McKnight v. Lowder, 2010-UP-416
| Decision Date | 20 September 2010 |
| Docket Number | 2010-UP-416 |
| Parties | Mavis L. McKnight, Respondent, v. Irby Ned Myron Lowder, Appellant. |
| Court | South Carolina Court of Appeals |
UNPUBLISHED OPINION
Submitted September 1, 2010
Appeal From Florence County Haigh Porter, Special Referee by Designation of the Presiding Circuit Court Judge
Stephen J. Wukela, of Florence, for Appellant.
E LeRoy Nettles, Sr. and Marian D. Nettles, both of Lake City for Respondent.
Irby Ned Myron Lowder appeals the Special Referee's Order recognizing a twenty-five foot wide easement across his property, arguing no evidence existed in the record to support the Special Referee's factual finding. We reverse and remand for further factual findings because the Special Referee's finding was not supported by a preponderance of the evidence. [1]
Lowder and McKnight are brother and sister and adjacent landowners. The easement at issue is a dirt road crossing Lowder's property that McKnight has used for ingress and egress to her lot since 1974. In February of 2007, McKnight brought an action to recognize the existence of her easement for ingress/egress and to enjoin Lowder from obstructing the easement. The matter was heard by a Special Referee. Prior to the hearing, Lowder and McKnight both conceded the existence of the easement, but disputed the width of the easement.
During the hearing, Lowder used visual scales on two separate county plats entered into evidence to mathematically calculate the actual width of the dirt road at 9.375 feet. McKnight's husband testified he and McKnight needed a twenty-five foot wide easement to permit fire trucks and ambulances to access their mobile home in the event of an emergency. McKnight's husband testified Lowder obstructed their use of the dirt road by moving a trailer onto his land bordering the dirt road and piling cut tree logs along the edge of the dirt road, thereby narrowing the width of the dirt road to eleven feet. The Special Referee issued an order recognizing a twenty-five foot wide easement. This appeal followed.
"The determination of the existence of an easement is a question of fact in a law action...." Frazier v Smallseed, 384 S.C. 56, 64, 682 S.E.2d 8, 12 (Ct. App. 2009) (citation omitted). "However, the determination of the extent of a grant of an easement is an action in equity." Id. "In an action in equity, the appellate court may resolve questions of fact in accordance with its own view of the preponderance of the evidence." Fesmire v. Digh, 385 S.C. 296, 303, 683 S.E.2d 803, 807 (Ct. App. 2009).
"An easement is a right of use over another's property." Inlet Harbour v. S.C. Dep't of Parks, Recreation, and Tourism, 377 S.C. 86, 91, 659 S.E.2d 151, 154 (2008). "Easements can arise by both express creation and by implication." Id. "Implied easements are based upon the theory that whenever one conveys property, he intends to convey whatever is necessary for the property's use and enjoyment." Id. "[T]he intentions of the parties to the transaction are the overriding focus when examining implied easements." Id. at 92, 659 S.E.2d at 154.
"The right of the easement owner and the right of the landowner are not absolute, irrelative and uncontrolled, but are so limited, each by the other, that there may be a due and reasonable enjoyment of both." Hill v. Carolina Power & Light Co., 204 S.C. 83, 96, 28 S.E.2d 545, 549 (1943). "In other words, a grant or reservation of an easement in general terms is limited to a use which is reasonably necessary and convenient and as little burdensome to the servient estate as possible for the use contemplated." Id.
The Special Referee's...
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