Murrells Inlet Corp. v. Ward, No. 4384.

• Court: Court of Appeals of South Carolina
• Writing for the Court: Anderson
• Citation: 378 S.C. 225,662 S.E.2d 452
• Parties: In The Court of Appeals MURRELLS INLET CORPORATION, Respondent, v. Iva Mae WARD, Appellant.
• Docket Number: No. 4384.
• Decision Date: 02 May 2008

662 S.E.2d 452 378 S.C. 225 In The Court of Appeals MURRELLS INLET CORPORATION, Respondent,
v.
Iva Mae WARD, Appellant. No. 4384. Court of Appeals of South Carolina. Submitted May 1, 2008. Decided May 2, 2008. Rehearing Denied June 26, 2008.

[662 S.E.2d 453]

William Isaac Diggs, of Myrtle Beach, for Appellant.

Natasha M. Hanna, of Myrtle Beach, for Respondent.

ANDERSON, J.

Iva Mae Ward (Ward) appeals the master-in-equity's order finding Ward created a fifty foot easement by recording a plat depicting the easement and requiring Ward to: (1) refrain from interference with the easement and (2) remove all encroachments from the easement. We affirm.¹

FACTUAL/PROCEDURAL BACKGROUND

Appellant Ward and other heirs inherited a 6.86 acre tract near Stevens Cross Road in Little River, South Carolina. In 1987, Ward became the sole owner of the entire tract. In 1990, Ward divided the land into five lots for the purpose of transferring portions of the property to her children.

When Ward subdivided the property, she granted a fifty foot right-of-way to the lots to allow access from Highway 57, as evidenced in a plat prepared for Ward by C.B. Berry R.L.S. and recorded in the Horry County Register of Deeds. In the pleadings, Ward admitted she provided the fifty foot easement pursuant to the Horry County Zoning and Planning Regulations. However, Ward now claims the surveyor included the road on the plat under the erroneous belief that the regulations

662 S.E.2d 454

required the easement for the creation of a subdivision. Additionally, Ward avers she was unaware the plat included a fifty foot roadway and only intended for the existing driveway to remain as a shared private drive.

Ward owns a house located on Lot A. She has resided and continues to reside at this address since the subdivision of the property. Lot A is the closest lot to the access point for the subdivision off of Highway 57.

After subdividing the property, Ward conveyed Lot 4 to her son Michael, who constructed a house on the property. Lot 4 is located behind the other lots and is the farthest from Highway 57. Access to Lot 4 is provided by a right-of-way running across one side of Ward's property. Michael used this right-of-way for access to his portion of the tract.

In 2003, Michael defaulted on a mortgage on the property and went into foreclosure. In 2005, Respondent Murrells Inlet Corporation (MIC) purchased Lot 4, including the house and any improvements thereon and the accompanying right-of-way. MIC then began using Lot 4 as rental property and presently has tenants residing in the home.

MIC purchased the property with the understanding that there was a fifty foot right-of-way providing access to the lot. The right-of-way is an unpaved dirt road that runs from Highway 57 through the edge of Ward's property, passing alongside each of the lots in the tract, and ending at Lot 4. It consists of two dirt ruts which allow only a single vehicle at a time to access the lots.

The right-of-way is currently in poor condition. Several encroachments in the right-of-way add to the difficulties inherent in traveling the road in its current state and prevent any improvements to the road from being completed. Because of the road's present condition and the encroachments, the tenants residing at Lot 4 have a hard time getting to and from their home and have expressed concerns that it may be impossible for an emergency vehicle to reach Lot 4. MIC has repeatedly objected to Ward about the obstruction of the right-of-way to no avail.

MIC filed a Petition for an Order to Remove Encroachments and a Rule to Show Cause against Ward and a hearing was held. In issuing the order, the master concluded that Ward granted and dedicated an easement to Lot 4 when the tract was subdivided and Ward was not allowed to interfere with the use of the granted easement.

In the Order to Remove Encroachments, the master noted that Ward and her family placed the following encroachments in the right-of-way: an old truck filled with trash and debris, a rusty water heater, wooden poles, a wooden storage shed, a garden, various scrap metal, mattress springs, lawnmowers, and some other miscellaneous trash and debris. The master found that Ward's misuse of the easement deprives MIC of the concurrent use of the easement for the purposes of ingress and egress to Lot 4.

The master ordered:

[Ward] shall not block the easement or use the easement for any purpose other than as a private driveway. [Ward] shall, within fourteen days, remove those items that are within the fifty-foot right of way which encroaches upon the easement. If [Ward] does not remove those items within the time allowed, [MIC] may remove said items and [Ward] shall pay the cost of the removal. [Ward] shall also pay [MIC] the costs of this action and must pay the pro-rata share of any further improvements to the road.

Following the decision of the master, Ward filed a Motion for Reconsideration. The motion was denied.

ISSUE

Does a plat recorded when property is subdivided confer an easement to the subsequent grantees of the property to the extent the easement is delineated in the plat?

STANDARD OF REVIEW

The determination of the existence of an easement is a question of fact in a law action and is subject to the any evidence standard of review when tried by a judge without a jury. Slear v. Hanna, 329 S.C. 407, 410, 496 S.E.2d 633, 635 (1998); Goodwin

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v. Johnson, 357 S.C. 49, 52, 591 S.E.2d 34, 35-36 (Ct.App.2003); Pittman v. Lowther, 355 S.C. 536, 540, 586 S.E.2d 149, 151 (Ct.App.2003); Revis v. Barrett, 321 S.C. 206, 208, 467 S.E.2d 460, 462 (Ct.App.1996); Smith v. Commissioners of Pub. Works, 312 S.C. 460, 465, 441 S.E.2d 331, 334 (Ct.App. 1994); see also Jowers v. Hornsby, 292 S.C. 549, 551, 357 S.E.2d 710, 711 (1987) ("The decision of the trier of fact as to whether or not an easement exists will be reviewed by this Court as an action at law."). 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 evidentiary support for the judge's findings. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).

While the determination of the existence of an easement is a question of fact in a law action, the question of the extent of an easement is an action in equity. Tupper v. Dorchester County, 326 S.C. 318, 323, 487 S.E.2d 187, 190 (1997); Plott v. Justin Enters., 374 S.C. 504, 510, 649 S.E.2d 92, 95 (Ct.App.2007); Lighthouse Tennis Club Village Horizontal Prop. Regime LXVI v. South Island Pub. Serv. Dist., 355 S.C. 529, 532, 586 S.E.2d 146, 147 (Ct.App.2003); Eldridge v. City of Greenwood, 331 S.C. 398, 416, 503 S.E.2d 191, 200 (Ct.App.1998); Smith, 312 S.C. at 465, 441 S.E.2d at 334. "[In] an action in equity referred to a master for final judgment, we may find facts in accordance with our own view of the preponderance of the evidence." Van Blarcum v. North Myrtle Beach, 337 S.C. 446, 450, 523 S.E.2d 486, 488 (Ct.App.1999); accord Stackhouse v. Cook, 271 S.C. 518, 521, 248 S.E.2d 482, 484 (1978); Settlemeyer v. McCluney, 359 S.C. 317, 320, 596 S.E.2d 514, 516 (Ct.App.2004); Thomas v. Mitchell, 287 S.C. 35, 37-38, 336 S.E.2d 154, 155 (Ct.App.1985); see also Tupper, 326 S.C. at 323, 487 S.E.2d at 190 (finding since it is an action in equity, the Court may take its own view of the evidence); Binkley v. Rabon Creek Watershed Conservation Dist., 348 S.C. 58, 67, 558 S.E.2d 902, 907 (Ct.App.2001) ("The scope of an easement is an equitable matter in which a reviewing court may take its own view of a...