Dukes v. Farrell

• Decision Date: 12 April 2017
• Docket Number: Appellate Case No. 2014-000730,Unpublished Opinion No. 2017-UP-155
• Parties: Earl Dukes, Appellant, v. Kennith W. Farrell, Mary C. Farrell and Martin Bogdonovitch, Defendants, Of whom Kennith W. Farrell and Mary C. Farrell are the Respondents.
• Court: South Carolina Court of Appeals

Earl Dukes, Appellant, v. Kennith W. Farrell, Mary C. Farrell and Martin Bogdonovitch, Defendants,Of whom Kennith W. Farrell and Mary C. Farrell are the Respondents.

Appellate Case No. 2014-000730

Unpublished Opinion No. 2017-UP-155

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard September 8, 2016

April 12, 2017

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Appeal From York County

S. Jackson Kimball, III, Special Circuit Court Judge

AFFIRMED AS MODIFIED AND REMANDED

J. Cameron Halford, of Halford, Niemiec & Freeman, LLP, of Fort Mill, for Appellant.

John Martin Foster, of Rock Hill, for Respondents.

PER CURIAM: In this trespass action, Appellant Earl Dukes seeks review of the circuit court's order granting partial summary judgment to Respondents, Kennith W. Farrell and Mary C. Farrell (the Farrells). Dukes argues the circuit court erred in granting summary judgment to the Farrells on their two alternative counterclaims seeking a declaration that they had either an appurtenant easement or a prescriptive easement over Dukes' property. Dukes also argues the circuit court erred in stating the Farrells owned the pier and dock crossing Dukes' land. We affirm as modified and remand.

I. Appurtenant Easement

Dukes first argues the language of the 1965 deed to the Farrells' predecessor in title did not create an express easement appurtenant because (1) the language is ambiguous and (2) the dominant estate and the servient estate were owned by the same persons. We disagree.

"The character of an express easement is determined by the nature of the right and the intention of the parties creating it." Proctor v. Steedley, 398 S.C. 561, 572, 730 S.E.2d 357, 363 (Ct. App. 2012) (quoting Windham v. Riddle, 381 S.C. 192, 201, 672 S.E.2d 578, 583 (2009)). While "[a]n easement in gross is a mere personal privilege to use the land of another" and "is incapable of transfer," an appurtenant easement "passes with the dominant estate upon conveyance." Id. (quoting Windham, 381 S.C. at 201, 672 S.E.2d at 583). An appurtenant easement "inheres in the land, concerns the premises, has one terminus on the land of the party claiming it, and is essentially necessary to the enjoyment thereof." Id. (emphasis omitted) (quoting Windham, 381 S.C. at 201, 672 S.E.2d at 583).

To determine the grantor's intention, we must construe it in accordance with the rules applied to deeds and other written instruments. K & A Acquisition Grp., LLC v. Island Pointe, LLC, 383 S.C. 563, 581, 682 S.E.2d 252, 262 (2009). "In determining the grantor's intent, [a] deed must be construed as a whole and effect given to every part if it can be done consistently with the law." Windham, 381 S.C. at 201, 672 S.E.2d at 583 (quoting Gardner v. Mozingo, 293 S.C. 23, 25, 358 S.E.2d 390, 391-92 (1987)). "The intention of the grantor must be found within the four corners of the deed." Id. (quoting Gardner, 293 S.C. at 25, 358 S.E.2d at 392). This is a question of law for the court as long as the deed is clear and unambiguous. Hunt v. S.C. Forestry Comm'n, 358 S.C. 564, 568, 595 S.E.2d 846, 848 (Ct. App. 2004).

Likewise, the determination of whether language in a deed is ambiguous is a question of law. Cf. S.C. Dep't of Natural Res. v. Town of McClellanville, 345 S.C.617, 623, 550 S.E.2d 299, 302-03 (2001) (applying rules of contract construction to a restrictive covenant in a deed). The language in a deed is ambiguous if it is "reasonably susceptible of more than one interpretation." Id. at 623, 550 S.E.2d at 302 (defining ambiguity in a contract). "Once the court decides the language is ambiguous, evidence may be admitted to show the intent of the parties." Id. at 623, 550 S.E.2d at 303. "The determination of the parties' intent is then a question of fact." Id.

Here, the pertinent language in the 1965 deed from A.F. Fewell and Edward Fewell, Jr. (the Fewells) to W.A. Bigham, the Farrells' predecessor in title, states,

It being understood that the Grantee herein, [h]is Heirs and Assigns, shall have access to the Backwater in the cove on which the above described property is located, subject to [the] rights of the Wateree Power Company, or its Successors, and other Grantees from the Grantors herein, A. F. Fewell and Edward Fewell, Jr.

This clear and unambiguous language grants "access to the Backwater in the cove" to not only W.A. Bigham but also "[h]is Heirs and Assigns." "Generally, the phrase 'heirs and assigns' will not convert an easement in gross to an appurtenant easement when the elements of an appurtenant easement are not otherwise present. However, such language is relevant to the determination of the grantor's intent." Proctor, 398 S.C. at 574, 730 S.E.2d at 364 (emphasis added) (citations omitted). Therefore, we cannot ignore this language in determining the grantor's intent.

On the other hand, Dukes asserts that the easement language is ambiguous because it identifies neither Dukes' tract as the servient estate nor a terminus on the dominant estate.¹ However, the 1965 deed's language "access to the Backwater in the cove" necessarily implies (1) all the land that was beneath the cove's water in 1965, currently owned by Dukes, is the servient estate and (2) a terminus lies on the dominant estate. See Hill v. Carolina Power & Light Co., 204 S.C. 83, 96, 28S.E.2d 545, 549 (1943) ("The unrestricted grant of an easement conveys all such rights as are incident or necessary to its reasonable and proper enjoyment."). This language is not "reasonably susceptible" of any other interpretation.² The fact that some of the servient estate is not currently covered by water does not affect its status as the servient estate or the location of the terminus. If the terminus did not lie on the dominant estate, the grantor's inclusion of language allowing the dominant estate's new owner access to the cove's water would be rendered a nullity, thus violating the mandate that a "deed must be construed as a whole and effect given to every part if it can be done consistently with the law." Windham, 381 S.C. at 201, 672 S.E.2d at 583 (emphasis added) (quoting Gardner, 293 S.C. at 25, 358 S.E.2d at 391-92).

Dukes also argues the 1965 deed's language could not have created an appurtenant easement because at the time of the conveyance, the dominant and servient estates were owned by the same persons, i.e., the Fewells. In support of his argument, Dukes cites Windham v. Riddle, which references the rule that an easement cannot exist when both the purported servient and dominant estates are owned by the same person. 381 S.C. at 198, 202, 672 S.E.2d at 581, 583. The present case does not fall within this rule because the Fewells' very act of conveying the dominant estate to W.A. Bigham, the Farrells' predecessor in title, divested the Fewells of their ownership of this property. See Haselden v. Schein, 167 S.C. 534, 539, 166 S.E. 634, 636 (1932) ("[I]n order to effectuate the extinguishment of an easement by unity of title, the fee to the dominant and servient tenements must be vested in the same person at the same time." (emphasis added)).

Based on the foregoing, we find no merit to Dukes' two grounds for challenging the circuit court's declaration that the Farrells have an appurtenant easement over Dukes' property. See Snyder's Auto World, Inc. v. George Coleman Motor Co., 315 S.C. 183, 186, 434 S.E.2d 310, 312 (Ct. App. 1993) (stating the appellant has the burden of showing error). Therefore, we affirm this declaration.

II. Prescriptive Easement

Although we need not reach Dukes' arguments concerning the Farrells' counterclaim asserting a prescriptive easement, we do so in the interest of judicialeconomy. See Jeter v. S.C. Dep't of Transp., 369 S.C. 433, 441 n.6, 633 S.E.2d 143, 147 n.6 (2006) (citing S. Bell Tel. & Tel. Co. v. Hamm, 306 S.C. 70, 75, 409 S.E.2d 775, 778 (1991)) (addressing an issue in the interest of judicial economy); State v. Vick, 384 S.C. 189, 203, 682 S.E.2d 275, 282 (Ct. App. 2009) (same).

"To establish a prescriptive easement, the claimant must prove by clear and convincing evidence: '(1) the continued and uninterrupted use or enjoyment of the right for a period of [twenty] years; (2) the identity of the thing enjoyed; and (3) the use [was] adverse under claim of right.'" Simmons v. Berkeley Elec. Coop., Inc., Op. No. 27674 (S.C. Sup. Ct. filed Nov. 2, 2016) (Shearouse Adv. Sh. No. 42 at 12, 15) (quoting Darlington Cty. v. Perkins, 269 S.C. 572, 576, 239 S.E.2d 69, 71 (1977)). In Simmons, our supreme court clarified the third element of a prescriptive easement by stating, "[A]dverse use and claim of right cannot exist as separate methods of proving the third element of a prescriptive easement as the two terms are, in effect, one and the same." Id. at 19.

The court further stated, "[W]hen it appears that [the] claimant has enjoyed an easement openly, notoriously, continuously, and uninterruptedly, in derogation of another's rights, for the full period of [twenty] years, the use will be presumed to have been adverse." Id. at 15-16 (first alteration in original) (quoting Williamson v. Abbott, 107 S.C. 397, 400, 93 S.E. 15, 16 (1917)). "However, because the 'continuous' and 'uninterrupted' elements for adverse use are already required to establish a prescriptive easement, the subtest for 'adverse use' only further requires the claimant's use be "open" and 'notorious.'" Id. at 19. The court then set forth the following "simplified" test for a prescriptive easement:

In order to establish a prescriptive easement, the claimant must identify the thing enjoyed, and show his use has been open, notorious, continuous, uninterrupted, and contrary to the true property owner's rights for a period of twenty years.

Id.

Here, the circuit court stated in its order,

Because I find and conclude that there is an express easement, it is not necessary to rule on the [Farrells'] claim of an easement

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