Frierson v. Watson, No. 4167.

• Court: Court of Appeals of South Carolina
• Writing for the Court: Goolsby
• Citation: 636 S.E.2d 872
• Parties: Ed FRIERSON, IV, Virginia S. Frierson, and Allie S. Frierson, Respondents, v. David L. WATSON, Patricia R. Watson, and Carolina First Bank, Defendants, of whom David L. Watson is the Appellant.
• Docket Number: No. 4167.
• Decision Date: 23 October 2006

636 S.E.2d 872 Ed FRIERSON, IV, Virginia S. Frierson, and Allie S. Frierson, Respondents,
v.
David L. WATSON, Patricia R. Watson, and Carolina First Bank, Defendants,
of whom David L. Watson is the Appellant. No. 4167. Court of Appeals of South Carolina. Submitted October 1, 2006. Decided October 23, 2006.

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C. Nicholas Lavery, Christopher G. Olson and Ronnie L. Smith, all of Clemson, for Appellant.

James C. Alexander, of Pickens, for Respondents.

GOOLSBY, J.

Ed Frierson, IV, Virginia Frierson, and Allie S. Frierson (collectively, the "Friersons") brought this declaratory judgment action against David L. Watson and others to establish an easement for the use of a hallway between two adjoining buildings. The circuit court granted summary judgment to the Friersons, finding they had established an easement for the hallway. Watson appeals. We affirm.¹

FACTS

The Friersons² have a two-story building at the corner of East Main Street and Pendleton Street in Easley, South Carolina. The building shares a common wall with an adjacent two-story building owned by Watson and his wife.³ An outdoor stairway located on Watson's property provides access to the second floor of both buildings. This dispute arose when Watson began to construct apartments on the second floor of his building and proposed to close off a connecting hallway at the top of the stairs. The Friersons assert they have an easement to use the outdoor stairway as well as the hallway to access the second floor of their building.⁴ They allege Watson's construction violates their easement because it would deny them access to the second floor. Watson does not dispute an easement exists for the stairway, but

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maintains there is no easement for the hallway and the Friersons would not be denied access to the upper floor of their building because there is a stairway inside the Frierson building.

A review of the real estate records shows the Friersons' predecessors-in-interest, E.C., E.O., and D.M. Frierson, purchased the building in 1929 from the "Estate of R.F. Smith, Inc." The 1929 deed, dated January 14 and recorded on January 23, expressly conveyed "an easement in a certain four foot stair-way in the back of the building, with right of ingress and egress on said stairway to the second story of said building."

On January 21, 1929, two days before the deed was recorded, the parties to the sale executed a "Memorandum of Agreement" concerning an easement for the use of the hallway. Although the agreement was signed, it was never recorded. The agreement stated in relevant part:

[T]he party of the first part [Estate of R.F. Smith, Inc.] has sold to the parties of the second part [E.C., E.O. and D.M. Frierson], a certain brick building at the corner of Main and Pendleton Streets, the second story of which is not partitioned, but one-half belongs to each of the parties hereto. There are offices constructed over the building of the parties of the second part covering practically the width of their building. As a part of the consideration of the sale of this property, the party of the first part grants to the parties of the second part, the right to use the hall-way on the second floor as long as the said room remains unpartioned [sic] by brick and continuous through to the roof.

The Friersons currently use the first floor of their building to operate a drug store. Over the years, the family used the second floor for a variety of purposes. At one point, it was a Masonic lodge. Later, the family rented the second story to doctors, dentists, and others as office space and visitors used the hallway to access those offices. The second floor eventually became unusable and the family utilized it for storage and for private office space. The Frierson building passed through the estate of E.O. Frierson, one of the original parties named in the deed, to Virginia Frierson's husband, E.C. Frierson, III, and then through the husband's estate to Virginia.

In 2002, Watson and his wife purchased the two-story building adjacent to the Friersons' building from Goodwill Industries of Upper South Carolina, Inc. The deed, recorded June 6, 2002, noted an easement as follows: "This conveyance is made subject to an easement granted E.C. Frierson, et al. to use the stairway along this common line as ingress and egress to the second story of the Frierson building (See Deed Book 3-V at Page 229)." The 2002 deed also referenced "a plat prepared by J.C. Smith & Associates, Surveyors, for Goodwill Industries of Upper South Carolina, Inc. dated April 23, 2002...." The plat showed access to the second floor via an external door, a twenty-eight foot stairway, and a forty-foot portion of an upstairs hallway.

Watson's closing attorney wrote a title opinion on June 3, 2002, prior to the closing, noting Goodwill was the owner of the property subject to easements for use of the exterior door, stairway, and hallway:

Goodwill Industries of Upper South Carolina, Inc. is the fee simple owner of said property subject, however, to the following exceptions ... Easement as to Tract No. 2., granted to E.C. Frierson, E.O. Frierson and D.M. Frierson, their heirs and assigns . . . and such easements or rights-of-way to the exterior door, stairwell and hallway as [shown] on a plat dated April 23, 2002, by Smith Surveyors, Inc. for Goodwill Industries of Upper South Carolina, Inc.

Following the purchase, Watson began constructing apartments on the second floor of their building. He planned to place one of...