- 14 - 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.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: May 25, 2011