Jacobs v. Service Merchandise Co., Inc., S-R

Citation297 S.C. 123,375 S.E.2d 1
Decision Date21 September 1988
Docket NumberNo. 1238,S-R,1238
PartiesRichard E. JACOBS, David H. Jacobs, Dominic A. Visconsi, R.F. Coffin, Edward H. Crane, and Anthony W. Weigand, co-partners doing business under the partnership firm name and style of JVJ Columbia Joint Venture, and Alan B. Kahn, individually and as custodian for Kevin A. Kahn, Monique B. Kahn, and Charles B. Kahn, Stadium Realty Corporation, Warehouses, Inc., andChas., Inc., co-partners doing business under the partnership firm name and style of Kahn Joint Venture, JVJ Columbia Joint Venture and Kahn Joint Venture being co-partners doing business under the partnership firm name and style of Columbia Joint Venture, Appellants, v. SERVICE MERCHANDISE COMPANY, INC., Fortune Masingill Parish Development Corporation, The South Carolina National Bank as Executor and Trustee under Will of Judson B. Smith, Deceased, and L.W. Smith, III, F.D. Windham, and Henry Dent Smith as Trustees of the L.W. Smith, Jr., Trust, Respondents. . Heard
CourtCourt of Appeals of South Carolina

William C. Stork, Robert E. Salane and R. Lewis Johnson, of Barnes, Stork and Johnson, Columbia, for appellants.

Julius W. McKay, and Theodore B. Guerard, of Haynsworth, Marion, McKay & Guerard, Columbia, for respondents.

CURETON, Judge.

Appellants commenced this action pursuant to the Uniform Declaratory Judgment Act seeking a declaration of the parties' rights under a written easement agreement. Appellants asked the court to declare that the road easement granted in the agreement was intended to benefit only Respondent-Smith's property to the exclusion of adjacent property known as the Snyder tract. Respondents deny the property is so restricted. They also assert the appellants have dedicated the easement to public use and are estopped to deny the Snyder Tract access to the road easement. From an order of the circuit court holding access to the road was not restricted in the manner suggested by appellants, this appeal followed. We affirm.

The appellants are partners doing business as Columbia Joint Ventures, a general partnership which developed a regional shopping center in Richland County known as Columbia Mall. Respondent-Service Merchandise is successor in interest to both a 3 acre tract (Snyder Tract) formerly owned by Snyder and an adjacent 5 acre tract formerly owned by the Smith Trust. Respondent-Fortune Masingill Parish Development Corporation has contracted to purchase from the Smith Trust a 19 acre tract adjacent to both Columbia Mall and the 8 acres owned by Service Merchandise. Service Merchandise and Fortune Masingill plan to build a shopping center on this property and intend to access the road (Ring Road) at a point referred to as Access Point No. 2. For purposes of this appeal, the Appellants will be designated as Columbia and the Respondents as Smith.

Ring Road is located entirely upon land owned by Columbia except for that portion located within the "Developer Easement Parcel" owned by Smith. The road encircles Columbia Mall and is maintained by Columbia. The portion of Ring Road which includes Access Point No. 2 is part of the property to be conveyed by Smith to Fortune Masingill.

In order to develop Ring Road, Columbia contacted landowners abutting the proposed new road, including Smith and Snyder, and obtained their permission to close portions of certain public streets which were being used by Smith, Snyder and the other abutting landowners as access to nearby main traffic arteries. Having obtained their consent, Columbia petitioned Richland County Council to close these streets. In consideration of Richland County agreeing to close and convey its interest in these streets, Columbia agreed to permit the public to use Ring Road "at all times" and agreed it would not close Ring Road without Richland County's approval.

By written stipulation, the parties agreed the public has a right to use Ring Road. They also stipulated in the Statement of the Case that the "portion of the Smith Property which is covered by Ring Road is designated in the Easement Agreement as the Developer Easement Parcel and Ring Road Easement." Additionally, Columbia has not excepted to the trial judge's ruling that Ring Road is now "used by the general public both to access Columbia Mall and as a through road."

Paragraphs 1 and 6 of the Easement Agreement are at the heart of this controversy. Paragraph 1 provides 1. Smith hereby grants to Columbia, its successors and assigns, for the benefit of the Columbia Property and any other property presently owned or hereafter acquired by Columbia which is contiguous to any portion of the Columbia Property, the perpetual, exclusive right, privilege and easement over a strip of land fifty (50) feet in width, which strip of land is designated and shown on Exhibit A-2 as "Developer Easement Parcel" and is more fully described on Exhibit D, attached hereto and made a part hereof, and is hereinafter referred to as the "Ring Road Easement", to construct, maintain, repair and replace a roadway (not less than forty (40) feet in pavement width) in the approximate location designated for the "Shopping Center Ring Road", as shown on Exhibit A, together with such slopes, curb and gutter and other ancillary improvements as Columbia may deem necessary, and subject to Paragraph 6 hereof, to use such roadway for pedestrian and vehicular traffic.

Paragraph 6 of the Agreement purports to convey back to Smith a non-exclusive easement to use all of Ring Road, including that portion of the road which covers the Developer Easement Parcel, the fee of which is owned by Smith. Paragraph 6 of the Agreement states the easement to Smith is given for the "purpose of providing ingress and egress from the Smith Property only at Access Point Nos. 1 and 2...." The paragraph also grants Smith the right to install curbs on Ring Road at Access Points 1 and 2. The paragraph ends by stating "[t]he foregoing rights, privileges and easements shall be used by Smith, his legal representatives and assigns, in common with Columbia, its tenants, invitees, successors and assigns."

The trial judge concluded Smith, as holder of the fee to the Developer Easement Parcel, could not also hold a lesser estate of a non-exclusive easement to use the property. He thus held that regardless of the Agreement's language, the effect of the Agreement was that Smith granted to Columbia a non-exclusive easement to construct, use, and maintain a road upon the Developer Easement Parcel and reserved unto itself the right to use the property over which the easement lies. The trial judge also held Ring Road had been dedicated to public use and, that as a member of the public, Smith and the owner of the Snyder Tract had the right to enjoy unrestricted access to Ring Road. Finally, he rejected Columbia's contention the width of the pavement within Access Point No. 2 curb cut is limited to forty (40) feet and held Smith could pave the road to a width of fifty (50) feet.

The issues raised in this appeal are whether (1) Columbia may restrict use of Access Point No. 2 so that owners of the Snyder Tract may not access Ring Road through Access Point No. 2, (2) Smith may pave the roadway in the Access Point to a width in excess of forty (40) feet, and (3) the lower court erred in filing its amended order after Columbia served and filed its Notice of Intent to Appeal from the first order.

Before we consider the arguments in this case, we must determine our scope of review. Columbia argues this is an action at law. We agree. The character of an action is determined by the main purpose of the complaint. Alford v. Martin, 176 S.C. 207, 180 S.E. 13 (1935). An action which is essentially one at law is not converted into an equitable action because it is brought pursuant to the Declaratory Judgment Act. See Legette v. Smith, 226 S.C. 403, 85 S.E.2d 576 (1955); Section 15-53-90, Code of Laws of South Carolina, 1976. An action to construe a written unambiguous contract is an action at law. Texcon, Inc. v. Anderson Aviation, Inc., 284 S.C. 307, 326 S.E.2d 168 (Ct.App.1985); J.T.M. Co., Inc. v. Vane, 283 S.C. 512, 323 S.E.2d 794 (Ct.App.1984). Additional rules governing the construction of contracts are stated in the case of Gamble, Givens & Moody v. Moise, 288 S.C. 210, 341 S.E.2d 147 (Ct.App.1986), as follows:

In construing a contract, the primary objective is to ascertain and give effect to the intention of the parties. Williams v. Teran, Inc., 266 S.C. 55, 221 S.E.2d 526 (1976); Bruce v. Blalock, 241 S.C 155, 127 S.E.2d 439 (1962). The parties' intention must, in the first instance, be derived from the language of the contract. Superior Automobile Insurance Co. v. Maners, 261 S.C. 257, 199 S.E.2d 719 (1973). If its language is plain, unambiguous, and capable of only one reasonable interpretation, no construction is required and the contract's language determines the instrument's force and effect. Blakeley v. Rabon, 266 S.C. 68, 221 S.E.2d 767 (1976); Fryar v. Currin, 280 S.C. 241, 312 S.E.2d 16 (Ct.App.1984). Mere lack of clarity on casual reading is not the standard for determining whether a contract is afflicted with ambiguity. McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945).

Id. at 215, 341 S.E.2d at 150.

Columbia first argues the trial court misconstrues the easement agreement to provide that it does not have an exclusive easement in the Developer Easement Parcel. It urges the proper construction of the Easement Agreement is that Columbia and Smith created reciprocal, appurtenant easements in Ring Road by express grant. It further argues the appurtenant easement it granted Smith benefited only the property Smith retained at the time of the execution of the Agreement and cannot now be extended to benefit the adjacent Snyder Tract.

We disagree with Columbia's characterization of the easement. As defined by our Supreme Court, an appurtenant easement must "inhere in the...

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