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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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