THE STATE OF SOUTH C AROLINA

In The Court of Appeals

Ex Parte: DeBordieu Colony Community Association, Inc., Appellant,

In Re: The Belle W. Baruch Foundation, Plaintiff,

v.

The State of South Carolina, Defendant,

Of Which The Belle W. Baruch Foundation is the Respondent.

Appellate Case No. 2020

- 001166

Appeal From Georgetown County Paul M. Burch, Circuit Court Judge

Opinion No. 6043

Heard October 10, 2023

– Filed January 17, 2024

REVERSED

Brian C

. Duffy, Julie Lauren Moore, Robert Lewis Wehrman, and Patrick Coleman Wooten, all of Duffy & Young, LLC

, of Charleston

, for Appellant

.

George Trenholm Walker, Thomas P. Gressette, Jr., and Jennifer Sue Ivey, all of Walker Gressette & Linton, LLC

, of Charleston

, for Respondent

.HEWITT, J: DeBordieu Colony Community Association, Inc. (DeBordieu) is a private coastal community in Georgetown County. DeBordieu sought intervention as a matter of right or

, alternatively

, permissive intervention in a lawsuit brought to

determine the rightful titleholder to roughly 8,000 acres of marshlands abutting

DeBordieu's southern boundary

. The circuit court denied intervention under both

theories

.

P recedent and Rule 24(a) of the South Carolina Rules of Civil Procedure set a liberal

standard for intervention . D enying intervention here was inconsistent with that standard. For that reason, as explained below, the order denying DeBordieu's motion

to intervene is reversed.

F ACTS

The Belle W. Baruch Foundation (Baruch) was created by the Last Will and Testament of Belle W. Baruch. It owns approximately 8,000 acr e s of "high ground" in Georgetown County.

The marshland over which Baruch claims title is adjacent to Baruch's high ground. Baruch claims it owns this marshland under the original King's Grant.

DeBordieu 's southern boundary creates the northern boundary of the disputed

marshland

. DeBordieu's members have a history of us ing the marshland for shellfish harvesting

, crabbing, wade fishing, and similar recreational activities. I n the early 1970s, DeBordieu created a system of creeks and canals allow ing its members access to the marshland and to the Atlantic Ocean

. DeBordieu has periodically dredged its

canals to maintain its access to the marshland for recreational purposes.

Baruch began this case by filing a declarat ory judgment action against the State

. Baruch claim ed it holds fee simple title to the marshlands and sought an order declaring it the rightful owner

.

The State answered, assert ed its status as the presumptive titleholder of all

marshlands

, and counterclaimed that the public held a prescriptive easement over the marshlands

. The State alternatively claimed that the property had been dedicated

to the public.

DeBordieu filed a timely motion to intervene, oppose d Baruch's claim of fee simple

title over the marshlands

, and assert ed its own claim for a prescriptive easement.

The State consented to DeBordieu's intervention

. Baruch objected

. The circuit court

denied DeBordieu's motion after a hearing. T his appeal followed.ISSUE

Did the circuit court err in denying DeBordieu's motion to intervene?

STANDARD OF REVIEW

We review circuit court decisions regarding intervention under the abuse of

discretion standard. In re Horry Cnty. State Bank

, 361 S.C. 503, 507,

604 S.E.2d 723, 725 (Ct. App. 2004) ( citing S.C. Tax Comm'n v. Union Cnty

. Treasurer, 295 S.C. 257, 260, 368 S.E.2d 72, 74 (Ct. App.1988))

. As precedent notes, the term "abuse of discretion" is "an old unfortunate statement" and is really just shorthand for describing that " the appellate [c] ourt is simply of the opinion that

there was commission of an error of law in the circumstances ." State v. Wallace

, 440 S.C. 537, 541 n.2

, 892 S.E.2d 310, 312 n.2 (2023) ( quoting Barrett v. Broad

River Power Co.

, 146 S.C. 85, 96, 143 S.E. 650, 654 (1928) ). An error of law

includes failing to consider all of the factors relevant to a particular decision.

S

ee e.g. , Burke v. Republic Parking System, Inc. , 421 S.C. 553, 56 0-6 1, 808 S.E.2d 626, 629 (Ct. App. 2017) (finding the circuit court's failure to weigh all relevant

factors in its order was an abuse of discretion)

.



### INTERVENTION OF RIGHT

Our supreme court has articulated a broad view of the Rule 24(a) (2) standard, explaining:

W e interpret the rules to permit liberal intervention particularly [when]

. . . judicial economy will be promoted by the declaration of the rights of all parties who may be

affected

. Accordingly, we must consider the pragmatic consequences of a decision to permit or deny intervention and avoid setting up rigid applications of Rule 24(a)(2).

Berkeley Elec tric Co

- op., Inc. v. Town of Mt. Pleasant , 302 S.C. 186, 189,

394 S.E.2d , 712

, 714 (1990)

.

Rule 24(a) (2) requires a court to grant intervention:

[W] hen the applicant claims an interest relating to the property or transaction which is the subject of the action

and he [or she] is so situated that the disposition of theac tion may as a practical matter impair or impede his [or her] ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Rule 24(a)(2), SCRCP. The motion to intervene must also be timely. Berkeley Elec tric

, 302 S.C. at 189, 394 S.E.2d at 714.

DeBordieu easily satisfies three of the f our requirements listed above . First, it is undisputed th at DeBordieu timely filed its motion. Second, through its counterclaim for a prescriptive easement, DeBordieu is unquestionably claim ing " an interest " in the disputed property. Third, barring DeBordieu impair s or impede s DeBordieu's ability to protect its claimed interest.

The "impairment" factor is not designed to be a difficult standard. As described in

Berk eley Electric

, " a party need not prove that it would be bound in a res judicata sense by the judgment, only that it would have difficulty adequately protecting its

interests if not allowed to intervene ." Id. at 190, 394 S.E.2d at 715

. Baruch's complaint advertises the purpose of this suit as adjudicating its rights to the marshlands; a court order adjudicating Baruch's claimed rights would necessarily be incomplete unless it also adjudicated DeBordieu 's claim. It would be inconsistent

with our liberal application of Rule 24, and contrary to the mandate of judicial economy, to deny DeBordieu intervention in a suit that is meant to determine the rightful property owner of a parcel over which DeBordieu claims an easement.

Intervention as a matter of right also requires that De B ordieu's interest not be adequately represented by existing parties. Rule 24(a)(2), SCRCP. This, too, is a "minimal" burden and "the applicant need only show that the representation of his

interests ' may be ' inade quate ." Berkeley Electric

, 302 S.C. at 191, 394 S.E.2d at 715 (quoting Trbovich v. United Mine Workers of Am. , 404 U.S. 528 , 538 n.10 (1972) )

. Here, we consider :

(1) whether the existing parties will undoubtedly make all of the intervenor's arguments; (2) whether the existing parties are capable and willing to make such arguments; and (3) whether the intervenor offers different knowledge, experience, or perspective on the proceedings that would

otherwise be absent.

Id. at 191, 394 S.E.2d at 715 ( applyin g Sagebrush Rebellion, Inc. v. Watt , 713 F.2d

525 , 528 (9th Cir. 1983) ).It is true that De B ordieu and the State similarly claim that if Baruch owns the disputed marshlands

, the marshlands are encumbered by the State's and /or DeBordieu's prescriptive easement s

. It is inaccurate , however, to categorize those

easement claims as the same interest in the property. The State claims a prescriptive

easement on behalf of the public

. DeBordieu claim s a prescriptive easement only

o n behalf of its members

. T hough the circuit court found that "[DeBordieu] does not assert, nor could it, that its so

- called prescriptive easement is exclusive, hence preventing others from access over these tidelands," that requirement is not
consistent with the current governing l aw.

Our supreme court clarified the test for a prescriptive easement in Simmons v. Berkeley Elec tric Co- op., Inc. , stating " [i] n order to establish a prescriptive

easement, the claimant must identify the thing enjoyed, and show his [or her] use has been open, notorious, continuous, uninterrupted, and contrary to the true property owner's rights for a period of twenty years. " 419 S.C. 223, 233, 797 S.E.2d 387, 392 (2016). Exclusivity is not a requirement to make a prescriptive easement

clai m

. T he State's and DeBordieu's easement claims are independent of one another

, and are different claims requiring different proof. See Cleland v. Westvaco Corp

., 314 S.C. 508, 511, 431 S.E.2d 264, 266

– 67 (Ct. App. 1993) ( noting an unsuccessful argument f or public rights did not necessarily defeat an individual claim for an

easement ) ; see also Nelums v. Cousins , 304 S.C. 306, 308, 403 S.E.2d 681, 682 (1991) (finding a plaintiff's prescriptive easement claim was asserted independent of use by others) . T he fact that the claims are materially different amply demonstrates

the State would not make all of De B ordieu's arguments.

ARGUMENTS AGAINST INTERVENTION

Having explained our finding that the standard for intervention is satisfied, we address Baruch's argume nts offered against intervention.

Baruch first argues t hat DeBordieu may not intervene because it only claims an

easement and does not claim to own the marshlands. We do not see how any statute or precedent supports this being a meaningful distinction.

The statute authorizing Baruch to file this lawsuit against the State invites participation by "[a]ny person claiming an interest in tidelands

. . . for the purpose of determining the existence of any right, title, or interest

. . . as against the State." S.C. Code Ann. § 48

- 39

- 220(A) ( Supp. 202 3) (emphasis added)

. An easement "gives no title," but an easement is still "property or an interest in land ."

S.C. Pipeline Corp. v. Lone Star Steel Co. , 345 S.C. 151, 153, 546 S.E.2 d 654, 656 (2001)

. DeBordieu does not claim a property interest against the State

. Even so, wedo not see any reason to read the statute as trumping Rule 24, which allows anyone claiming "an interest" in the property at the center of the action to participate.

In fact, e xamples abound in precedent where adjoining landowners who did not claim to own the land in question participated in the very same kind of disputes

. See

, e.g. , Hoyler v. State et al.

, 428 S.C. 279, 833 S.E. 845 (Ct. App. 2019) ( granting

the intervention of adjoining landowners in a declaratory judgment brought under

the marshland statute where the petitioning landowner disputed the neighbors' claims to access the marsh); see also Lowcountry Open Land Tr. v. State

, 347 S.C. 96, 552 S.E.2d 778 (Ct. App. 2001) ( allowing the intervention of an adjoining landowner who sought to wharf over the marsh in action for declaratory judgment and quiet title)

. DeBordieu's participation may prolong the litigation by adding an additional party, but trying to keep them out of the case seems to have already done that. Again, Rule 24 is meant to promote judicial economy by declaring "the rights of all parties who may be affected." Berkeley Elec tric

, 302 S.C. at 189, 394 S.E.2d at 714

.

We al so consider the practical effect of denying the motion to intervene. This case was not brought as a quiet title action, which would have require d notice to and service upon all parties known to have an interest in the property

, and service on unknown parties by way of publication. See S.C. Code Ann. §§ 15

- 67

- 30 to

- 40 ( 2005 ). Baruch brought its suit as a declaratory judgment. W e

note t h is to punctuate a declaratory judgment's statutory requirement that "[a]ll persons" be made parties if they have a claim or interest that would be affected and that "no declaration shall prejudice the rights of persons not parties to the proceeding ." S.C. Code Ann. § 15

- 53

- 80 ( 2005 ). A judgment that is valid as against the State, but not against anyone else claiming an interest in the marshlands would

not be an efficient use of judicial resources

. It certainly would no t give Baruch the full rights of fee simple ownership , because it would not be binding on anyone who was not a party to the declaratory judgm ent

. See Wilmington, C. & A. R. Co. v.

Garner , 27 S.C. 50, 2 S.E. 634, 635 (1887) (" [T] itle ordinarily carries with it the right to possession, which right is a conclusion of law inferred from the title in

fee . . . .") ; see also Rowe v. City of Columbia , 300 S.C. 447, 388 S.E.2d 789 (1989) ( holding a non

- party to a declaratory judgment action was not bound by the declaratory judgment ).

The final argument we address against intervention is Baruch's contention that

because it has not been adjudicated to own the marshlands and has not attempted to exclude anyone from them, DeBordieu's claim to an easement is not ripe . That argument is contrary to the tenants of property law. See Wilmington , 27 S.C. 50,

2 S.E. at 635

. (emphasis in original) (" An averment by a plaintiff that he [or she] hasthe legal title to certain real property as owner in fee

- simple, it seems to us, in the absence of any opposing right, set up by way of defense, would in itself prima facie be an averment of the right to poss ession

. . . . ").

DeBordieu claims it possesses an easement . If Baruch hold s title, and DeBordieu's

c laim is valid

, then DeBordieu would be a dominant estate holder over Baruch.

Baruch claims neither DeBordieu nor the public have a prescriptive easement over
the marshlands

. The law does not require an easement holder to idly sit, waiting to be ejected , before mak ing a claim

. Indeed, t he claim of an easement is undoubtedly

a hostile act towards the subservient landowner , and Baruch's denial of a ny easement
is functionall y a backdoor ejectment. See

, e.g. , Pittman v. Lowther , 363 S.C. 47,

51

– 52, 610 S.E.2d 479, 481 ("It is enough if [the property owner] asserts [his or her rights] to the other party by an overt act, which, if the easement existed, would be a

cause of action. Such an assertion interrupts the would

- be dominant owner's impression of acquiescence ... it shows that acquiescence was not a fact." ( quoting
Garrett v. Mueller, 144 Or.App. 330, 339, 927 P.2d 612, 617 (1996) )) ; see also

, e.g., Chisolm v. Caines, 67 F. 285, 290 (C.C.D.S.C. 1894) (ejecting certain duck hunters

from a portion of the disputed marshlands ). N ot only is there a live controversy between Baruch and DeBordieu, but DeBordieu is a real party in interest by the mere

fact that it claims an interest in the marshlands

. Kiawah Resort Assocs., L.P. v. Kiawah Island Cmty. Ass'n, Inc ., 421 S.C. 538, 552, 808 S.E.2d 521, 528 (Ct. App. 2017) ("A party has standing if the party has a personal stake in the subject

matter of a l awsuit and is a ' real party in interest.'" (quoting Ex parte Gov't Emp.'s

Ins. Co. v. Goethe , 373 S.C. 132, 13 8 , 644 S.E.2d 699, 70 2 (2007 ))).

CONCLUSION

For these reasons

, the order denying DeBordieu's motion to intervene is

REVERSED

.

WILLIAMS, C.J., and VERDIN, J., concur.