THE STATE OF SOUTH CAROLINA
In The Court of Appeals

James A. Turner, Jr., individually and as shareholder of Bayshore Association, Inc.,        Appellant-Respondent,

v.

Oconee County, Joseph M. Sylvester and Marjorie V. Sylvester, Co-Trustees of the Sylvester Family Trust, Jack C. Prescott, Doris Freeman Prescott and Bayshore Association, Inc.,        Defendants,

Of Whom Oconee County, Joseph M. Sylvester and Marjorie V. Sylvester, Co-Trustees of the Sylvester Family Trust, and Bayshore Association, Inc. are        Respondents,

and

Jack C. Prescott and Doris Freeman Prescott are        Respondents-Appellants.

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

Unpublished Opinion No. 2003-UP-471
Heard March 11, 2003 � Filed July 24, 2003

AFFIRMED AS MODIFIED

Robert Scott Sprouse, of Seneca, for Appellant-Respondent.

Bradley A. Norton, of Walhalla, for Respondents Oconee County and Bayshore Association, Inc.

Perry H. Gravely, of Pickens, for Respondents-Appellants.

STILWELL, J.:� This action involves an access path to the water in a subdivision on Lake Hartwell.� James Turner, a resident of the subdivision, brought this action (1) seeking a declaratory judgment that an access area in the subdivision is a public road that must be maintained by the county, (2) alleging the landowners on either side of the access trespassed on the access by encroachment, and (3) seeking to compel the homeowners� association to open the gated access.� The master granted the county summary judgment, refused to require Turner�s neighbors to remove the alleged encroachments, and ruled the homeowners� association must maintain the access and keep it open for all property owners in the subdivision.� Turner appeals, as do Jack and Doris Prescott, his neighbors on one side of the access.� We affirm as modified.

BACKGROUND

The access path in dispute links the roads of Bayshore Subdivision in Oconee County with Lake Hartwell.� The developer filed a plat setting forth the lots and roads of the subdivision. �The plat showed a path between two waterfront lots, Lots 67 and 68, that was labeled �access.�� The access path had a width of 40 feet except for its border with the subdivision road, which flared as the corners of Lots 67 and 68 rounded.� Lot 67 is owned by Jack and Doris Prescott, and Lot 68 is owned by Joseph and Marjorie Sylvester.�

Turner purchased two interior lots in the subdivision.� The sales brochure produced by the developer stated that all residents of the subdivision �regardless of location, are guaranteed accessibility rights of the Lake and the use of the water.�� Turner began to use the access path in question during the 1960s and has continued his use of the access.�

In the mid-1970s, the developer issued a deed to the homeowners� association granting it ownership of the access.� At some point in time, Oconee County began maintenance of the subdivision�s streets.� The subdivision�s streets were paved but the access was not.� The county did, however, mow the access when it mowed other areas in the subdivision.� In 1980, the homeowners� association placed a gate on the access, and the county soon thereafter ceased mowing the area.� Turner was provided with a key to the gate and continued having use of the access.�

After the gate�s erection, the Sylvesters and Prescotts began planting shrubbery, trees, and other vegetation along the borders of the access.� The homeowners� association later passed a resolution declaring the access a �greenway.�� Thereafter, Turner filed this action against the county, the homeowners� association, and the Sylvesters and Prescotts.

LAW/ANALYSIS

I.� Turner�s Appeal

a.     Summary Judgment for Oconee County

Turner first argues the court erred in granting Oconee County�s motion for summary judgment.� He contends there is evidence the access was dedicated as a public road or that it was accepted as such by the county.� We disagree.

�The determination of whether a road has been dedicated to public use is one in equity.� Therefore, this court may find facts in accordance with its own view of the preponderance of the evidence.�� Vick v. South Carolina Dept. of Transp., 347 S.C. 470, 477, 556 S.E.2d 693, 697 (Ct. App. 2001) (internal citation omitted).

�Dedication requires two elements.� First, the owner must express in a positive and unmistakable manner the intention to dedicate his property to public use.� Second, there must be, within a reasonable time, an express or implied public acceptance of the property offered for dedication.�� Mack v. Edens, 320 S.C. 236, 239, 464 S.E.2d 124, 126 (Ct. App. 1995) (internal citation omitted).�

The record indicates the developer created the access with the intent to provide lake access to the subdivision�s residents.� The access path was identified on the plat in a different fashion than were the roads, which were intended to be dedicated to public use.� The access has been limited to the residents of the subdivision, as is evident by the locked gate on the path that only residents have keys to open. Additionally, the record contains no evidence of public acceptance of the access as a dedicated road.� Neither Oconee County nor the general public accepted the access either expressly or implicitly.� There was no evidence presented that it was used by the general public.� Additionally, although the county mowed the access for a short period of time during the 1970s, it never paved the access, it did not have a key to the gate, and it ceased mowing the access when the gate was erected.� The record clearly demonstrates the access was never intended for public use and the county did not accept it as public property.

b.     Metes and Bounds of the Access

Turner next argues the trial court erred in not declaring the metes and bounds of the access path and in not requiring the Sylvesters and Prescotts to remove their alleged encroachments.� Any ruling by the master on the metes and bounds of the access would have been superfluous as the plat filed by the developer clearly established the access as being 40 feet wide.� Thus, the homeowner�s association, charged by the master with maintaining the access, does not have the authority to allow others to impede any subdivision homeowner from using the full 40 feet width of the access.� We therefore modify the master�s order and direct the homeowners� association to ensure the entire 40 feet width of the access is available to all homeowners in the subdivision.�

II.� Prescotts� Appeal

a.     Persons with Access Rights

The Prescotts argue the trial court erred in finding that all property owners of Bayshore Subdivision have the right to use the access path because Turner did not raise the issue in his pleadings.� We find no error.

Although Turner did not specifically assert the rights of all subdivision residents to use the access, his complaint did request that it be declared a public road.� Furthermore, in their answer and counterclaims the Prescotts asserted the access was limited to members of the homeowners� association.� It is clear from the pleadings of the parties as well as the arguments presented during the hearing that both Turner and the Prescotts implicitly raised the issue of whether all members of the subdivision had the right to use the access.� Accordingly, we find the issue of whether the property owners of the subdivision had access to the access path was properly before the master.�

b.     Adverse Possession Counterclaims

Additionally, the Prescotts maintain the court erroneously dismissed their counterclaims for adverse possession of a portion of the access where their driveway crosses it.� We find no error.

�To constitute adverse possession, which results in obtaining title to the disputed property, the possession must be continuous, hostile, open, actual, notorious, and exclusive for the requisite period.�� Getsinger v. Midlands Orthopaedic Profit Sharing Plan, 327 S.C. 424, 430, 489 S.E.2d 223, 226 (Ct. App. 1997).�

[A]dverse possession requires hostile possession, that is, possession with intention to dispossess the owner.� The mere possession of land, however, does not in and of itself manifest hostility toward the landowner. . . . Possession under a mistaken belief that property is one�s own and with no intent to claim against the property�s true owner cannot constitute hostile possession.�

Lusk v. Callaham, 287 S.C. 459, 461, 339 S.E.2d 156, 159 (Ct. App. 1986) (internal citations omitted), limitation of holding recognized by Perry v. Heirs at Law & Distributees of Gadsden, 316 S.C. 224, 225-26, 449 S.E.2d 250, 251 (1994) (noting Lusk holding is limited to boundary line disputes and does not apply to tract disputes).� �[T]he occupancy of land beyond the true boundary line, by an encroaching owner, does not form a basis for adverse possession, unless the encroachment is made with an intention to claim and hold adversely.� Where one [who] is in the possession of land up to a supposed line intends to claim only to the true line, his possession is not hostile and will not ripen into title.�� Lynch v. Lynch, 236 S.C. 612, 623, 115 S.E.2d 301, 306-07 (1960).

��������� Mr. Prescott testified at trial that he believed the portion of his driveway that encroached upon the flared portion of the access belonged to him.� The contest, therefore, is between adjoining landowners, making it a true boundary dispute.� Prescott testified that he did not learn that this portion of his driveway was a part of the access until Turner filed this action.� Thus, Prescotts� possession of the disputed area across his true boundary cannot be considered hostile.� Additionally, Prescott testified the vegetation and other improvements he made to the path were for the benefit of members of the association. �Accordingly, the master properly dismissed the Prescotts� adverse possession claim.

AFFIRMED AS MODIFIED.

CURETON and HOWARD, JJ., concur.