SC Administrative Law Court Decisions

This matter came before me on September 8, 1998, for a contested case hearing on the merits of the appeal of John P. Connelly (Connelly) from the revocation action of the South Carolina Department of Health and Environmental Control, Bureau of Ocean and Coastal Resource Management (OCRM) relating to permit number OCRM-97-325-G, issued to Connelly on September 16, 1997. The permit authorized Connelly to construct a private dock on and adjacent to Fishing Creek at 571 Fishing Creek Drive, Edisto Island, Charleston County, South Carolina.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties, I make the following Findings of Fact by a preponderance of evidence:

1. On April 7, 1995, Connelly and his wife purchased a one acre tract of land at 571 Fishing Creek Drive, Edisto Island, Charleston County, South Carolina. This tract is a residential lot upon which the Connellys have built their permanent residence. The lot is rectangular in shape and measures approximately 100 feet by 465 feet.

2. On August 21, 1997, Connelly applied to OCRM for a permit to construct a dock for private use on and adjacent to Fishing Creek at 571 Fishing Creek Drive. In connection with Connelly's permit application, Connelly provided OCRM with a copy of his boundary survey showing the location of his property, a twenty-five foot (25') dedicated right-of-way and a 25' private easement. Connelly stated in his application that his property boundary was "contiguous to and landward of the area in which the work proposed in the permit application is to be conducted."

3. On August 23, 1997, public notification that Connelly had applied for a dock permit was duly published in the newspaper.

4. On September 16, 1997, OCRM issued dock permit number OCRM-97-325-G to Connelly which authorized him to construct a private dock on and adjacent to Fishing Creek at 571 Fishing Creek Drive, Edisto Island, Charleston County, South Carolina.

5. On March 17, 1998, OCRM issued a Notice of Intent to Revoke to Connelly. OCRM revoked the permit because the recorded plat for the permitted property indicated that an easement existed between the property of the permittee and the waters of Fishing Creek and OCRM's file contained no record of permission being granted from the record owner of the land upon which the easement existed. The Notice of Intent to Revoke further provided that "[t]his situation can be cured by providing OCRM with written permission from the owner of the easement allowing you access to Fishing Creek from your property." Based on this Notice, Connelly hired a lawyer who began assisting Connelly in obtaining written permission from the owner of the easement allowing Connelly access to Fishing Creek.

6. G. Spence Wise (Wise) is one of seven property owners who owns a residential lot to the north of Connelly's property. Wise's lot is located three lots to the north of Connelly's property. Wise's access to his property from Palmetto Road is over the 25' private easement, until he reaches Connelly's northern property line. At that point the dirt road becomes a fifty foot private easement which is restricted to the seven property owners served by the road. Wise and five of the seven property owners have permitted docks which are located on Fishing Creek beyond their private easement. In fact, the placement of their docks is substantially identical to the placement for Connelly's dock proposed in the OCRM permit.

7. Wise contends the revocation of Connelly's permit is proper because " . . . over the years, Fishing Creek has eroded into our twenty-five foot easement by ten feet. I seriously question if there is enough space that is not protected by our road easement to allow a dock." Furthermore, Wise contends that John W. Shaw, III, as fee simple owner of the land underlying the easement,⁽¹⁾ could not grant Connelly the right to use a small portion of the 25' private easement to locate the landward termination of the walkway for Connelly's dock because the 25' private easement allows Wise and other property owners the right of ingress and egress over this same strip of land.

8. There are two easements between Connelly's lot and Fishing Creek.⁽²⁾ The first easement, which is closest to Connelly's home, is a 25' wide dedicated right-of-way (Weeks easement) which was created by Connelly's predecessor-in-title, Betty Laura Weeks. This 25' wide dedicated right-of-way is abundant with trees and is not currently being utilized for any purpose. Closer to Fishing Creek is another 25' wide private easement (Shaw easement), a portion of which is a well defined dirt road that is regularly utilized to travel to the paved public right-of-way, known as Palmetto Road. The entire 25' wide easement is not utilized as a roadbed. Beyond the dirt road located on a portion of the easement is a parcel of highland land which is not utilized as a roadbed, and beyond the 25' private easement is another portion of highland.

Connelly's predecessor-in-title was Isaiah Gadsden. The legal description contained in the deed from Isaiah Gadsden to Ernest Henry Weeks recorded on June 9, 1964 in the R.M.C. Office for Charleston County describes the property which Connelly subsequently purchased from Weeks as

". . . butting and bounding generally to the East on York Scott land and Palmetto Creek⁽³⁾ one hundred (100) feet . . . ." This record indicates that 100' in length of the 25' wide Shaw easement in front of Connelly's residence was owned by Isaiah Gadsden prior to the time that the seven lots (of which the Wise lot is one) were platted and subdivided in May of 1979. In other words, Connelly's predecessors-in-title owned the road between the subject lot and the creek in fee simple.

Additionally, the property from which the Shaw easement was created was originally owned in fee simple title by the heirs of Isaiah Gadsden. Apparently, there is no written document that explains how the easement was created or that defines the scope of the easement. It does, however, appear that the easement has been used as a road for a long time and that the road has been shown as a private easement on various plats of record. William Swinton, an heir of Gadsden, brought a quiet title action against the heirs of Gadsden. After receiving clear title, Swinton conveyed the land underlying the Shaw easement, approximately 6.7 acres of the Gadsden tract, to John W. Shaw, III. Therefore, the owner of the fee simple estate underlying the 25' private road easement is John Shaw.

Furthermore, the plats show a portion of highland from the 6.7 acre Gadsden tract running in front of the Connelly lot between the Shaw easement and Fishing Creek. Shaw also holds title to that portion of highland. Accordingly, Shaw was the proper party to grant Connelly legal permission to use the Shaw easement and/or the high ground located between the Shaw easement and Fishing Creek to access Fishing Creek.

9. On September 5, 1998, Connelly obtained written permission from Mr. Shaw giving Connelly the right to utilize a portion of the private easement and property owned by Shaw between the private easement and Fishing Creek for the purpose of constructing a dock.

10. Over the years, a portion of the bank of Fishing Creek has been subject to some erosion, the exact extent of which is unclear. In this regard, on May 29, 1997, OCRM amended rip-rap permit number OCRM-96-374 to allow Wise to install rip-rap in lieu of a bulkhead to stop erosion occurring along the bank of Fishing Creek, including the area directly in front of Connelly's property. Furthermore, the Weeks easement insures the seven owners of the property beyond the Shaw easement that if erosion does occur into the Shaw easement that they will still have ingress and egress to Palmetto Road over the Weeks easement.

11. Shaw currently has a dock on his property.

12. Essentially, the case turns upon whether Connelly has legal permission from the owner of the fee simple estate upon which the private easement is located, or from the owner of the high ground located between the private easement and Fishing Creek, allowing Connelly access to Fishing Creek.⁽⁴⁾ Shaw, as owner of the underlying fee, can allow other uses of the 25' private easement so long as they do not interfere with the use of the private easement for ingress and egress. Therefore, I find that Connelly does have legal permission from the owner of the Shaw easement and from the owner of the highland located between the Shaw easement and Fishing Creek allowing Connelly access to Fishing Creek. I also find that OCRM and Wise have failed to carry their burden of proving that Connelly does not have legal permission to access Fishing Creek.

1. The Division has jurisdiction over this matter pursuant to S.C. Code Ann. §1-23-600 (Supp. 1997) and S.C. Code Ann. § 48-39-150 (Supp. 1997).

2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. Nat'l Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989). This is a permit revocation action. As such, the burden of proof was on OCRM and Wise to establish, by a preponderance of the evidence, facts supporting the revocation of the permit. See ALJD Rule 29 (B).

3. Permits for the construction of private docks in the coastal zone are governed by the South Carolina Coastal Zone Management Act, S.C. Code Ann. §48-39-10 et seq. (Supp. 1997), and the regulations promulgated pursuant to those provisions, 23A S.C. Code Ann. Regs. 30-1 et seq. (Supp. 1997). Therefore, OCRM is charged with carrying out South Carolina's coastal zone policies and issuing permits for docks and piers in the critical areas of the coastal waters and tidelands. 23A S.C. Code Ann. Regs. 30-10(A)(1) (Supp. 1997) and S.C. Code Ann. § 48-39-130 (Supp. 1997).

4. The project in question is located in a critical area as defined in S.C. Code Ann. § 48-39-10 (Supp. 1997); 23A S.C. Code Ann. Regs. 30-1(C)(4) and (12) (Supp. 1997). Any person wishing to construct a dock in a critical area must apply for and receive a permit. The application must include, inter alia, a plan or drawing describing the proposed activity, a plat or copy of a plat of the area in which the proposed work will take place, and a certified copy of the instrument under which the applicant claims ownership or permission from the owner to carry out the proposal. 23A S.C. Code Ann. Regs. 30-2(B) (Supp. 1997).

5. An easement is not a complete conveyance of the property. Rather, an easement grants the right of use over the property of another for a specific purpose. That right to specifically use the property does not preclude other uses of the property by the general property owner that are not inconsistent with the easement. See 25 Am.Jur.2d Easements and Licenses § 1, p. 416-417 (1966). A "right of way" is the privilege which one person or particular class of persons may have of passing over the land of another in some particular line. Id. at § 7, p. 422. Generally speaking, an easement can be created: (a) expressly by a written document; (b) by necessity, as when land is completely shut off from access of any road; or (c) by prescription, arising from long continued enjoyment or use. The scope of an easement created by a written document is governed by the terms of that written document. Id. at § 74, p. 479. The scope of an easement created by necessity or by prescription is the scope of the area actually being utilized to carry out the purpose of the easement. Id. at § 65, p. 473. The fee simple owner of the property upon which the easement is created retains ownership of the property, which then is said to be encumbered to the extent of the easement. At 25 Am.Jur.2d Easements and Licenses § 89, p. 495 (1966) it is stated:

[T]he grant of an easement of way which is not exclusive and which can reasonably be enjoyed without being exclusive leaves in the servient owner the right of user in common with the owner of the easement. In such an event, the servient owner may cultivate the land subject to an easement of way, or even sow crops on the right of way, or use the way for any purpose, provided he does not interfere with the right of passage resting in the owner of the easement. Moreover, so long as they do not unreasonably interfere with the original easement or with each other, additional easements may be created in the same land, where the original easement thereon is nonexclusive.

Ordinarily, what may be considered a proper use of the easement by Shaw, the servient owner, is a question of fact and depends largely on the extent and mode of use of the particular easement. 25 Am.Jur.2d Easements and Licenses § 89, p. 496 (1966).

6. Real property which is subject to an ingress and egress easement which is not expressly restricted by its terms can be used by the owner of the underlying fee for purposes in addition to ingress and egress, so long as the other uses do not infringe on the use of the property for ingress and egress. For instance, an easement created for ingress and egress could also be utilized for the placement of utilities, so long as the placement of the utilities does not unreasonably infringe on the right of ingress and egress. In fact, the subject easement appears from the photographs also to have been used for the placement of power poles. There is high ground between the traveled portion of the dirt road located on the 25' private easement and Fishing Creek. It appears from the testimony, photographs and plats that there is ample space between the traveled portion of the dirt road and Fishing Creek to terminate the walkway for the dock, either on high ground owned by Shaw which is located outside of the 25' private easement⁽⁵⁾, or upon a portion of the 25' easement which is not being utilized for ingress or egress. I find that the use of a portion of the 25' private easement to terminate the dock walkway would in no way infringe upon the use of the 25' private easement for the purpose of ingress and egress.

8. OCRM acted reasonably and in good faith in revoking Connelly's permit based on the information OCRM had before it at the time it took its revocation action. In fact, OCRM indicated that the "situation can be cured by providing OCRM with written permission from the owner of the easement allowing you access to Fishing Creek." Subsequent to the revocation action Connelly obtained permission from Shaw to construct a dock on the portion of the property between the Shaw easement and Fishing Creek upon which the walkway terminates. Therefore, upon a full evaluation of all of the facts presented at the hearing, I find that revocation should not occur in this case and Connelly should be permitted to construct his dock as originally provided with the conditions set forth below. ⁽⁶⁾

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that Connelly be permitted to construct his dock as originally provided, with the additional conditions as set forth below:

1. That Connelly shall, as a condition to building his dock, install and maintain at his own expense rip-rap so that the bank of Fishing Creek in front of Connelly's property does not further erode upon the private easement in such a manner as to encroach upon the portion of the private easement currently being utilized for ingress and egress.

2. In the event that further erosion occurs, requiring the portion of the bank being utilized by Connelly for the termination of his dock walkway to be utilized as a roadbed for the purpose of allowing ingress and egress, Connelly may be required by future action of the Department, and as a special condition of his dock permit, to relocate or remove his walkway so that it does not unreasonably interfere with the use of the private easements (Weeks and Shaw) for ingress and egress.

3. Petitioner Connelly must provide satisfactory proof to the Department that the issuance of this permit will not violate any of the provisions of the Coastal Zone Management Act or the regulations promulgated thereunder, due to the existence of Shaw's present dock permit.

AND IT IS SO ORDERED.

__________________________________

Ralph King Anderson, III

Administrative Law Judge

April 6, 1999

Columbia, South Carolina

1. Neither Wise nor OCRM offered any evidence to dispute Connelly's contention that Shaw as successor in title to Gadsden was the holder of the fee simple title to the land underlying the easement.

2. In order to determine some of the issues raised by this appeal and for the purposes of this case only, the ALJ had to make a determination as to the ownership of the private easement and the property between the private easement and Fishing Creek. The ALJ's determination as to any issue of ownership is made only for the purposes of deciding the issues raised in this appeal.

3. Fishing Creek was previously called Palmetto Creek.

4. OCRM has indicated that what is necessary in order to obtain a dock permit is permission to access the water, as opposed to fee simple ownership of property adjacent to the water. OCRM's position is consistent with S.C. Code Ann. §48-39-140(b)(4) which requires that an applicant for a dock permit include "a copy of the deed, lease or other instrument under which the applicant claims title, possession or permission from the owner of the property, to carry out the proposal."

5. Wise argued that there is no high ground between the 25' private easement and Fishing Creek. Wise, who was seeking the revocation of the permit, had the burden of proof on this point. Connelly presented a photograph which purported to show the location of an iron pin being the terminus of the Shaw property at a location on the bank of Fishing Creek in front of the Connelly property. I find that Wise failed to prove there was no high ground between the 25' private easement and Fishing Creek, and that the preponderance of the evidence established that there existed high ground between the 25' private easement and Fishing Creek. In any event, the Court concludes as a matter of law that Shaw, as the owner of the fee simple title underlying the 25' private easement, had authority to give Connelly permission to locate the end of the dock's walkway upon a portion of the 25' private easement provided the dock's walkway did not interfere with the use of the 25' private easement for ingress and egress as it is currently being utilized.

6. The Court is aware of the fact that the original permit allowed a side set back for the dock of 18', rather than the standard side set back of 20'. No party challenged this provision of the permit, and the Court finds and concludes that this deviation was properly granted and not challenged by appeal.