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Jordan v. Judy

Court of Appeals of South Carolina

July 22, 2015

Kay Howell Jordan, Marion Howell Tolson, and Lewis Virgil Howell, Respondents,
v.
Betty L.S. Judy, Appellant

Heard March 11, 2015.

Page 97

Appeal From Dorchester County. Appellate Case No. 2013-002129. Maité D. Murphy, Circuit Court Judge.

Robert F. McCurry, Jr., of Horger Barnwell & Reid, LLP, of Orangeburg, and James B. Richardson, Jr., of Columbia, for Appellant.

Woodrow Grady Jordan, of Smith, Jordan and Lavery, P.A., of Easley, for Respondents.

KONDUROS, J. THOMAS and GEATHERS, JJ., concur.

OPINION

Page 98

[413 S.C. 344] KONDUROS, J.:

In this boundary dispute action, Betty L.S. Judy appeals the trial court's setting of the boundary line, contending it was arbitrary and the only reasonable inference was the boundary should be set where prior plats and surveys showed it. We affirm.

FACTS/PROCEDURAL HISTORY

Wilbur L. Judy, Sr. and John A. Howell, Jr. owned adjoining tracts of land in Dorchester County (the Judy Property and the Howell Property, respectively). In the early 1970s, Interstate 95 was constructed next to their properties. They both allowed the Department of Transportation to remove dirt from their respective properties, in turn creating a pond on each property. Between the ponds was a strip of land known as the dike or dike road. Both owners used the dike.

John died, leaving the Howell Property to his wife, Marion S. Howell. Marion placed a gate across the road through the Howell Property leading to the Judy Property because she was concerned drugs were being used at the ponds. According to Kay Howell Jordan, John and Marion's daughter, Marion gave Wilbur a key to the gate but the problems continued. Marion changed the lock and gave Wilbur a new key. Because the problems still continued, she changed the lock again and according to Kay tried to give Wilbur a new key, which he refused. Wilbur and Betty's son, Wilbur Judy, Jr. (Roy), testified his family was eventually denied access through the Howell Property.

Wilbur died in 1993, leaving his property to his wife, Betty. According to Roy, he began investigating where the boundary line was located between the two properties after Marion blocked driving access to the Judy Property through the Howell Property. Roy had a survey prepared, which showed a billboard John had constructed was actually on the Judy Property. Betty filed a lawsuit against Marion and another neighbor, Ronnie Elrod,[1] for trespass and an easement. See Judy v. Howell, Op. No 2004-UP-199 (S.C. Ct.App. filed Mar. 24, 2004) ( Judy II ); Judy v. Howell, Op. [413 S.C. 345] No. 2001-UP-423 (S.C. Ct.App. filed Oct. 8, 2001) ( Judy I ). The master found and this court affirmed the easement action was barred bye res judicata due to an earlier action Wilbur brought that was dismissed after his death. Judy I at 4. However, this court reversed the master's decision that the trespass action was barred by res jusdicata and remanded that action for trial. Judy I at 5. Following trial, this court affirmed the master's finding the billboard was on the Judy Property. Judy II at 3. The court noted the parties had not asked the master to determine the boundary of the properties and thus it was not preserved for this court's review on appeal. Judy II at 3.

Marion later died, leaving the Howell Property to her children, Kay, Marion Howell Tolson (Marion T.), and Lewis Virgil Howell (collectively, the Howells). At some point after losing access through the Howell Property, the Judy family began accessing their property by coming down a narrow path beside the railroad tracks, with the railroad's permission.[2] After Roy received the survey around 1995, he installed a ...


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