*1 PARTNERSHIP, Aрpellant FULLER-AHRENS DEPARTMENT S.C. TRANSPORTATION, Engineer- OF AND HIGHWAYS PUBLIC Civil Columbia, ing Company, and Commonwealth Land Title Insurance Respondents.
(427 (2d) 920) Appeals Court of *2 Jr., Renfrow, and James H. A. Camden Lewis both Hawkins, Lewis, appellant. Babcock & Columbia, for Koon, Jr., An- Rogers, Spencer O. of Sherrill & and Clifford R. Syrett, Columbia, Applegate, drew William and West resрondents. Columbia, for 1, 1993.
Heard Jan. Decided March 19, 1993; April 1,1993. Reh. Den. Judge:
Goolsby, (Fuller-Ahrens) this ac- Partnership brought Fuller-Ahrens the and against Department Highways tion South Carolina (the Transportation Department) for inverse condem- Public (Civil nation, against Engi- Civil of Columbia Engineering and Land neеring) for Commonwealth negligence, against (Commonwealth) of con- Title Insurance breach Company to Rule Department pursuant tract. The moved for dismissal 12(b)(6), injunction. and for a Common- SCRCP, preliminary Department supported wealth also moved for dismissal. The with its motion аffidavits exhibits and Commonwealth its title court. policies filed insurance with the Fuller-Ahrens granted filed no counter-affidavits. trial court both mo- treating them dismissal, summary tions for as mo- judgment The trial court granted under Rule SCRCP. also the tions preliminary injunction. for a Fuller- motion Department’s though respon- listed as a appeals. Engineering, Ahrens Civil a this affirm. dent, party appeal. is not We Frederick B. Fuller and Leslie H. Ahrens purchased par- (Sumter cel of land U.S. along Highway 76 from Highway) Nottingham in Associates 1985. had Nottingham Associates the previously acquired propеrty from Andrew Patterson and others in his family. Partnership Fuller-Ahrens was formed 1986 and the from purchased Fuller and Ahrens shortly thereafter. Sometime after it purchased the property, Fuller-Ahrens became aware of a the drainage pipe of Depart- ment that extendеd onto Fuller-Ahrens’ for approxi- mately 140 feet. The pipe discharges surface water from Sumter Highway road onto Fuller-Ahrens’ land.
I. contends applicable statute of limi- tation, six-year statute limitation found S.C. (1976) (amended Code Ann. 1988), 15-3-530 not did bar its claim against Department for inverse condemna- *3 tion because it had neither actual nor of constructive notice the pipe question until it discovered the “sometime after the was on property purchased 20,1985.” June We deem this contention unmeritorious. we below, As discuss Fuller- Ahrens had construсtive notice of pipe’s the existence because of a 1956 deed in Fuller-Ahrens’ chain of title.
We first, must, review as we the pleadings, affidavits, and exhibits in the light Fuller-Ahrens, most favorable to the non- moving party. Baughman Co., American and Tel. Tel. S.C. 101, 410 S.E.
In 1956, the Department improve undertook to and widen Highway U.S. 76 between planned Columbia and Sumter. The improvements included a frontage road outfall ditches and other structures the necessary proper drainage of the frontage and the road and made highway necessary the con- demnation а then portion by owned the Patter- family acquired by son later Notting- from ham Associates.
A board condemnation conducted hearing February a on the 7, 1956, and Pattersons appealed. appeal While the was pending, however, parties the dispute, settled thе as reflected an din instrument entitled Right-of-Way, “Deed to Route No. 76” September U.S. and dated 12,1956. that was the right-of-way the gave Department deed
The February 7, on proceeding the condemnation subject adjoined that right-of-way thirty-foot an additional 1956 and a total of the Pattersons Department paid The the former. $7,500 rights-of-way. for the under following rights received the Department
The deed: the right- or access road on frontage a
3. To construct... “supplemental ... as shown on granted herein of-way 40.435) (Docket ... No. frontage road ...” showing plans accesses to Route 76 as facilities and drainage with such shown thereon. at the Northern existing within a ditch place pipe
5. To Jr., said ditch Patterson, of Andrew end of the property the right-of-way at all within places to be and filled piped this in- acquired by or Department] now owned [the strument. found in language paragrаph deed, by express plans construction Department's
incorporates thereon must and the notations plans reference. These (1956); § 101B, Deeds at 887 read with the deed. 26 C.J.S. be McEachern, Club, Inc. v. Hobonny see (2d) (1979)(a part of the deed where plat becomes plat). on the land as shown deed describes depict, two pages include plans The construction Patterson and the things, other among notation: following contains the pages road. One of these two &pipe Retain 541—18"R.C. *4 on Lt. pipe
Extend 601—18"R.C. Outfall Ditch
Dig
Est. 50 C.Y. “Dig from the Outfall Ditch” no- page points on this An arrow A frontage of the road. solid edge tation toward the northern of the right-of-way of the edge line extends from the also contains the page This property. road onto the Patterson 30' R/W SEE ADDITIONAL notation: “FOR following thirty-foot ROAD.” The additional PLANS OF SERVICE
181 to which right-of-way obviously this notation refers is the ad- thirty-foot ditional right-of-way mentioned in the deed dated 12,1956. September
The page, PATTERSON, other marked “ANDREW JR.; D-9-12-56,” contains a notation to “Place 140' 18" R.C. Pipe.” An arrow from to the points existing drainage this notation that will pipe pages both indicate be retained and extended. The pipe 18-inch reinforced concrete is to be placed for 140 feet is shown toward and onto extending the Pattersons’ land. The 140 feet of 18-inch lie in an concrete was to out- fall ditch for which 50 yards cubic excavation would be re- quired. documents, Pattersons’ deed and the other as re- filed,
quired statute, were as an affidavit of a de- partment assistant engineer suggests, maintenance offices in Department’s Columbia. Code of Laws of S.C. § (1952); § 33-144 S.C. Code Ann. 57-5-550 The filing of these provided instruments a record “to impart sufficient no- tice,” notice, albeit constructive to of the deed contents, and its the deed’s including reference Depart- ment’s plans, “just though as such ] [was] transaction in the county recorded where the land is situate.” Code of (1952) (later § Laws of S.C. 33-145 codified at S.C. Code Ann. (1976) § 1987); and repealed § 57-5-560 S.C. Ann. Code 30-9- c/. (1991) (current vеrsion of notice H. statute); David Means, (Herein The Recording Land Titles in South Carolina a Land): Guide, Bona Purchase A Fide Title Examiner’s Arceneaux Arrington, see v. S.C.L.Q. 346, (1958); 284 S.C. (2d) (1985) (wherein 500, 327 S.E. the court held a party was on notice as to inquiry clearly restrictive covenants refer- enced in аs of of filing Carolina deed); a deed the date of the Co., Bland, Land (1975) Inc. (wherein imputes the court held the law purchaser to a notice any properly of recitals in recorded forming instrument a link in the of title to the to chain be acquired); 66 Am. Records and (1973) Recording Laws § Jur. at (“[T]he of a recording deed... or other instrument entitled to be recorded is who, constructive ... purchasers notice sub- sequent to the some or recording, acquire right interest & Vendor Pur- grantor....”); under 92 C.J.S. (1955) (“[T]he chaser at 253 record of conveyance *5 to which is entitled to be recorded ... is constructive notice subsequent purchasers claiming grantor. ... under the same
II. surrounding We do not discuss the issues the trial summary judgment court’s of grant Department of res judicata, satisfaction, accord and grounds on There no equitable estoppеl, prescriptive easement. is so, need to do even if the trial court sum improperly granted on these since we the trial mary judgment grounds, uphold and on grant summary judgment court’s other reasons McMillan, Weeks v. different 291 S.C. grounds. Cf. (Ct. 1987) (a decision of the trial court App. either of grоunds, independent based on alternative which support decision, the other is sufficient to the trial court will erroneous). if one ground not be reversed even is III. argues preliminary injunction granted
Fuller-Ahrens not to necessary prevent irreparable the trial court is harm. injunctive relief is within granting preliminary
the sound discretion of the trial court and will not be absent an abuse of that overturned discretion. Porter, Gas Line Pipe Corp. Transcontinental 252 S.C. We find no abuse of discretion here. IV. set forth no in the state- point
Because that relates tо the trial court’s appeal ment of issues on summary judgment Commonwealth, we grant with the contentions directed need not concern ourselves brief. See Commonwealth in Fuller-Ahrens’ against reply 207(b)(1)(B), (“Ordinarily, point SCACR no will be con- Rule set forth in the statement of the issues on sidered whiсh is not (1992) and Error at Appeal Juris. appeal.”); (“An for reversal argue grounds cannot new appellant reply argument.”). brief or oral
Affirmed. Cureton, J., in a
Bell, J., separate opinion, concurs in separate opinion. concurs and dissents *6 Bell, (concurring): Judge Goolsby. agree
I in the of I that fully opinion Judge concur notice of the De- Partnership had constructive across its For the reasons partment’s property. easement of I that Fuller- opinion Judge Cureton, agree stated actual notice of its predecessors Ahrens is also barred in title. and
Cureton, Judge (concurring dissenting): opinion premised is the view that Fuller- majority upon Department’s Ahrens had constructive notice of the easement (diameter) (length) by to install a 140' 18" reinforced concrete majority sup- across the of Fuller-Ahrens. The pipe right-of- this ports holding by referring Departmеnt’s which makes reference to the 1956 condemnation way deed plans.
The law to a of real estate notice of the imputes purchaser any writing recitals contained in recorded which properly Bland, a link in his chain of title. Carolina Land Co. v. forms (2d) v. Moyle Camp (1975); 217 S.E. 98, 107, 265 S.C. bell, Bank National (1923); 180, 193, 119 186, 190 126 S.C. S.E. Newberry Livingston, 264, 268, 152 155 S.C. (1930). for which the person ignorant pre A who is facts does not have construc of constructive notice arises sumption Standard tive notice of such facts. Williams v. Life Jefferson (1938). Co., Insurance 519, 524 To 103, 115, 187 S.C. 196 S.E. instrument, in a the lan provision afford notice of a recorded that it would nat intelligible significant must be so guage in the mind of a reason well-grounded suspicion raise a urally and un person ordinary diligence or a ably prudent person, that would lead suggest inquiry sufficient to an derstanding, Educa Floyd County Board to a of the fаcts. knowledge 1953). Johnson, tion v. 217, 218 S.W. (Ky. I not majority, reached do Contrary to the conclusion easement. While the indicating alleged view the as plans the arrow Pipe,” the notation “Place 140' 18" R.C. plans have the right-of- to broken lines within points from the notation and on right-of-way tо an area outside the area, not way the road The broken lines within property. Fuller-Ahrens’ Thus, length. are 140' to 150' in right-of-way approximately existing pipe as well refer to the then just the notation could such additional as to make Highway plus pipe under U.S. of the 18" 140feet. length the total the docu- Moreover, summary judgment, on a motion for in the favorable mentary light evidence must be viewed most Telephone to Fuller-Ahrens. v. American Baughman Co., 101, 115, Telegraph do not light, simply Viewed the recorded documents that the reasonably prudent pеrson Depart- notice provide ment had a 140' easement across Fuller-Ahrens’ acquired At a minimum are I would not property. plans ambiguous. no- plans hold as a matter of law the furnished constructive tice.
As to the trial that Fuller- pertains judge’s holding *7 Ahrens’ action is barred because its predecessor easement, title had actual notice of the existence of the supports holding. affidavit, the record this In his Gerald Richland Shealy, Engineer former Resident Maintenance for states that more than water from County, twenty years basin, the road has been collected in a catch con- frontage the veyed by pipe frontage road, past underneath the “and by road the now owned the Fuller- through property Ahrens for a 140' Partnership approximately distance of it is onto the owned the discharged by [where] Partnership.” part We have reviewed that of the record of the 1956 con- demnation which is available on At that proceeding appeal. Patterson, attorney R. in fact for the son proceeding, Eugene of Andrew Patterson, property, the owner of the discussed at an “outfall ditсh” the length dumping effect the of addi- tional water from the construction would have on his father’s property.
There are also several affidavits to the effect that since pipe question, Fuller-Ahrens blocked the the surrounding flooding. encountered serious area has opportunity interest, The law when imputes knowledge necessarily impart with it. coupled care, reasonable would (2d) 1939). Childs, (4th Nettles v. 100 F. Where 952, 957 Cir. there are circumstances sufficient to put upon inquiry, a party
185 he is held to have notice of an everything which inquiry, prop- City Greenville v. Washing- erly conducted, would disclose. League Club, ton American Baseball 495, 509, 32 (2d) (1945). 777, S.E. may 782 “Actual notice be inferred from upon circumstances. That which puts party inquiry may be Tanner, v. Patellis the of actual notice.” equivalent 197 Ga. (2d) see Orphanoudakis (Ct. App. 1944); Orphanоudakis, (1957) Va. 676, 681 (means of knowledge with coupled duty means is using Notice equivalent itself); to knowledge Am. Jur. I would hold that the uncontradicted by assertion Gerald Shealy the has been pipe dumping water onto subject property for more than 20 years, and the testimony of Patter- sоn that he expected additional water be on dumped as a result of the highway construction, together with evidence of the great amount of water actually dis- onto the charged property necessarily have must supplied previous adequate owners notice the existence pipe Department. installed
Because Fuller-Ahrens’ in title predecessors had actual no- tice of the existence of the for more than six years prior action, commencement of this I would hold Fuller- Ahrens’ action is barred the statute of limitations. HALL, Respondent
Jack E. v. CLARENDON OUTDOOR
ADVERTISING, INC., Appellant.
(428 (2d) 1) Appeals Court of