Goodwin v. Johnson

• Decision Date: 17 November 2003
• Docket Number: No. 3696.,3696.
• Court: South Carolina Court of Appeals
• Parties: Troy K. GOODWIN and Fonda E. Goodwin, Appellants, v. Martha E. JOHNSON and Ernie Johnson, Respondents.

357 S.C. 49

591 S.E.2d 34

Troy K. GOODWIN and Fonda E. Goodwin, Appellants, v. Martha E. JOHNSON and Ernie Johnson, Respondents.

No. 3696.

Court of Appeals of South Carolina.

Heard November 4, 2003.

Decided November 17, 2003.

Rehearing Denied January 28, 2004.

Sean K. Trundy, of Charleston, for Appellants.

Steven L. Smith and Wm. Mark Koontz, both of Charleston, for Respondents.

ANDERSON, J.:

Troy K. Goodwin and Fonda E. Goodwin (the Goodwins) appeal the master-in-equity's order relocating their easement by necessity. We affirm.

FACTS/PROCEDURAL BACKGROUND

The Goodwins originally brought this cause of action against Martha and Ernie Johnson (the Johnsons) on December 18, 1996, in an effort to establish an easement across the Johnsons' property. The disputed property consisted of a road that ran from a public highway through the Johnsons' property to the Goodwins' property. The Goodwins argued they were entitled to the easement under several theories, including: (1) an easement by a recorded document; (2) an easement by necessity; and (3) an easement by public dedication.

After hearing from the parties, the master granted the Goodwins an easement by necessity and an easement by prescription. The master found the location of the easement or road was as set forth in a plat recorded in the Recorder of Deeds Office in Berkeley County. The Johnsons appealed the master's finding to the Court of Appeals. An opinion was issued on June 19, 2001. See Goodwin v. Johnson, Op. No.2001-UP-323 (S.C. Ct.App. filed June 19, 2001). This Court affirmed the master's decision by finding there was evidence in the record to support his determination that an easement by necessity existed. Id. We declined to address further grounds.

Following our decision, the Johnsons moved to clarify the master's order and the Goodwins asked permission to execute on the judgment. The Johnsons desired to relocate the easement from its current location to another part of their property due to its proximity to their home and dangers it created for their children and pets. The Goodwins claimed that relocating the easement would make it both unsafe and unusable, as it would no longer link with a passable portion of their property.

In an order dated June 18, 2002, the master granted the Johnsons' request and ordered the construction of a new road along the side of the Johnsons' property.

ISSUE

Does a court of equity possess the plenary power to relocate an existing easement by necessity?

STANDARD OF REVIEW

The determination of the existence of an easement is a question of fact in a law action and subject to an any evidence standard of review when tried by a judge without a jury. Slear v. Hanna, 329 S.C. 407, 496 S.E.2d 633 (1998); Pittman v. Lowther, 355 S.C. 536, 586 S.E.2d 149 (Ct.App. 2003); Revis v. Barrett, 321 S.C. 206, 467 S.E.2d 460 (Ct.App. 1996); Smith v. Commissioners of Pub. Works, 312 S.C. 460, 441 S.E.2d 331 (Ct.App.1994); see also Jowers v. Hornsby, 292 S.C. 549, 357 S.E.2d 710 (1987) (decision of trier of fact as to whether or not easement exists will be reviewed by Supreme Court as an action at law); Hartley v. John Wesley United Methodist Church, 355 S.C. 145, 584 S.E.2d 386 (Ct.App.2003) (determination of existence of easement is action at law; establishing existence of easement is question of fact in law action). In an action at law tried without a jury, the judge's findings of fact will not be disturbed on appeal unless there is no evidence to support the judge's finding. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

The question of the extent of a grant of an easement is an action in equity. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997); Lighthouse Tennis Club Village Horizontal Property Regime LXVI v. South Island Pub. Serv. Dist., 355 S.C. 529, 586 S.E.2d 146 (Ct.App.2003); Eldridge v. City of Greenwood, 331 S.C. 398, 503 S.E.2d 191 (Ct.App. 1998); Smith, 312 S.C. at 465, 441 S.E.2d at 334. "Thus, this Court may take its own view of the evidence." Tupper, 326 S.C. at 323, 487 S.E.2d at 190; see also Binkley v. Rabon Creek Watershed Conservation Dist., 348 S.C. 58, 558 S.E.2d 902 (Ct.App.2001) (scope of easement is equitable matter in which reviewing court may take its own view of preponderance of evidence).

LAW/ANALYSIS

The Goodwins contend the master did not have the authority to move an existing easement, or alternatively, even if he did have the authority, the master erred in doing so under the facts of this particular case. We disagree.

The issue asseverated in this case is novel. Irrefutably, the question presented is of particular importance to trial courts.

The traditional rule concerning easements is that "the location of an easement once selected or fixed cannot be changed by either the landowner or the easement owner without the other's consent, which can be express or implied." 25 Am. Jur.2d Easements and Licenses § 79 (1996) (footnotes omitted). Thus, "[a]fter a way has been located, it cannot be changed by either party without the consent of the other, even if the way so located becomes detrimental to the use and convenience of the servient estate." Id.; see also Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex.Ct.App.1993) ("Once established, the location of the easement cannot be changed by either the easement owner or the servient owner without the consent of both parties, even though the use of the easement where located becomes detrimental to the use of the servient estate."); 28A C.J.S. Easements § 157 (1996) ("As a general rule, in the absence of statutes to the contrary, the location of an easement cannot be changed by either party without the other's consent, after it has been once established either by the express terms of the grant or by the acts of the parties, except under the authority of an express or implied grant or reservation to this effect.") (footnotes omitted); F.M. English, Annotation, Relocation of Easements, 80 A.L.R.2d 743 § 4 (1961) ("Language is frequently found in the cases to the general effect that an easement, once located, cannot be relocated without the consent of the parties thereto.").

Although South Carolina courts have yet to address this particular issue, the Goodwins cite several cases from other jurisdictions in support of the traditional rule regarding easements, including MacMeekin v. Low Income Hous. Inst., Inc., 111 Wash.App. 188, 45 P.3d 570 (2002), and Soderberg v. Weisel, 455 Pa.Super. 158, 687 A.2d 839 (1997). In MacMeekin, an action to quiet title to an easement, the Court of Appeals of Washington was confronted with the issue of whether a court had the power to relocate an existing easement by prescription without the permission of the owner of the dominant estate. After reviewing cases from other jurisdictions, the court decided: "Washington adheres to the traditional rule that easements, however created, are property rights, and as such are not subject to relocation absent the consent of both parties." MacMeekin, 45 P.3d at 579 (emphasis added).

Soderberg, while acknowledging the general rule, ultimately adopted a position inconsistent with that championed by the Goodwins. See Soderberg, 687 A.2d at 842. In that case, the owners of the servient parcel brought an action against the owners of the dominant parcel seeking to quiet title or, in the alternative, to relocate an easement that was established by prescription. The easement in issue was a road in close proximity to the servient owner's home that posed dangers to their small children. Id. at 841. In contrast to MacMeekin, the Superior Court of Pennsylvania adopted the minority rule, holding "a court may compel relocation of an easement if that relocation would not substantially interfere with the easement holder's use and enjoyment of the right of way and it advances the interest of justice." Id. at 844. Many of the cases adopting the traditional rule deal with express easements—not with easements created by necessity. We recognize that it should be more difficult to relocate an express easement, as it is akin to a contract and is bargained for by the parties. MacMeekin, cited by the Goodwins for the traditional approach, supports this position by acknowledging that most of the cases addressing the issue of whether a court can relocate an easement without the consent of both parties deal with express easements. MacMeekin, 45 P.3d at 575-76.

Before adopting the minority view, the Soderberg court explained:

Prescriptive easements are ... quite different from express grant easements. Express grant easements, once acquired, are much more difficult to alter. A prescriptive easement, however, differs markedly from an express grant easement, because the prescriptive easement is not fixed by agreement between the parties or their predecessors in interest.

Soderberg, 687 A.2d at 843 n. 3 (citation omitted). The court further expounded that "alterations of easements expressly granted will be interpreted under contract law principles; permission to alter must be intended by words or meaning of grant." Id. (citation omitted). The court found prescriptive easements, because they are not fixed by agreement among the parties, should be handled differently than express easements. Id. We agree with this reasoning and conclude the same is true with easements created by necessity.

The approach adopted by the Soderberg court is consonant with the position adopted by the drafters of the Restatement (Third) of Property: Servitudes § 4.8 (2000), which provides that, in certain situations, the owner of the servient estate can relocate an easement unilaterally. Section 4.8 of the Restatement reads in pertinent part:

Except where the location and dimensions are determined by the instrument or circumstances surrounding creation of a servitude, they are determined as follows:

....

(3) Unless expressly denied by the terms of an easement,... the owner of

...