petitioner claims that the use is pleasure

driving, but school buses transporting children to and from

school and farmers and their employees traveling to and

from their fields is not pleasure driving.

The trial court made a specific finding that the

public use of Fulmore Road was neither sporadic nor

recreational stating:

This property has been listed on the state

highway maps since 1968 and _ has

continuously been used by the public for more

than fifty years. Moreover, the County has

maintained the road by putting in drainage

pipes, repairing the road, cutting ditches ail of

which has been in the presence of the

predecessors in title. The road connects two

undisputed public roads and has been used by

the citizens of the county on a continuous

daily basis for many years. (Pet. App. A-26,

emphasis added).

10

emneeit Ge yy ee ae gt

The Court of Appeals, which makes its own findings

of facts in actions in equity such as public dedication actions,

also specifically noted:

Fulmore Road is a dirt road approximate:y 1.6

miles long, which connects two public roads.

Willie Fulmore stated that all types of

traffic, including school buses, have used

Fulmore Road since the late 1920's. The

other individual Respondents similarly stated

the public had regularly used the road for as

long as they had been familiar with it. They

complained the Appellants’ barricading of the

road created problems for them and for all the

residents of the area by interrupting the

normal flow of traffic. (Pet. App. A-6 to A-8)

Furthermore, the portion of Shia which petitioner

cites specifically states that payment of taxes is only weak

evidence of the lack of intent to dedicate land to public use.

(Pet. App. A-40). Payment of taxes is the only evidence in

this case tending to indicate a lack of intent to dedicate, and

both the South Carolina Court of Appeals and the Trial Court

found that this weak inference against intent to dedicate was

far outweighed by many other factors clearly and

convincingly proving an intent to dedicate in this case.

While petitioner adamantly claims that he did not

intend to dedicate Fulmore Road to the public, there is no

claim anywhere in his arguments before the South Carolina

Court of Appeals, the South Carolina Supreme Court or this

Court that the land owners prior to his family’s acquisition in

1947 lacked an intent to dedicate Fulmore Road to public

use. However, both the Trial Court and the Court of Appeals

noted regular public use going back to at least the late

1920's, approximately 20 years prior to acquisition of the

land by petitioner’s family. Both courts also pointed out

evidence of public maintenance prior to acquisition of the

11

iand by petitioner’s family. And both courts specifically rest

their findings of intent to dedicate on the intent of

petitioner’s predecessors as well as petitioner’s family.

Two courts have now independently viewed the

evidence in this case and made findings that the evidence

clearly and convincingly proves the intent to dedicate

Fulmore Road to public use by petitioner’s predecessors in

title and petitioner following clearly established principles of

South Carolina law that have not changed for decades and

which is consistent with the law of other states. There has

been no change in South Carolina law and certainly no change

worthy of expending this Court’s precious time and resources.

Il, NO TAKING OF PRIVATE PROPERTY

OCCURS WHEN THE EVIDENCE SHOWS

VOLUNTARY AND INTENTIONAL

DEDICATION TO PUBLIC USE.

Petitioner relies on Dolan v. City of Tigard, 512 U.S.

374 (1994) in his due process arguments, claiming the

Courts of South Carolina have “forced” a dedication of his

land to public use. However, there is no forced dedication in

this case. Two courts have independently examined the

evidence and found clear and convincing proof that

petitioner’s predecessors and petitioner intentionally

dedicated Fulmore Road to public use. Intent is a question

of fact, not a question of law. Petitioner has had his day in

court. Respondents have met their burden of proof. Fulmore

Road was intentionally given to the public. It was not taken,

with or without due process. The discussion of both the

concept of public dedication and compensation for a public

taking in this Court’s decisions running from Weems

Steamboat Co. Of Baltimore City v. People's Steamboat Co.

to Dolan clearly indicate that where the evidence supports a

finding of an intentional and voluntary public dedication,

there is no taking. The non-existence of a taking is implicit

in the finding of an intent to dedicate.

12

CONCLUSION

The Trial Court and the Court of Appeals, upon

independent examination of the evidence in this case, both

found that the evidence clearly and convincingly proved that

petitioner’s predecessors in title and petitioner’s family

intended to dedicate Fulmore Road to public use. That

dedicated was accepted by over a century of regularly non

recreational use by the public as part of the normal flow of

traffic in the area. These factual findings are consistent with

long standing South Carolina law, as well as a decision of

the Court, that in appropriate circumstances both the intent to

dedicate and the public acceptance of dedication can be

implied from long term public use, especially when

supported by other factors such as long term public

maintenance of a road. This case presents a straight

application of facts to well settled law. It presents no issues

of law worthy of this Court’s consideration. Furthermore,

petitioner failed to preserve his federal constitutional

arguments in the lower state courts, and therefore, under this

Court’s ruling in Cardinale v. Louisiana, it lacks jurisdiction.

Accordingly, the Petition should be denied.

Respectfully Submitted,

E. Leroy Nettles, Sr.

Counsel of Record

Nettles, Turbeville & Reddeck

P.O. Box 699

Lake City, S.C. 29560

Ph (843) 493 2221

Counsel for Respondents

13

TABLE OF CONTENTS

Appendix to Brief in Opposition

Page

Excerpts of Brief of Appellant

Roland V. Askins, Jr..........0.cccccccccscssassessssscsseses Resp. App. A

Brief of Appellees

County of Williamsburg,

South Carolina, ef Gl. .......c..sssccosccosscescsescesessoeseees Resp. App. B

Resp. App. i

APPENDIX A

THE STATE OF SOUTH CAROLINA

IN THE COURT OF APPEALS

| APPEAL FROM WILLIAMSBURG COUNTY

HONORABLE M. DUANE SHULER, JUDGE

NO. 96-CP-45-262

County of Williamsburg, and J. William Hanna,

Willie L. Fulmore, Margaret C. McAlister

Lynch, Richard F. Burch, and C.B. Askins,

Respondents,

vs.

Roland V. Askins, Jr. Indivuidally and as

Trustee of RVA Trust, and Buddy Platt,

: Defendants,

:

Of whom Roland V. Askins, Jr., Individually and

as Trustee of RVA Trust, is

a ee ee ae eee ee ee

Appellant.

BRIEF OF APPELLANT

Stuart W. Snow

Dusenbury, Snow & McGee, P.A.

Post Office Box 555

Florence, S.C. 29503

843/669-6481

ATTORNEY FOR APPELLANT

OTHER COUNSEL OF RECORD:

William E. Jenkinson, III E. Leroy Nettles, Jr.

Jennifer R. Kellahan Nettles, Tubeville &

Jenkinson & Jenkinson, P.A. | Reddeck

P.O. Drawer 669 P.O. Box 669

Kingstree, SC 29556 Lake City, SC 29560

(843) 354-7417 (843) 493-2221

ATTORNEY FOR ATTORNEY FOR

RESPONDENT COUNTY OTHER RESPONDENTS

Resp. App. A-1

i.

Il. STATEMENT OF THE CASE

IV. CONCLUSION

STATEMENT OF ISSUES ON APPEAL

TABLE OF CONTENTS

A. The Trial Court Erred in Concluding that

Plaintiffs have Established a Public Dedication of

“Fulmore” Road, Because Plaintiffs Failed to

Provide Cogent and Convincing Evidence of

Public Dedication and Acceptance...............cscscsseee

1. No Easement - No Plat - No Dedication.............

2. Levy of Taxes Disproves Acceptance.................

3. Extensive Public Use Does Not Prove

4. Illegal Public Maintenance Does Not

Demonstrate Public Dedication.....................0000

. The Trial Court Erred in Concluding that

Plaintiffs have Established a Perspective

Easement in “Fulmore” Road, Because the

Evidence Establishes Permissive Public Use

LEORe URINE BI ccancenessnsinarcrsisactilannsenseccninscnes

. The Trial Court Erred in Granting Plaintiffs an

Injunction Prohibiting Defendant from Impeding

the Public From Using the Portion of Fulmore

Road Crossing Defendant’s Property, Because it

Deprives Defendant of Private Property without

ee eisitiinhinseiesinisthensinistatsisisinniioliiinatiaminints

Resp. App. A-2

eee eeseeesseeseeeseee

POSS SSSHSSHSEHES SHEET ESSE E STORE SE SESESOSESOSESESOEESESE EEE ESETESOES

PESOS SSOSOSHSEESOSESOSESHEESESESOSESEEESESEESEEEEEEOSSEOEEESEEESD

TABLE OF AUTHORITIES

Page

I. CASES:

Antonokas v. Anderson Chamber of Commerce,

130 S.C. 215, 126 S.E. (1924) ......c.sscsscccsscsccsccecssessseressscees 6

Babb v. Harrison,

220 S.C. 20, 66 S.E.2d 457 (1951) .....scccsescercssceseeseesees 17

Blanks v. Rawson,

296 S.C. 110, 370 S.E.2d 890 (App. 1988) .......seseeeseees 18

Boyd v. Hyatt,

294 S.C. 360, 364 S.E.2d 478 (App. 1988) .......-ccsssssereeeeees 6

Cleland v. Westvaco Corp., 2

314 S.C. 508, 431 S.E.2d 264 (App. 1993).....scssseeseeeeeeees 8

County of Darlington v. Perkins,

269 S.C. 572, 239 S.E.2d 69 (1977) .......scsccsceseeeee 10, 11, 15

Helsel v. City of North Myrtle Beach,

307 S.C. 24, 413 S.E.2d 821 (1992) ......serserssrseeseees 4, 6,7

Horry County, etc. v. Laychur,

315 S.C. 364, 434 S.E.2d 259 (S.C. 1993)......... $. 7, 135, 16

Jowers v. Hornsby,

292 S.C. 549, 357 S.E.2d 710 (1987) ......cccsscssereersresseneers 15

King v. Poston,

98-UP-435, S.C. App., October 19, 1998.........-sse+ 11, 16

Resp. App. A-3

I. CASES(cont'd):

Mack v. Edens,

320 S.C. 236, 464 S.E.2d 124 (1995)... 4, 5, 8,9

Midland Guardian Co. v. Thacker,

Ee he A TIO wiicstsiiinintshsicbameiiiniiiaeaiiea 15

Morrow v. Dyches,

328 S.C $22, 492 S.E.2d 420 (1997) .....ccccccccccccscsescscescoee 17

Revis v. Barrett,

321 S.C. 206, 467 S.E.2d 460 (S.C. App. 1996).............. 17

Riley v. Town of Greenwood,

Fe Gees FO es FD tiieninninneiaaaan 18

Safety Building & Loan v. Lyles,

Be is, FAP Coie IEE D oiicetsintiistsanesnnessctiaiiaianiaiatsialeaiiniaeal 7

Sanitary & Aseptic Package Co. v. Shealy,

MAS SAL. UGG, Fh TB £8 UGGS) cssrsarisscsonrsenntinanentansas 17

Snell v. Parlette,

273 SK. SUF, 256 SEBEG2O CGT) wcscccisssnsascinescnnennans 15

Town of Estill v. Clarke,

FP e aR, Bae BI les Be CI sescntccdcnsenitsctiiscemnatibenne 5

Townes Assoc. Ltd. v. City of Greenville,

206 SAL. Gh, 225 GiB 17S CEPT sicsinecdenasrenness 4,15

Tyler v. Guerry,

251 S.C. 120, 160 S.E.2d 889 (1968)............... 4, 5,11, 16

Resp. App. A-4

II. MISCELLANEOUS

Article 1, §13, of the S.C. Comstitution...........s:sscsessssersereeneesersenes 5

Rule 52(b), SCRCP .....ssssssssssessessssesnseneessenessssnsencsnsenensensensanenseecs 16

23 Am.Jur.2d, Dedication $79 .........sscssssssssescnsssessrsesssererenesenees 7

39 Am.Jur.2d, Highways, Streets, and Bridges §26 .........-...0++ 18

Resp. App. A-5

I. STATEMENT OF ISSUES ON APPEAL

A. Did the Trial Court Err in Concluding that Plaintiffs

have Established a Public Dedication of "Fulmore" Road,

Because Plaintiffs Failed to Provide Cogent and Convincing

Evidence of Public Dedication and Acceptance?

B. Did the Trial Court Err in Concluding that Plaintiffs

have Established a Prescriptive Easement in "Fulmore" Road,

Because the Evidence Establishes Permissive Public Use Upon

Unimproved Land?

C. Did the Trial Court Err in Granting Plaintiffs an

Injunction Prohibiting Defendant from Impeding the Public

from Using the Portion of Fulmore Road Crossing Defendant's

Property, Because it Deprives Defendant of Private Property

Without Just Compensation?

Il. STATEMENT OF THE CASE

In this action, the trial court declared that a portion of

the property titled in the name of the RVA Trust had become

public property by dedication to public use and public

prescriptive easement, and granted a permanent injunction to

prohibit Defendants from blocking public access thereto. The

trial court rejected Defendant's request for a judgment

declaring that the entire RVA Trust property is private,

including the unpaved lane involved herein, which Plaintiffs

refer to as "Fulmore" road. There is no dispute as to whether

there is a lane traversing the RVA Trust property which has

been traveled by the public; the only issue is whether the

portion of the lane which lies upon the RVA Trust property is

public or private. .

"Fulmore" road is a dirt road of approximately 1.6

miles in length, which intersects with S.C. highway S-45-553

(Beulah road) on its western end, and Jones Road on its eastern

end. Both Beulah road and Jones road are public roads (R. p.

15). "Fulmore” road traverses through two separate

* *

Resp. App. A-6

APPENDIX B

a

THE STATE OF SOUTH CAROLINA

In the Court of Appeals

APPEAL FROM WILLIAMSBURG COUNTY

Court of Common Pleas

HONORABLE M. DUANE SHULER, JUDGE

Case No.: 96-CP-45-262

County of Williamsburg, and J. William Hanna,

Willie L. Fulmore, Margaret C. McAlister Lynch,

Richard F. Burch and C. B. Askins

Respondents

v.

Roland V. Askins, Jr., Individually and as

Trustee of RVA Trust, and Buddy Platt

Defendants.

Of whom Roland V. Askins, Jr.,

Individually and as Trustee of RVA Trust, is

Appellant.

BRIEF OF RESPONDENT

W.E. Jenkinson, III

Jennifer R. Kellahan

JENKINSON & JENKINSON, P.A.

120 West Main Street

Post Office Drawer 669

Kingstree, South Carolina 29556

(843) 354-7417

Attorneys for County of Williamsburg

OTHER COUNSEL OF RECORD:

Stuart W. Snow

Dusenbury, Snow & McGee, P.A. |

Post Office Box 555

Florence, South Carolina 29503 |

(843) 669-6481

Attorneys for Appellant

E. Leroy Nettles, Jr.

Nettles, Turbeville & Reddeck

Post Office Box 699 |

Lake City, South Carolina 29560 |

(843) 662-9008 |

Attorney for other Respondents |

Resp. App. B-2

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF ISSUES ON APPEAL

STATEMENT OF THE CASE

FACTS

ARGUMENTS _

I. Standard of Review.

II. The Fulmore Road was Dedicated to

Public Use

A. The Owner expressed in a positive

and unmistakable manner __ his

intention to dedicate the property to

public use.

1. Extensive long term public usage

implies an unequivocal intent to

dedicate.

2. The Owner acquiesced to

extensive long term public

maintenance from which intent

to dedicate is implied.

B. The County accepted Fulmore Road

as a public road.

C. Assessment of taxes on the Fulmore

Road does not preclude dedication

and acceptance.

Resp. App. B-3

13

16

18

Ill.The County Obtained a Prescriptive

Easement for Fulmore Road.

A. The County’s use was adverse and

under claim of right.

B. The County’s use had _ been

continuous and uninterrupted for

over twenty years and the identity of

things enjoyed was proved.

IV.The Injunction prohibiting the

Appellant from closing his road does

not amount to a deprivation of private

property without just compensation.

CONCLUSION

20

20

23

23

24

EOE ——

TABLE OF AUTHORITIES

Cases

Anderson v. Town of Hemingway, 18

269 S.C. 351, 237 S.E.2d 489 (1977).

Babb v. Harrison, 20

220 S.C. 20, 66 S.E.2d 547 (1951).

Boyd v. Hyatt,

294 S.C. 360, 364 S.E.2d 478

(Ct.App. 1988).

Cleland v. Westvaco Corporation,

314 S.C. 508, 431 S.E.2d 264

(Ct.App. 1993).

9,11,12,13

County of Darlington v. Perkins,

269 S.C. 572, 239 S.E.2d 69 (1977).

r 21

Delk v. Hill,

365 S.E.2d 218 (N.C.Ct.App. 1988).

Eldridge v. City of Greenwood,

331 S.C. 398,

503 S.E.2d 191 (Ct.App.1998)

16,18

Helsel v. City of North Myrtle Beach,

307 S.C. 24, 413 S.E.2d 821 (1992).

Hoogenboom v. City of Beaufort,

315 S.C. 306, 433 S.E.2d 875 (1992)

reh’g denied 317 S.C. 12,

451 S.E.2d 393 (1994).

Resp. App. B-5

Horry County v. Laychur, ;

315 S.C. 364, 434 S.E.2d 259 (1993).

King v. Poston,

98-UP-435 S.C. Ct.App. 10/19/98

Morrow v. Dyches,

328 S.C. 522, 492 S.E.2d 420

(Ct.App. 1997).

Revis v. Barrett,

321 S.C. 206, 467 S.E.2d 460

(Ct.App. 1996).

Sanitary & Aseptic Package Co. v. Shealy,

205 S.C. 198, 31 S.E.2d 253 (1953)

State v. Beach Co.

271 S.C. 425, 248 S.E.2d 115 (1978),

Townes Assoc., Ltd. v. City of Greenville,

266 S.C. 81, 221 S.E.2d 773 (1976).

Tyler v. Guerry,

251 S.C. 120, 160 S.E.2d 889 (1968).

Other Authorities

23 Am. Jur. 2d Dedication § 19

Black’s Law Dictionary 6th ed. 16 (1991).

Resp. App. B-6

14,17,20,2

|

20,21

20

20

7,17

12

12

STATEMENT OF ISSUES ON APPEAL

1. WHETHER THE TRIAL COURT ERRED IN

FINDING THAT THE FULMORE ROAD HAD BEEN

DEDICATED TO PUBLIC USE.

II. WHETHER THERE IS ANY EVIDENCE IN THE

RECORD SUPPORTING THE TRIAL COURT’S

FINDING THAT THE PUBLIC HAD ACQUIRED A

PRESCRIPTIVE EASEMENT IN THE FULMORE ROAD.

STATEMENT OF THE CASE

Williamsburg County and other Plaintiffs filed a Rule

to Show Cause on August 12, 1996, after the Appellant

Roland V. Askins, Jr., individually and as Trustee of RVA

Trust, and Buddy Platt barricaded a road known as the

Fulmore Road on July 4, 1996. The Appellant filed an

Answer and Counterclaim and Return to Rule to Show Cause

with an Affidavit of Roland V. Askins, Jr., on August 16,

1996. A Hearing on the Rule to Show Cause was held on

August 16, 1996, and an Order was issued on August 21,

1996, by the Honorable M. D. Shuler, granting relief of

leaving the road open pendente lite.

Defendants filed a Motion for Summary Judgment

and supporting memoranda on February 13, 1997, and a

Hearing was held on November 20, 1997, before the

Honorable Howard P. King. At such time, he denied the

Defendants Motion for Summary Judgment by Order dated

November 25, 1997.

A merits hearing was held before the Honorable M.

D. Shuler, and an Order was issued by Judge Shuler on April

30, 1999, ordering that the Fulmore Road was a public road

maintained by Williamsburg County and permanently

enjoined and restrained the Appellant from blocking and

impeding the right of the public to use the Fulmore Road.

This appeal followed. The Appellants timely filed a Notice

of Appeal on May 7, 1999.

Resp. App. B-7

FACTS

The Fulmore Road is a dirt road of approximately 1.6

miles in length which intersects with S.C. Highway S-45-553

(Beulah Road) on its western end, and Jones Road on its

eastern end. Both Beulah Road and Jones Road are public

roads. R.15. The Fulmore Road traverses through two

separate tracts of private property: the RVA Trust tract on

the eastern end, and the McAlister Estate tract on the western

end. R.15.

Fulmore Road is designated as CR 24-301 on the

state highway map system and has since at least 1968 been

designated as a “county road” on the general highway map

of Williamsburg County, South Carolina, prepared by the

South Carolina Department of Transportation in cooperation

with the United States Department of Transportation, Federal

Highway Administration. R.16,17; R.App. 2, line 23 —

R.App.3, line 21. Williamsburg County has maintained

Fulmore road at least monthly or as often as weather would

permit for more than twenty (20) years, has installed

concrete pipe under the road to direct water on at least two

occasions prior to or in 1978, and has hauled numerous loads

of dirt to repair this road. R.16; R.81, line 11 — R.82, line

23; R.87, line 4 — R.88, line 20; R.53, line 10 — R.54, line 3,

R.55, lines 1-4; R.27-28.

A number of citizens including Richard F. Burch,

Willie “Buck” Fulmore, James William Hanna, C. B. Askins,

Sr., John Benson Rodgers, Zell Gaskin and Margaret C.

McAlister Lynch all live on or near the road in question and

have submitted Affidavits in this case. R. 21, R.19, R. 24,

R.23, R.25, R.App. 1, R. 20. Fulmore Road is necessary to

allow Mr. Burch to reach his other farming operation which

would otherwise require him to travel more than four (4)

miles one way if Fulmore Road was closed. R.21. Mr.

Burch has always used Fulmore road and he has been

familiar with it for over 40 years and knows that it has been

maintained by Wiliiamsburg County. R.21.

Resp. App. B-8

Willie Buck Fulmore currently lives on Fulmore

Road. His Affidavit states that Fulmore road has always been

used and traveled by the public and plowed by Williamsburg

County. Mr. Fulmore went further to state that all kinds of

traffic have used the road, including school buses since the

late 1920s of his own personal knowledge. R.19.

James William Hanna has lived in the area all of his

life and travels the road regularly to get access to his

property in the vicinity of Fulmore Road. Hanna’s Affidavit

states that the road has been maintained by Williamsburg

County for at least 40 years. R.24.

C. B. Askins, Sr.’s Affidavit states that Fulmore

Road has been plowed or used by the public for at least 20 or

more years. R.23.

John Benson Rodgers is 65 years of age and was born

and raised on Fulmore Road, and as long as he has been

alive, Fulmore Road has been used and traveled by the

public as well as maintained by Williamsburg County. He

has personally witnessed the public use of the road and

County maintenance for over 60 years. Additionally, he is

responsible for Rodgers Cemetery on Fulmore road which

has been operated for longer than he has lived, and people

have always traveled the Fulmore Road to get to the

Cemetery. R.25.

Zell Gaskin was born and raised on Fulmore Road.

She confirms that the road has always been open to and used

by the public. Gaskins’ father lived on the road and used it

since at least 1899. R.App.1.

Finally, Margaret C. McAlister Lynch is a lifelong

resident of the area and owns 515 acres on both sides of

Fulmore road adjacent to the Askins tract. She has owned

the property since 1961 and states that the road has been

used by the public all of the years she has owned the

property. Since 1961, Lynch has utilized the road on a

regular, almost daily basis, and it has been plowed and

maintained by Williamsburg County since she has owned the

property in 1961. R.20.

Resp. App. B-9

R. V. Askins, Sr., a predecessor in title and creator of

the R. V. Askins Trust has observed on numerous occasions

county work being performed on the Fulmore Road as it

passes through his property and has accepted the

improvements performed by Williamsburg County for more

than forty (40) years. R.62, line 25 — R.63, line 8, lines 22-

23, R.58, line 19--R.59, line 10.

ARGUMENTS

I. Standard of Review.

In its review of this action, the Court must utilize

varying standards of review depending on the issues

presented. An action to determine whether a roadway has

been dedicated to the public is an action in equity. Tyler v.

Guerry, 251 S.C. 120, 160 S.E.2d 889 (1968). Additionally,

the scope or extent of an easement is a question in equity;

however, the existence of an easement is a question of fact in

a law action. Eldridge v. City of Greenwood, 331 S.C. 398,

503 S.E.2d 191 (Ct.App.1998). As to the equitable matters,

this court can find facts in accordance with its own view of

the preponderance of the evidence. Townes Assoc. Ltd. v.

City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

However, as to the question of fact in the action at law on the

determination of whether or not a prescriptive easement

exists, this Court reviews factual findings only for evidence

which reasonably supports the trial judge’s findings.

Eldridge at 398.

In the present situation, the County can meet its

burden by a preponderance of evidence that the Fuimore

Road was dedicated to the public and accepted by

Williamsburg County. Furthermore, evidence is present in

the record to support the trial judge’s finding of a

prescriptive easement.

Resp. App. B-10

Il. The Fulmore Road was Dedicated to Public

Use.

The necessary elements the County must prove to

show dedication to public use are 1) the owner must express

in a positive and unmistakable manner {lis intention to

dedicate his property to public use, and 2) there must be an

acceptance of such property by the public. Horry County v.

Laychur, 315 S.C. 364, 434 S.E.2d 259 (1993).

A. The Owner expressed in a positive

and unmistakable manner his intention to dedicate the

property to public use.

In the present case, evidence of an express dedication

of the Fulmore Road to public use exists in the form of

public maps and plats. One 1966 plat on lands of Carol R.

McAllister (now owned by the Lynch family) reveals

unlabeled dashed lines across the RVA Trust property where

the Fulmore road is situate. R.104. An unnamed road,

depicted as an unpaved county road, is depicted traversing the

RVA Trust property in State Highway maps published on and

after January 1, 1966. R.17. Fulmore Road was first formally

named and identified as such on maps by J. D. Brockington

in or about 1984. R.16. Finally, Fulmore Road was given a

county road number CR-24-301 by William Wheeler under a

contract with Williamsburg County in 1992. R.16.

However, an intention to dedicate property to public

use “need not be made by deed or other writing, but may be

effectually and validly made by acts or verbal declarations.”

Boyd v. Hyatt, 294 S.C. 360, 364 S.E.2d 478 (Ct.App.

1988). Intent to dedicate can be implied from circumstances

or the acts and conduct of the owner which give rise to such

an inference. County of Darlington v. Perkins, 269 S.C. 572,

239 S.E.2d 69 (1977). When proving an implied public

dedication, the proof must be strict, cogent and convincing,

and the acts proved must be inconsistent with any

Resp. App. B-11

construction other than dedication. Cleland v. Westvaco

Corporation, 314 S.C. 508, 431 S.E.2d 264 (Ct.App. 1993).

Although dedication may not be implied from

permissive, sporadic and recreational use of the property, Id°

citing State v. Beach Co. 271 S.C. 425, 248 S.E.2d 115

(1978), an owner’s intent to dedicate may be implied from

the long public use of the land to which the public claims

dedication. Id. citing Hoogenboom v. City of Beaufort, 315

S.C. 306, 433 S.E.2d 875 (1992) reh’g denied 317 S.C.

12,451 S.E.2d 393 (1994).

a. Extensive long term public

usage implies an unequivocal intent to dedicate.

Because an intention to dedicate may be implied

from the circumstances, County of Darlington, at 575, a

review of the particular circumstances of the extensive long

term public usage is mandated.

In the present case, this road connects two public

roads. R.15. Richard Burch, a local farmer, submitted an

Affidavit stating that he has traversed the Fulmore Road for

over 40 years, knew it to be a public road maintained by the

county, and is necessary to allow him and his employees to

reach his farming operation which would otherwise require

him to travel more than four miles one way if the Fulmore

Road was closed. He goes further to state “the road has

always been used commonly and regularly by the public. It

has always been a public road.” R.21.

Willie “Buck” Fulmore, a_ sixty-nine-year-old

gentleman was born and raised on Fulmore Road and has

lived there all of his life. He states, “I can report that

Fulmore Road has always been used and traveled by the

public. I can also state that the road has always been plowed

by Williamsburg County. All kinds of traffic used the road

on a regular basis, including school buses. I personally

know this has been true since the late 1920’s and I am told

Resp. App. B-12

the road was there for much longer than I have been alive.”

R.19.

James Williaen Hanna has lived in the area his entire

life and travels the road regularly to get access to his

property in the vicinity of the Fulmore Road. He stated that

barriers on the section of Fulmore Road across the RVA

Tract have severely limited access to his family’s property.

Also, the barriers interrupted the normal flow of traffic in the

area. He states as follows “Having lived in this area all of

-my life, I can state unequivocally that Fulmore Road has

always been used and traveled commonly and regularly by

the public. I can also report that the road has been

maintained by Williamsburg County for at least forty years.”

R.24.

C. B. Askins, Sr., a neighboring land owner, stated

that he has been familiar with the Fulmore Road for twenty

years. He states that “the road has always been used by the

public,” and “it has always been maintained by

Williamsburg County.” He states that the Fulmore Road...

had been unilaterally closed by a landowner. That has

created a problem for all of the residents of that area by

interrupting the normal flow of travel. For example, I used

Fulmore Road to go to Kingstree from my farm. That is no

longer possible. There are no other alternatives as short or

convenient.” R.23.

John Benson Rodgers, a sixty-five-year old man born

and raised on the Fulmore Road, stated that as long as he has

been alive, the Fulmore Road has been used and traveled by

the public and maintained by the County. He personally

witnessed the public use of the road and county maintenance

for over 60 years. Additionally, he is responsible for

Rodgers Cemetery on Fulmore Road which has been

operated for longer than he has lived, and people have

always traveled the Fulmore Road to obtain access to the

cemetery. R.25.

Zell Gaskin was born and raised on Fulmore Road,

and she confirmed that the road has always been open to and

Resp. App. B-13

used by the public. Her father also used the road and lived

on the road, and he used it from approximately 1899 until he

passed away. R.App. 1.

An additional witness, Margaret C. McAlister Lynch

is a lifelong resident of the area and owns the 515 acre farm

on both sides of the Fulmore Road adjacent to the RVA

Trust Tract. She has owned the property since 1961 and

states that the road has been used by the public for all of the

years that she has owned it. She uses the road on a regular,

almost daily basis, and she has personally witnessed the

plowing and maintenance of the road by Williamsburg

County since she has owned the property in 1961. R.20.

The County of Darlington experienced a similar

situation to the one at hand in County of Darlington, at 572.

In the Darlington case, the county brought an action against

owners of a tract of land to determine the right of the public

to use a recreational area known as Whipples Landing

located on Louther’s Lake and a dirt road which connected

the public road with the landing area. The Darlington Court

found evidence to support a finding that the public had

acquired an easement in the road by implied dedication.

Citing 23 Am. Jur. 2d Dedication § 19, the Court quoted

“where acts of the owner justify the public authorities in

believing the intention exists and they act on such belief, a

dedication may be found to have occurred... . Such

intention may be manifested by the owner’s acquiescence in

continuous use of the land by the public under the claim of

the general public right. “ Darlington at 576.

In the Darlington case, the parties stipulated that

there were many members of the public who could testify

that the road and “landing” in question had been used as a

public road for approximately 75 to 80 years. The

Darlington Court stated, “We are of the view, however, that

the continuous and widespread public usage of the road for

at least 50 years, without charge or interference from

previous owners and these Landowners, clearly establishes

the public character of the road.” Darlington at 575.

Resp. App. B-14

eee eee

iti =e *

Tee A ee se Oe Oe ee ee eee ee |

The Appellant argues his failure to interfere with the

public’s usage of the road amounts to permissive use.

Distinguishing an owner’s acquiescence in long public use of

his land rising to the level of an intent to dedicate from an

owner’s permissive allowance of the public using his private

land requires an in depth factual examination. Acquiescence

is defined as “ . . . Passive compliance or satisfaction;

distinguished from avowed consent on the one hand, and, on

the other, from opposition or open discontent. Conduct from

which assent may be reasonably inferred.” Black’s Law

Dictionary 6th ed. 16 (1991). Black’s Dictionary goes

further to distinguish acquiescence from laches by making

the following distinction: “* Acquiescence’ relates to

inaction during performance of an act while ‘laches’ relates

to delay after act is done.” Id. (emphasis added).

In the present circumstance, no question exists that

prior to the Appellant's instigating the present action, no

charge or interference from any use of the public of the

Fulmore Road traversing the RVA Tract has ever been

performed. Based upon the sworn testimony of the various

concerned landowners and members of the public outlined

above, the denotation as a public county road on county

maps, state highway maps, on an old plat, and extensive long

term public usage of this property shows clear and

convincing evidence of dedication to the public by implied

unequivocal consent.

2. The Owner acquiesced to

extensive long term public maintenance from which

intent to dedicate is implied.

In the present case, the Appellant makes much of

Williamsburg County’s notoriety of improperly maintaining

private roads. The premise for all litigation concerning

Williamsburg County’s improper maintenance of private

roads is based upon private landowner’s requests that the

County use its equipment or manpower to service private

Resp. App. B-15

|

roads. In the situation at hand, the Appellant does not argue

that he requested any public service for a private purpose.

The flaw in his argument is that he seeks to privately benefit

and penalize the, public from the allegedly illegal

maintenance that the County has been performing on his land

with his full knowledge. R.62, line 25 —R.63, line 8, lines

22-23. The case at hand is remarkably on point with the

County of Darlington case, and the Appellant seeks to

distinguish the present case by the proposition that “any

public maintenance by Williamsburg County was illegal and

does not reflect an implied intent to dedicate or any

acceptance of such an implied dedication.” Appellant’s

Initial Brief p. 10. The Appellant cites the County’s

Memorandum of Law submitted in the case of King v.

Poston which stated that “the prior conduct of the county in

plowing the road in question has no precedential or

persuasive value in determining whether the road is public or

private.” However, this statement goes to the question of

public acceptance of the dedication of the road, not to the

intent to dedicate.

A careful examination of the County’s litigious past

with regard to road maintenance reveals that the County had

in the past accepted roads intended to be dedicated for public

maintenance for public maintenance that should not have

been accepted. King v. Poston, 98-UP-435 S.C. Ct.App.

10/19/98, propounded by Appellant as controlling, involved

a private landowner who was upset because he wanted the

County to continue maintaining a road the landowner

claimed had been dedicated to public use; however, the

County would no longer accept it due to the failure of a

public purpose in maintaining what to the County was an

obviously private road. The Court’s finding that

Williamsburg “County’s maintenance of Stewart Road over

the years before the Circuit Court orders were issued is not

sufficient to establish the public character of the vicinity

such that the area could be considered ‘improved.’ [because]

The testimony of the witnesses and the orders themselves

Resp. App. B-16

indicate Williamsburg County routinely maintained private

roadways for the accommodation of landowners.” King v.

Poston, 98-UP-435.

The County’s position is that it acted in good faith in

full accordance with the Order of the Honorable Johnathan

7. McCowan issued on October 22, 1984, Case No.: 84-CP-

45-321. Section 2(c) of this Order allows the County to

maintain roads which have been in continuous use for more

than twenty years without any written documentation as long

as there was no question or controversy surrounding the road

in question. R.111-R.118.

The facts indicate that the Appellant did not request

public maintenance of his allegedly private road. There is no

evidence in the record that Williamsburg County maintained

this allegedly private road on the request of any private

landowners situate along the road. The evidence is also clear

that not only did the Appellant have knowledge that someone

was maintaining his allegedly private road; but also, that he

personally witnessed Williamsburg County maintaining his

road. R.62, line 25 — R. 63, line 8. This conduct rises to the

level of acquiescence in the dedication of this road to the

public. At the very least, this conduct rises to the level of

unclean hands in sitting back, watching and allowing the

public to use and the County to maintain a private road every

four to six weeks for well in excess of twenty (20) years, and

then to claim that the maintenance was illegal.

The Fulmore Road received public maintenance from

the County because it was widely used by the public. R.19,

R.20, R. 21, R.23, R.24, R.25, R-App. 1, R. 97, lines 9-15

(the County employee who actually performed the work on a

‘monthly basis). The County did not obtain any further

written documentation regarding a perpetual easement of the

Fulmore Road because prior to this litigation, there was

never any questions raised by anyone as to the public nature

of this road. Evidence in the record exists showing that for

the past sixty years, the County has plowed and scraped the

Fulmore Road. R.25. In the past twenty years, the County

Resp. App. B-17

installed drainage pipes under Fulmore Road in at least two

locations, has cut bushes on the road, has repaired the road

and has maintained the road almost monthly by scraping it

and hauling dirt to repair the road. R. 27, R. 81, line 11 —-

R.82, line 23, R. 87, line 4 — R. 88, line 20; R. 53, line 10 —-

R. 54, line 3, R. 55, lines 1-4.

B. The County accepted Fulmore Road

as a public road.

In order to perfect dedication, there must be an

express or implied acceptance of a dedication before it is

complete. “No formal acceptance is necessary to constitute a

valid dedication.” Boyd v. Hyatt, 294 S.C. 360, 366, 364

S.E.2d 478, 481 (Ct.App. 1988). The acceptance must also

be made within a reasonable time. Helsel v. City of North

Myrtle Beach, 307 S.C. 24, 413 S.E.2d 821 (1992).

Acceptance by the public of the property dedicated may be

implied by the public’s continuous usage of the property,

Id., and “the sufficiency of- the use depends on the

circumstances of each case.” Boyd at 366, 481. In the

Helsel case, they found acceptance of the offer of dedication

through a public authority’s using, repairing or working the

streets. Helsel at 27.

In the present case, the public and the County

accepted the offer of dedication by travelling the Fulmore

Road extensively for sixty years or more. R. 25. Other

sworn Affidavits show public use in travelling the Fulmore

Road for twenty or thirty years. This traffic includes school

buses, members of the public, and visitors to the Rodgers

Cemetery located on the Fulmore Road. R.19, R.25, R. 20.

At no time over the past sixty or more years prior to this

litigation did the Appellant assert to the public the private

nature of the road by warning or challenging the public use

of the road.

The Fulmore Road was accepted for dedication by

the County’s performing maintenance on the road through

installing drainage pipes in the late 1970s, R. 87, lines 4-12,

and scraping and hauling dirt to repair the road for in excess

of sixty (60) years. R. 25, R. 19. Evidence in the record

shows monthly maintenance of the road for in excess of 30

years. R. 53, lines 1-24, R.55, lines 1-4, R.56, line 22 -

R.57, line 6; R. 25, R. 19.

Appellants make much of Williamsburg County’s

litigious past regarding illegal public maintenance. The -

County’s history with regard to public maintenance of

private roads is one factor to be considered in whether or not

it accepted this road as a public or private road. See Tyler v.

Guerry, 251 S.C. 120, 160 S.E.2d 889 (1968) (stating that

“(t]he fact that the county road building authority assisted the

landowners by supplying labor and equipment is not

conclusive nor is the fact that the road may have been

worked on occasionally controlling.”). In Tyler v. Guerry,

the public sought public dedication of a road and a

recreational area known 4s Brown’s Landing. The

landowners in Tyler had worked with the County in

obtaining labor and equipment and that the road had been

worked occasionally. The Tyler Court stated “Certainly the

action of the county has not been of such character that this

section of road has become a part of the county system.”

Tyler at 127, 892. In the present case, the action of the

county had risen to the level of the road being a part of the

county and state highway system since 1966. R.17.

In an unpublished opinion issued by this Court in

October, Plaintiffs sought desperately to have a road

declared public so that they could obtain public maintenance

of it by the Defendant Williamsburg County. King v. Poston,

98-UP-435 (Ct.App. Oct. 19, 1998). In that case, the County

publicly maintain the road due to its private nature. R.69,

line 16 — R.70, line 16. In that opinion, the Court held that

county maintenance of the road in question was not

Resp. App. B-19

sufficient to establish the public character of the vicinity.

King at 8. “The testimony of witnesses and the orders

themselves indicate Williamsburg County routinely

maintained private roadways for the accommodation of

landowners.” Id. The King case involved a single lane

unpaved road which served no public purpose. It had been

used by the lessees of the hunting and farming rights to the

private tract of land, however, an important distinction is that

the original maintenance was at the request of the private

landowner and the road had since been abandoned by the

county. In the case at hand, no evidence exists that any such

maintenance on the Fulmore Road was at the request of the

Appellant herein — more importantly, it was maintained with

his acquiescence and knowledge that members of the general

public traversed the Fulmore Road on a daily basis. The

Fulmore Road is distinguishable from the Stewart Road for a

primary reason that the Stewart Road served no valid public

purpose — the primary reason why Williamsburg County did

not maintain the Stewart Road.

C. Assessment of taxes on the Fulmore

Road does not preclude dedication and acceptance.

The Appellant further argues that because he has paid

taxes on this land, it tends to prove no dedication. No

question exists that evidence of assessment and payment of

taxes on property claimed to have been dedicated to public

use is admissible on the issue of whether there has been

dedication and acceptance. Anderson _v. Town of

Hemingway, 269 S.C. 351, 237 S.E.2d 489 (1977).

However, nonassessment or assessment of taxes on land is

not conclusive on the issue of dedication and acceptance.

Helsel v. City of North Myrtle Beach, 307 S.C. 24, 413

S.E.2d 821 (1992). The nonassessment or assessment of

taxes on land may be considered in conjunction with other

facts to show there has been a dedication and acceptance.”

Helsel at 28. :

Resp. App. B-20

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The County stipulated that as of 1967, 1.2 acres were

removed from the tax assessment of the McAlister Estate

tract, the other private tract on which the Fulmore Road

traverses, representing a right-of-way for a public road

across the McAlister Estate tract. R. 15. No taxes have been

levied or paid upon the McAlister 1.2 acre portion by any

owner of said tract since that time. Id. Furthermore, the

County concedes that it has levied taxes on the entire 191.5

acre RVA Trust property. R.16.

The County Tax Assessor Lois Martin testified that

where there is a public road going through a piece of private

property, it is normally taken out of the property for tax

purposes because the property owner will come and tell

them. R.76, lines 5-13. She goes further to testify that

“there are certain things in [her] office . . . that [she is] oniy

allowed to do by the property owner requesting it.” R.76,

lines 19-21. The Appellant argues that this constitutes

evidence disproving his intent to dedicate; however, Ms.

Martin goes further to state that “Let me give you a for

instance, and this falls in the same line. If you have given an

easement to a power company . . . for a power line easement

over your property, you are paid for that easement. You

have a length and a width of that easement, and I don’t pull

that property out and put it at a lower rate without a written

request from the property owner.” R.76, line 23-R.77 line 5.

Due to the rural nature of this land, the de minimis

amount of taxes involved, and the failure of the landowner to

take any action for itself to request that it pay no taxes, the

county argues that the remaining facts proving intention to

dedicate outweigh the Appellant’s argument based upon

payment of taxes.

Resp. App. B-21

Ill. The County Obtained a Prescriptive

Easement for Fulmore Road.

To establish a prescriptive easement, the County

bears the burden of proving the following elements: 1) the

public’s continuous and uninterrupted use or enjoyment of

the right to use and traverse the Fulmore Road for a period of

twenty years; 2) the identity of the things enjoyed — the

Fulmore Road; and * the use of the road must have been

adverse or under a claim of right. Babb v. Harrison, 220

S.C. 20, 66 S.E.2d 547 (1951). As stated above, determining

whether or not an easement exists is a question of fact in an

action at law requiring this court review the record for any

evidence supporting the trial judge’s finding. Eldridge at 398.

A. The County’s use was adverse and

under claim of right.

Prescriptive easements can be established through

use which is either adverse or under a claim of right. Revis

v. Barrett, 321 S.C. 206, 467 S.E.2d 460 (Ct.App. 1996).

Use under claim of right is non-permissive use. King v.

Poston, 98-UP-435; Sanitary & Aseptic Package Co. v.

Shealy, 205 S.C. 198, 31 S.E.2d 253 (1953) (finding a

private prescriptive easement upon an individual mistakenly

believing an alleyway was a public driveway).

The Appellants claim that issues as to whether

“permissive” use can be “adverse” was resolved in this

Court’s decision in Morrow v. Dyches, 328 S.C. 522, 492

S.E.2d 420 (Ct.App. 1997). The Morrow case involved

parties who were asserting a private prescriptive easement

over an area adjacent to the Plaintiff's grocery store for

parking. In this case, this Court’s scrpe of review on the

determination of whether an easement existed or not was

whether there was any evidence supporting the trial judge’s

finding of no easement. Morrow at 526, 423. The Morrow

Court stated that

Resp. App. B-22

It could possibly be contended that Morrow’s

belief that he had a right-of-way was sufficient

for a prescriptive easement pursuant to a “claim

of right.” However, the only evidence regarding

Morrow’s predecessor-in-interest was that

Morrow “thought” Raymond Still had a right-of-

way across the property. This evidence is

insufficient to establish that Still had a belief

amounting to a claim of right, and again tacking

requires proof of sufficient use for predecessors

in interest as well. . . . the [Morrows] have only

owned the property since October ae

Morrow at 529, 424.

The present case is distinguishable from Morrow.

The claim of right the Morrows claimed was based upon

their predecessor in interest Mf. Still, as the Morrows had

only owned the property since October of 1992, and tacking

a claim of right requires proof of sufficient use for

predecessors in interest as well. Id. Another important

distinction is that the claim of right and adverse use being

asserted here is by the public — not a private landowner.

Although the Morrow case involved a parking lot for the

Morrow’s store, and the general public had parked there

during town festivities, it was not asserted that there had

been long term public usage and/or long term public

maintenance — a public easement was not being asserted.

Furthermore, there was no evidence that the Morrows had

maintained or improved the parking lot themselves.

Just as in King v. Poston, 98-UP-435, a finding of

hostility is inherent in the trial court’s finding that the

Plaintiff's use of the Fulmore Road was under claim of right.

King at 4. The public and the County certainly believed that

the Fulmore Road was a public road, and “use under a

mistaken claim of right does not establish permissive use as

a matter of law.” King at 5 citing Delk v. Hill, 365 S.E.2d

218 (N.C.Ct.App. 1988).

Resp. App. B-23

The evidence of use that is adverse or hostile and

under claim of right in the matter at hand upon which the

trial judge relied is clear. The Fulmore Road has been listed

on the state highway maps since 1966 and has continuously -

been used by the public for more than sixty (60) years. R.

17, R. 25. Evidence in the record reflects the public opinion

that there was never a question as to the public nature of the

Fulmore Road. The County has maintained this road by

putting in drainage pipes, repairing the road, cutting ditches,

some of which has been in the physical presence with the

actual knowledge and acquiescence of the predecessors in

title. R. 62, i. 25 — R.63, 1. 8. Additionally, the road

connects two undisputed public roads and has been used by

the citizens of the county on a continuous daily basis for

many years. R. 25, R.20, R. 23, R. 19, R.App.1.

The County employee who actually plowed and

graded the Fulmore Road testified in his deposition that- he

had plowed the Fulmore Road approximately one per month

since 1984. R. 84, lines 7-10. He further testified that about

17 or 18 years ago, in approximately 1978 or 1979, that he

worked with the bridge crew who actually laid concrete pipe

in two places on this road for a ditch and laid four joints of

five foot pipe which was paid for by the county. R.87, lines

4-12. Over the 130 to 140 times Mr. Mosely testified that he

had been plowing the road, he testified that no one ever

interrupted him to stop plowing the road nor did they

interrupt him or tell him to stop laying the pipe on the

Fulmore Road, nor did they interrupt him or question him on

the private nature of this road. R.96, line 9- R. 97 line 5.

Mr. Thomas Gause, a retired Williamsburg County

employee worked as a bush cutter, then motorgrader, and

then as Superintendent of Public Works from approximately

1965 to mid 1980s. R.51, line 17 —-R.52, line 22. During

that period he graded Fulmore road on an average of once a

month. R.53, line 22 — R.54 line 10. Mr. Gause goes further

to state that “That road was traveled when I was a boy [in the

1940’s and 1950’s] and it was maintained by the county.

Resp. App. B-24

From 1965 right on I know the road has been maintained and

it has never has stopped being maintained.” R.62, lines 3-6.

When questioned about Mr. Askins’ actions causing him to

believe that Fulmore Road was a public road, he answered,

“[W]hen we were maintaining the road or doing work on the

road, Mr. Askins saw us working on the road. He saw what

we were doing, and he never complained. If I didn’t want

the road worked on, I would have complained. * R.62, line

75 —R.63, line 8. He was questioned as to how often that

_ Askins’ observation of county maintenance] would

occur, and he stated “I have seen him several times. . . . they

never had no complaints.” R.63, lines 22-25.

B. The County’s use had been

continuous and uninterrupted for over twenty years and

the identity of things enjoyed was proved.

The parties stipulated below that James Moseley, a

County motorgrader operator, has scraped the Fulmore Road

since approximately 1977, and installed a drainage pipe

under Fulmore Road in 1978. R. 16. The Appellant

conceded below that there was continued and uninterrupted

use or enjoyment by the public of the Fulmore Road for

more than twenty (20) years and that the identity of the thing

enjoyed is proved.

IV. The Injunction prohibiting the Appellant

from closing b's road does not amount to a deprivation of

private property without just compensation.

The County has disputed the closing of the Fulmore

Road because the Fulmore Road is a public road by either

the theory of public dedication or by the County’s obtaining

it through a public prescriptive easement. For these reasons,

the injunction prohibiting the Appellant from closing his

road does not amount to a deprivation of private property

without just compensation.

Resp. App. B-25

CONCLUSION

The evidence in the record establishes that the

Appellant through his acquiescence in the extensive long

term public usage and extensive long term public

maintenance dedicated the .7 mile portion of the RVA Tract

known as a section of the Fulmore Road to the public.

Evidence also exists in the record from which a finding

could be made that in the alternative, Williamsburg County

acquired a prescriptive easement in the .7 mile portion of the

RVA Tract known as a portion of the Fulmore Road by

adverse use under a claim of right for a continuous period in

excess of twenty years. For these reasons, Williamsburg

County prays that the decision of the lower court be

affirmed.

Respectfully submitted,

W.E. Jenkinson, III

Jennifer R. Kellahan

Post Office Drawer 669

Kingstree, South Carolina 29556

(843) 354-7417

Attorneys for Respondent

Williamsburg County

September 1, 1999

Kingstree, South Carolina

Resp. App. B-26

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