Morris v. Townsend
| Decision Date | 02 March 1970 |
| Docket Number | No. 19020,19020 |
| Citation | 253 S.C. 628,172 S.E.2d 819 |
| Court | South Carolina Supreme Court |
| Parties | J. B. MORRIS, Jr. and Thomas H. Burton, Appellants, v. Fred D. TOWNSEND, Respondent. |
Kneece & Kneece, Columbia, for appellants.
Townsend & Townsend, Going & Going, Columbia, for respondent.
This equity action was commenced by plaintiffs (who are appellants), seeking a permanent injunction to compel the defendant (who is the respondent) to remove a no trespassing sign posted on his property, which plaintiffs allege was causing irreparable damages to them. The complaint alleges that the plaintiffs own 18 acres of land adjacent to and extending into a lake which plaintiffs are entitled to use in a manner not inconsistent with the use of the lake by the defendant, who built it. It alleges that the sign is misleading and conveys the idea to plaintiffs' tenants of a mobile home park that the defendant is the sole owner of the lake and that no one else is entitled to use the same.
The answer is first a general denial, and secondly defendant counterclaims, alleging that he built the dam which created the lake at his own expense and has the sole right to the use and control of the lake. The counterclaim alleges further that the defendant owns an easement in perpetuity to impound waters and submerge and flood plaintiffs' lands covered by lake waters.
It is also alleged in the counterclaim that plaintiffs are violating conditions and restrictions imposed upon a parcel of their own lands, and are wrongfully collecting surface water and casting it in concentrated form upon defendant's property and lake. The prayer for relief asks (1) that the complaint be dismissed; (2) that the plaintiffs, their tenants, lessees, patrons, invitees and guests be permanently enjoined from entering upon, trespassing or making use whatsoever of the defendant's land or the waters of his lake; (3) that the plaintiffs, their tenants, lessees, patrons, invitees and guests be permanently enjoined from violating the conditions and restrictions imposed upon their own lands; (4) that the plaintiffs, their servants and agents, be permanently enjoined from collecting surface waters and casting same in concentrated form upon defendant's property and into his lake, or committing a nuisance thereabout.
The reply of the plaintiffs is a general denial of the counterclaim and asks that the counterclaim be dismissed.
The case was heard by the Master in Equity for Richland County, who, after taking testimony, recommended that the complaint be dismissed and that the relief sought in the counterclaim be granted. Exceptions were taken to the master's report and the trial judge dismissed the same, adopting the master's report in toto. The plaintiffs appeal from such order.
The facts in the case are not greatly in dispute. The defendant accumulated over a period of years approximately 200 acres of land along both sides of the bed of Big Jackson Creek in Richland County. In 1963 he built a dam costing about $30,000 at his own expense and brought into being a lake covering approximately 55 acres. The height of the dam built by the defendant caused the lake waters to cover his own lands plus between 1 and 2 acres of the adjoining 18 acre tract acquired by plaintiffs on June 17, 1967.
It is beyond dispute that on June 7, 1967 the defendant acquired an easement to flood and submerge and impound waters in perpetuity upon the lands now acquired and owned by the plaintiffs to the extent and at the level afforded by the dam as it existed at that time. There was reserved to plaintiffs' predecessors in title and in turn to the plaintiffs, 'the right at any time without notice to reclaim said land from inundation by filling in the same or by any other appropriate means, in which event the right and easement hereby granted shall terminate as to the lands so reclaimed.'
The plaintiffs with full knowledge of the easement, took title to the 18 acre tract adjoining that of defendant, with 1 to 2 acres covered by waters of the lake.
After plaintiffs acquired title to the 18 acre tract they began development of a 60 unit mobile home trailer park and advertised extensively that the lake was available for the use of their tenants. Their tenants, guests and others, commenced using the lake for swimming, fishing and recreational purposes. It was then that the defendant erected the no trespassing sign which brought about the filing of the complaint in this action.
One parcel of plaintiffs' land, referred to as Parcel B, containing 1.1 acres and not covered by water, is restricted by deed from defendant as follows:
'(1) That said property shall be used for residential purposes only, and no trailer, mobile home, tent, basement or shack shall be placed, located or used thereon.
'(2) That no sanitary sewage, kitchen waste, or the effluent therefrom shall be discharged on said property within 35 feet of the adjacent lake either on surface or underground, nor shall anything be done or permitted on said premises or any part thereof which will constitute a nuisance or contaminate the waters of the adjacent lake.
'(3) The grantor reserves the right unto himself, his heirs and assigns in perpetuity to impound water upon and flood that portion of the within described premises which may be subject to flood from abnormally high waters of the adjacent lake as now constructed by dam across Big Jackson Creek along Windsor Lake Boulevard, said County and State, property of the grantor herein.
'(4) These restrictions are made for the benefit of the grantor only, who reserves the right to modify or release the same at will.'
Defendant alleges that the plaintiffs have violated this restriction by permitting and encouraging on this parcel of land cooking, picnicking, games and other recreational uses by trailer park lessees, tenants and patrons of the plaintiffs.
The first question raised by appellants as stated in their brief is as follows:
This question must be answered in two parts. We first determine the alleged right of the plaintiffs to use the water of defendant's lake above defendant's land. One not a riparian owner (as the plaintiffs here), but seeking to make use of waters of a lake created by the dam of another, must base his claim upon a right acquired through prescription or grant. Prescriptive rights in the plaintiffs are not here involved since the lake itself was not brought into being until 1963. No grant of easement in favor of the plaintiffs or their predecessors in title has been produced in evidence as a basis for their claim. The defendant, at his own expense, constructed the lake and as sole riparian owner impounded water available only to him. In the process a relatively insignificant portion of land, described in argument of counsel as between 1 and 2 acres, was inundated.
There are three instruments, all dated June 7, 1967, involved in the creation of the easement in favor of the defendant. Two of them are deeds from plaintiffs' predecessors in title, and each of them confers rights upon the defendant to flood and submerge the land involved. The third is a deed from the defendant to plaintiffs' predecessors in title conveying land but reserving to the defendant the right to flood and submerge land (Parcel B containing 1.1 acres) now owned by the plaintiffs. From a study of these instruments we find nothing contained therein indicating an intent on the part of the grantors or of the grantee that rights to control his lake be surrendered by the defendant. The language is not uncertain or ambiguous in any respect, and is certainly not subject to an interpretation that the defendant meant to grant rights in the lake, or that plaintiffs' predecessors in title intended to receive rights growing out of these instruments. By virtue of the express conveyances of plaintiffs' predecessors in title to the defendant of the right to flood certain portions of the land now owned by the plaintiffs, the land of the defendant became a dominant estate which attached to and became appurtenant to his...
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Bennett v. Investors Title Ins. Co.
...Steele v. Williams, 204 S.C. 124, 28 S.E.2d 644; and `gives no title to the land on which the servitude is imposed,' Morris v. Townsend, 253 S.C. 628, 172 S.E.2d 819. An easement is therefore not an estate in lands in the usual Id. Thus, the court held the easement in that case "in no way c......
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Bennett v. Investors Title Ins. Co., 4153.
...Steele v. Williams, 204 S.C. 124, 28 S.E.2d 644; and `gives no title to the land on which the servitude is imposed,' Morris v. Townsend, 253 S.C. 628, 172 S.E.2d 819. An easement is therefore not an estate in lands in the usual Id. Thus, the court held the easement in that case "in no way c......
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Main v. Thomason
...An easement gives no title to land on which servitude is imposed, but it is a property or an interest in land. Morris v. Townsend, 253 S.C. 628, 172 S.E.2d 819 (1970). In this case, Main did not receive an ownership interest in the driveway, he only received permission to enter the Thomason......
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Jacobs v. Service Merchandise Co., Inc., S-R
...of the easement must also own the fee. See Douglas v. Medical Investors, Inc. 256 S.C. 440, 182 S.E.2d 720 (1971); Morris v. Townsend, 253 S.C. 628, 172 S.E.2d 819 (1970); 28 C.J.S. Easements Section 1 at 623 (1941) (an easement is distinct from the ownership of the land to which it is atta......