Steele v. Williams

• Decision Date: 07 January 1944
• Docket Number: 15607.
• Citation: 28 S.E.2d 644,204 S.C. 124
• Parties: STEELE v. WILLIAMS.
• Court: South Carolina Supreme Court

28 S.E.2d 644

204 S.C. 124

STEELE v. WILLIAMS.

No. 15607.

Supreme Court of South Carolina

January 7, 1944

H P. Burbage and B. A. Morgan, both of Greenville, for appellant.

W B. McGowan, of Greenville, for respondent.

PHILIP H. STOLL, Acting Associate Justice.

In this action the appellant seeks to permanently enjoin the respondent from obstructing an alley that runs between their respective properties.

Appellant in his complaint alleges in substance that he is the owner of a certain lot of land and that in connection therewith he is legally entitled to the free use of egress and ingress of the alley or driveway adjoining said lot. And, further, that under the terms of the deeds in his chain of title that he has an easement in said driveway, and that said easement is appurtenant to his property, and is necessary to the enjoyment of said property.

The respondent by her answer admits the existence of the driveway but denies that the appellant has any right or easement in and to the said driveway. She contends that the easement created by and between herself and one Florence S. Smith was an easement in gross and that the said Florence S. Smith appellant's predecessor in title, could not convey any rights in and to said driveway since her right to the use of said driveway was an easement in gross, and that she could not by any act or deed convey or transfer her right to use said driveway or alley to another person.

There is no material dispute as to the facts in this case. In 1919, the respondent and Mrs. Florence S. Smith owned two adjoining lots of land facing on Vardry Street in the City of Greenville and extending back to Arlington Avenue. The side line of the Smith lot also ran along Anderson Street so that the Smith property abutted on three streets. In March, 1919, the respondent sold the rear portion of her lot which faced on Arlington Avenue to Mrs. Smith. A driveway was then established by respondent and Mrs. Smith across their respective property, said driveway running from Anderson Street westwardly and ending at a dead end on the line of the lot adjoining the line of respondent's property on the west. In entering the driveway from Anderson Street one first passes over the Smith property and then over the respondent's property.

Respondent's deed to Mrs. Smith for the lot she conveyed to her gave the alley as a boundary and contains a provision as follows "the alley above referred to is twelve feet wide and runs across the Florence S. Smith property entering into Anderson Street, its course being S. 73-30E, it being reserved for the joint use of the grantor and grantee, their heirs and assigns forever."

On the same day Mrs. Smith made a deed to the respondent conveying an easement to said driveway across her lot of land, and said deed contains this provision: "The grantor reserves the right to the joint use and easement to said alley for herself, her heirs and assigns forever."

Thereafter Mrs. Smith cut up the rear portion of her lot, together with the rear of the lot she had acquired from respondent, into three lots facing Anderson Street. Lot No. 1 was on the corner of Anderson Street and Arlington Avenue; lot No. 2 adjoined lot No. 1 facing on Anderson Street; and lot No. 3 adjoined lot No. 2 facing on Anderson Street, with its north side bounded by the driveway or alley which is the subject matter of this action.

In 1921 Mrs. Smith sold lot No. 3 to Mrs. Minnie Steele, the mother of appellant. Thereafter, Mrs. Steele conveyed said lot No. 3 to Russell Steele, the appellant.

In the deed of Mrs. Smith to Mrs. Steele and the deed of Mrs. Steele to the appellant, the driveway is not referred to in any way.

It further appears from the record that for some years the appellant had the use of the driveway, and that shortly prior to the commencement of this action the respondent constructed a fence on her property which obstructed appellant's use of the said driveway or alley.

There is no controversy as to the material facts of the case, and the only question raised by the appeal is whether in the exchange of deeds between the respondent and Mrs. Florence S. Smith an easement in gross or an easement appurtenant to land was created.

The cause was referred by Judge Oxner to Hon. E. Inman, Master for Greenville County, with directions to take the testimony and report his conclusions thereon both as to law and fact.

The Master's report is an able and exhaustive analysis of the law and the facts. His conclusions were that the exchange of deeds between respondent and Mrs. Florence S. Smith created easements in gross and not easements appurtenant to land, and recommended that the relief prayed for in the answer of the respondent be granted and that the appellant, his agents and servants be permanently enjoined from the use of the said alley.

To the Master's report the plaintiff excepted. The cause was then heard by the Hon. G. Dewey Oxner, Resident Judge of the Thirteenth Circuit who by his decree of September 2, 1940, confirmed the Report of the Master and permanently enjoined the appellant from using and going upon that part of the alley way described and mentioned in the complaint as owned by the respondent.

There are ten exceptions by appellant to the decree of Judge Oxner. In his brief, however, he makes three questions for determination. (1) Was it not the intention of the parties that the alley should be permanent? (2) Is not the defendant estopped? (3) Under all the circumstances, was a covenant running with the land, or the way appurtenant thereto?

The third question above listed is not properly before this Court. It was not discussed before the Master nor passed upon by him. It was not raised by exceptions before Judge Oxner and was not passed upon by him. It has been raised for the first time in this Court, and is, therefore, not properly before us. Graniteville Mfg. Co. v. Renew, 113 S.C. 171, 102 S.E. 18.

When this cause was heard by the Master and also by the Circuit Judge, the question presented to each of them for determination was whether the alley in question was created as an easement appurtenant to the land or one in gross. The plaintiff contended that it was an easement appurtenant to the land and the defendant contended that it was one in gross.

The Master after a careful analysis of the facts and the decisions of this Court held that it was an easement in gross. The learned Circuit Judge also in a well considered decree held that it was an easement in gross. And it is apparent that this same question is the principal one for this Court to determine, for once this question is determined, the other questions become academic.

The line of demarcation between an easement appurtenant to land and one in gross has been clearly set forth by many decisions of this Court.

In Whaley v. Stevens, 21 S.C. 221, 224, Mr. Justice McIver speaking for the Court said: "A right of way may be in gross, or it may be appendant or appurtenant to land and the distinctions between the two kinds of rights are very marked and...