McKnight v. Lowder

THIS
OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Mavis L.
McKnight, Respondent,

v.

Irby Ned Myron Lowder, Appellant.

Appeal From Florence County

 Haigh Porter, Special Referee by
Designation

of the Presiding Circuit Court Judge

Unpublished Opinion No.  2010-UP-416

Submitted September 1, 2010 – Filed
September 20, 2010 

REVERSED AND REMANDED

Stephen J. Wukela, of Florence, for Appellant.

E. LeRoy Nettles, Sr. and Marian D. Nettles, both of Lake City,
for Respondent.

PER
CURIAM:  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 finding regarding the existence of an
easement has not been appealed and is therefore the law of the case.  See Dreher v. Dreher, 370 S.C. 75, 78 n.1, 634 S.E.2d 646, 647 n.1 (2006). 
Therefore, the only factual finding on appeal is the scope or extent of the
easement.  Because the extent
or scope of an easement is an equity action, this court is free to resolve questions of fact in accordance with its own view of
the preponderance of the evidence.  Fesmire, 385 S.C. at 303, 683 S.E.2d
at 807.

Upon thorough review of the Special Referee's factual findings, we
conclude the grant of a twenty-five foot wide easement was not supported by the
preponderance of the evidence.  Specifically, the Special Referee erred in not taking into account the interests of
the servient estate when determining what easement width was both reasonably
necessary and convenient.  Although McKnight's
husband testified he wanted a twenty-five-foot wide easement, he also admitted
a seventeen-foot easement was sufficient for an ambulance or truck to reach the
couple's mobile home.  In addition, the creation of a twenty-five-foot wide
easement would require the McKnights to cut down trees which have been present
on the servient estate since 1985. 

Accordingly,
we reverse and remand for the Special Referee to consider the interests of both
the dominant and servient estate owners in determining what easement width is
both reasonably necessary and convenient.  See Hill, 204 S.C. at
96, 28 S.E.2d at 549.

REVERSED
AND REMANDED.

SHORT, THOMAS, and LOCKEMY, JJ., concur.

[1] We decide this
case without oral argument pursuant to Rule 215, SCACR.