Sandy Island Corp. v. Ragsdale

• Decision Date: 30 August 1965
• Docket Number: No. 18397,18397
• Citation: 143 S.E.2d 803,246 S.C. 414
• Court: South Carolina Supreme Court
• Parties: SANDY ISLAND CORPORATION, Respondent, v. T. S. RAGSDALE, Appellant.

Page 803

143 S.E.2d 803

246 S.C. 414

SANDY ISLAND CORPORATION, Respondent, v. T. S. RAGSDALE, Appellant.

No. 18397.

Supreme Court of South Carolina.

Aug. 30, 1965.

Smith & Moore, Georgetown, for appellant.

James P. Stevens, Loris, Ralph Hoffman, Conway, for respondent.

MOSS, Justice:

Sandy Island Corporation, the respondent herein, instituted this action to enjoin T. S. Ragsdale, the appellant herein, from obstructing a right-of-way alleged to exist in its favor over his land.

The respondent alleges that it is the owner and in possession of a tract of land in Georgetown County, being a portion of Sandy Island, containing some 8,000 acres, more or less, which was conveyed to it by Williams Furniture Corporation, by a deed dated July 24, 1964. There is specifically excepted from the aforesaid conveyance four tracts of land included within the boundaries of the original tract, one of which was a conveyance by Williams Furniture Corporation to T. S. Ragsdale on August 15, 1961, of a tract containing 185 acres, more or less. Included in the conveyance by Williams Furniture Corporation to Sandy Island Corporation was the easement and right-of-way which had been reserved in its deed to Ragsdale. The easement and right-of-way so reserved was as follows:

'Williams Furniture Corporation, the grantor herein, reserves unto itself, and its successors and assigns, a perpetual easement and right-of-way over the road nearest Cypress Creek leading from old 'River Road' to the Great Pee Dee River, together with an easement and right-of-way on and over 5 acres of high land on the edge of said Great Pee Dee River at the river end of said road from the old 'River Road'. This easement and right-of-way over said road shall be for purposes of ingress and egress to said Great Pee Dee River and thence by barge or boat to Sandy Island, and the said 5 acres of high land are to be used for loading logs, forest products, etc., from barges or otherwise from the river and for decking logs, forest products, etc., and loading logs coming off of Sandy Island, and the said road to be used for transporting logs, forest products, etc., from the river bank out to the old 'River Road.' The said road may be used jointly by grantor and its successors and assigns, and by grantee, and his heirs and assigns, and grantor shall maintain said road in a passable condition weather permitting, when using it for hauling, but under no obligation to maintain same at any other time, and said grantee shall have no obligation to maintain said road, but shall have the right to do so if desired.'

The respondent alleges that the aforesaid easement and right-of-way is the only one that it owns that extends from a public road to the Great Pee Dee River so that its agents and servants may cross over and have access to its property, which is completely surrounded by water, and is a part of Sandy Island. It is further alleged that the appellant has constructed a gate across the aforesaid right-of-way at its end on Old River Road and has caused the gate to be closed and locked, thereby depriving the respondent, its agents and servants of the right to use said right-of-way. It is then alleged that unless the Court restrains and enjoins the appellant from obstructing the said right-of-way it will suffer irreparable harm and damage.

The appellant demurred to the complaint and contends that it appears upon the face of the complaint that the easement or right- of-way reserved by Williams Furniture Corporation in its deed to him created only an easement in gross and such could not be assigned or transferred by Williams Furniture Corporation to the respondent. It is further asserted by the appellant that the reservation above referred to created an easement in gross and such was personal to Williams Furniture Corporation and the attempted conveyance of such to the respondent extinguished the easement.

The demurrer came on to be heard before the Honorable J. B. Ness, Presiding Judge, and on November 23, 1964, he overruled the demurrer and in his order said: 'Under the allegations of the Complaint, I am of the opinion that I would not be justified in holding that only an easement in gross was created, which would have to be my holding if I granted the demurrer. I am of the opinion that it would be better to overrule the demurrer and let the Court at the trial of the case determine the facts thereof.' This appeal followed.

It is elementary that in passing upon a demurrer the Court is limited to a consideration of the pleadings under attack. All of the factual allegations thereof that are properly pleaded are for the purpose of such consideration deemed admitted. When a fact is pleaded, whatever inferences of law or conclusions of fact that may property arise from it, are to be regarded as embraced in such averment. Outlaw v. Calhoun Life Ins. Co., 236 S.C. 272, 113 S.E.2d 817. When a complaint is attacked by a demurrer it must be liberally construed. Cline v. Southern Ry. Co., 110 S.C. 534, 96 S.E. 532. The law requires a plaintiff to state the facts constituting his cause of action and demand the relief to which he supposes himself entitled, he is not required to characterize the facts stated, or to give his cause of action a name; that being the province of the court. Furman v. A. C. Tuxbury Land & Timber Co., 112 S.C. 71, 99 S.E. 111. A demurrer to a complaint will be overruled if any cause of action is stated. Babb v. Paul Revere Life Ins. Co., 224 S.C. 1, 77 S.E.2d 267. A matter not relied on as a ground of the demurrer is not properly before the court for consideration. Seaboard Air Line Ry. Co. v. Jones, 120 S.C. 354, 113 S.E. 142.

One of the ways of creating an easement is by an express written grant. A reservation of an easement in a deed by which lands are conveyed is equivalent, for the purpose of the creation of the easement, to an express grant of the easement by the grantee of the lands. 17A Am.Jur., Easements, Sections 18 and 31, pages 631 and 641. The easement here is one by reservation.

An easement is either 'appurtenant' or 'in gross'. An appendant or appurtenant easement must inhere in the land, concern the premises, have one terminus on the land of the party claiming it, and be essentially necessary to the enjoyment thereof. It attaches to, and passes with, the dominant tenement as an appurtenance thereof. An easement, or right-of-way, in gross is a mere personal privilege to the...