William N. Kellahan, Jr. and Alice H. Kellahan - Page 14




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          pond may restrict access.  Both petitioners’ and respondent’s               
          experts agreed that the owner of the Canal could not restrict               
          access by the public via Lake Marion.6  The experts’ position               
          appears correct.  See, e.g., Hughes v. Nelson, 399 S.E.2d 24                
          (S.C. Ct. App. 1990) (manmade canal opening into navigable water            
          is itself navigable and hence open to public access).                       
          Petitioners have in any event failed to offer facts or law to               
          refute it.  Nevertheless, while both experts conclude that the              
          Canal is open to public access, they fail to take this factor               
          into account in deciding that ponds are viable comparables to the           
          Canal for valuation purposes.  In our view, given that he cannot            
          control public access, the Canal owner’s property rights are                
          substantially attenuated in comparison to the owner of a pond.              
          Cf. State v. Head, 498 S.E.2d 389 (S.C. Ct. App. 1997)                      
          (conviction for fishing without permission overturned; owner of             
          land under navigable water could not prevent public access).  For           
          this reason, we doubt that ponds and publicly accessible canals             


               6 Petitioners attempt, unsuccessfully in our view, to refute           
          this point on brief with the naked claim that “The record states            
          that the Canal was dug and then opened into the waters of Lake              
          Marion without Public Service Authority permission.  In light of            
          that, the Public Service Authority or other interested party may            
          well have been authorized to place a barrier between the Canal              
          and Lake Marion.”  Petitioners do not suggest who that “other               
          interested party” might be, or provide any support for their                
          contention.  Nor do they explain how the Canal’s being subject to           
          barricading by the Public Service Authority might enhance its               
          value.                                                                      




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