Davis Adv. Sh. No. 7
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Michael Slear and
Elizabeth A. Slear, Petitioners,
Jethro Hanna and
Watson's Riverside, Inc., Defendants,
Jethro Hanna is Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Horry County
John M. Leiter, Special Referee
Heard June 4, 1997 - Filed February 17, 1998
- Henrietta U. Golding, of Bellamy, Rutenberg,
- Copeland, Epps, Gravely & Bowers, P.A., of Myrtle
- Beach, for petitioners.
- Charles V. Leonard & Willard D. Hanna, Jr., of
- Harris & Hanna, P.A., of Myrtle Beach, for
- John P. Henry, of the Thompson Law Firm, P.A., of
SLEAR, ET AL., v. HANNA, ET AL.
- Conway, for Watson's Riverside, Inc.
FINNEY., C.J.: We granted certiorari to, review the Court of
Appeals' opinion in Slear v. Hanna, 321 S.C. 100, 467 S.E.2d 761 (Ct. App.
1996). We reverse.
Petitioners brought this action seeking a ruling that they had the
right to use Ester Landing in Watson's Riverside Development as an access
point to the Intracoastal Waterway. Petitioners are property owners in the
development. Respondent, Jethro Hanna, owns property adjacent to the
landing. The special referee found it was the intent of the developer to
dedicate Ester Landing to all property owners in the development and the
private dedication was accepted by the residents of Watson's Riverside
Development. Accordingly, the special referee concluded petitioners had the
right to use Ester Landing. The Court of Appeals reversed. Slear. supra.
J. Watson Smith purchased two pieces of property in Horry
County which he transferred in 1973 to Watson Riverside Inc. In July 1973,
a plat (Cox Plat) and Declaration of Restrictions were recorded showing
Blocks A-G of Watson's Riverside Development and restrictions on use of the
property. On October 20, 1975, restrictions on the use of Block H, shown on
a previously recorded Plat of "Watson's Riverside Addition," were recorded
and the owners of property in Blocks A-G agreed to have the previously
recorded restrictions changed to conform to the restriction on Block H. On
December 30, 1975, a plat showing an expansion of Block H was recorded
and outside the boundary of Block H was printed "Reserved for Future
Development." On July 10, 1978, a plat depicting Blocks K - O, designated
as Watson's Riverside Addition, Phases III and IV was recorded and on July
7, 1980, restrictions identical to those recorded for Blocks A - H were
recorded. Petitioners' property is located in Block M.
On January 27, 1976, respondent purchased Lot 1-A of Block B
of Watson's Riverside Development as shown on the Cox Plat. The deed
stated in pertinent part the following:
- The grantor hereby covenants and warrants that . . .
- the road dividing Lot 1 and Lot 1-A as shown on
- said plat is not to be used as a public landing but is
- to be used only by residents of Watson's Riverside
- Development and that said road and landing will be
- maintained and kept in a neat, clean and attractive
SLEAR, ET AL., v. HANNA, ET AL.
- The grantor hereby agrees for the consideration
- stated above to have the undeveloped road between
- Lot 1 and Lot 1-A and known as Ester Landing as
- shown on said plat paved, said road to be properly
- ditched, smoothed out and paved where present ditch
- now situate; Grantor agrees to provide and fence the
- boundary adjoining the grantee's land with a stout
- chain like fence; Grantor to maintain fence, . . . . It
- is the further understanding that a locked gate is to
- be placed at the entrance of said landing and keys to
- be provided only to residing land owners; said
- covenants, warranties and promises to run with the
- land and to bind the parties [sic] heirs, successors,
- assigns, administrators or executors as the case may
Petitioners assert the Court of Appeals erred in reversing the
special referee's finding there was a private dedication of use. In particular,
the Court of Appeals concluded that the reservation as to the use of Ester
Landing contained in respondent's deed inured only to the benefit of those lot
owners or future owners of lots on the plats of record in 1976 (Cox Plat).
The Court of Appeals looked to all plats of record in 1976 depicting Watson's
Riverside Development and found "no hint the development then encompassed
or would in the future encompass the area where the [petitioners] ultimately
purchased their lot." Petitioners contend there is ample evidence in the
record and in the recorded plats to have put respondent on notice that
Watson's Riverside Development included more than shown on the Cox Plat.1
The outcome here is based on the proper scope of review. The
determination of the existence of an easement is a question of fact in a law
action and subject to an any evidence standard of review when tried by a
judge without a jury. Jowers v. Hornsby, 292 S.C. 549, 357 S.E.2d 710
(1987). If the action is viewed as interpreting a deed, it is an equitable
1The special referee found that Watson's Riverside Development
consisted of Blocks A through O as depicted on the tax map. The referee
also found that all property owners in Blocks A through O have a common
grantor, were subject to identical restrictions and the consecutive lettering
of the Blocks evidenced a single scheme. Further, one of the plats stated
that additional property was reserved for future development.
SLEAR, ET AL., v. HANNA, ET AL.
matter and the appellate court may review the evidence to determine the
facts in accordance with the court's view of the preponderance of the
evidence. Wayburn v. Smith, 263 S.C. 518, 211 S.E.2d 560 (1975); Heritage
Federal Savings & Loan Association v..Eagle Lake Condos, 318 S.C. 535, 458
S.E.2d 561 (Ct. App. 1995).
Here, the Court of Appeals treated this case as one to interpret
a deed.2 The pleadings and evidence present the primary issue of whether
or not the deed creates an easement in favor of petitioners as residents of the
development. The determination of the existence of an easement is a
question of fact and subject to an any evidence standard review. Jowers,
supra. There is evidence in the record to support the special referee's
findings, accordingly we reverse on this issue.
Petitioners also contend the Court of Appeals should have
affirmed the referee's ruling that Ester landing was dedicated to public use
by the developer. We disagree. The referee concluded solely that there was
a dedication for private use and did not address whether there was a public
dedication. Accordingly, there was no ruling on this ground for the Court of
Appeals to affirm.
The Court of Appeals' decision is
TOAL, WALLER, BURNETT, A.J., and Acting Associate
Justice George T. Gregory Jr., concur.
2The Court concluded that the referee erred in his interpretation of
the deed. The Court further concluded the language in respondent's deed
residents of Watson's Riverside Development" when considered in
conjunction with the provision that a locked gate would be installed and
keys would be provided only to residing land owners is ambiguous and
thus the intention of the parties to respondent's deed must be determined.