Lawson v. Strahan

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

Cole L. Lawson III and Cole L. Lawson IV, Appellants,

v.

Weldon T. Strahan a/k/a Weldon Travis Strahan a/k/a W.
Travis Strahan, Individually and in his capacity as
Personal Representative of the Estate of Ronald J.
Strahan; Wilson Lee Mixon; Vivan M. McAlhaney, as
Trustee of the McAlhaney Family Trust, Utd 9/20/2004;
Vivian Mixon McAlhaney; David A. Shipes; Tony W.
Alter Shipes; Helen S. Kinard a/k/a Helen Shipes Kinard;
Wanda Shipes Casey a/k/a Wanda S. Casey a/k/a Wanda
D. Casey; and Jacob F. Malphrus, Defendants

Of whom David A. Shipes; Tony W. Alter Shipes; Helen
S. Kinard a/k/a Helen Shipes Kinard; Wanda Shipes
Casey a/k/a Wanda S. Casey a/k/a Wanda D. Casey; and
Jacob F. Malphrus are the Respondents.

Appellate Case No. 2011-194266

Appeal From Jasper County
Luke N. Brown Jr., Special Referee

Unpublished Opinion No. 2013-UP-170
Heard April 9, 2013 – Filed April 24, 2013

AFFIRMED
Desa Ballard and Harvey M. Watson III, both of Ballard
Watson Weissenstein, of West Columbia, for Appellants.

Demetri K. Koutrakos and Mary Dameron Milliken, both
of Callison Tighe & Robinson, L.L.C., of Columbia; and
Kevin Angus Brown, of Anderson & Brown, L.L.C., of
Hampton, for Respondents.

PER CURIAM: This appeal arises out of an easement dispute. On appeal,
Appellants Cole L. Lawson III, and Cole L. Lawson IV, argue: (1) the trial court
erred by failing to recognize the Lawsons' express easement by reservation; (2) the
Lawsons are entitled to an easement by necessity if not granted an easement
appurtenant; and (3) the case should be remanded for further proceedings and
reconsideration regarding the asserted affirmative and equitable defenses after the
proper legal standard is applied to the easement. We affirm pursuant to Rule
220(b), SCACR, and the following authorities: Jones v. Lott, 387 S.C. 339, 346,
692 S.E.2d 900, 903 (2010) ("Under the two issue rule, where a decision is based
on more than one ground, the appellate court will affirm unless the appellant
appeals all grounds because the unappealed ground will become the law of the
case."); Rule 208(b)(1)(D), SCACR ("The brief shall be divided into as many parts
as there are issues to be argued. At the head of each part, the particular issue to be
addressed shall be set forth in distinctive type, followed by discussion and citations
of authority. A party may also include a separate statement of facts relevant to the
issues presented for review, with reference to the record on appeal, which may
include contested matters and summarize the party's contentions."); McClurg v.
Deaton, 395 S.C. 85, 87 n.2, 716 S.E.2d 887, 888 n.2 (2011) (noting "an issue
cannot be raised for the first time in a reply brief"). Alternatively, we affirm on the
merits. See Crystal Pines Homeowners Ass'n, Inc. v. Phillips, 394 S.C. 527, 537,
716 S.E.2d 682, 687 (Ct. App. 2011) ("The determination of the existence of an
easement is a question of fact in a law action and subject to an any evidence
standard of review when tried by a judge without a jury." (internal quotation marks
omitted)); Gardner v. Mozingo, 293 S.C. 23, 25, 358 S.E.2d 390, 391-92 (1987)
("In determining the grantor's intent, the deed must be construed as a whole and
effect given to every part if it can be done consistently with the law."); id. at 25,
358 S.E.2d at 392 ("The intention of the grantor must be found within the four
corners of the deed."); Clemson Univ. v. First Provident Corp., 260 S.C. 640, 652,
197 S.E.2d 914, 920 (1973) (noting the necessity element of an easement by
necessity must exist at the time of the severance and a grantee claiming the right to
an easement may not "so change the uses of land as to convert a way of
convenience into a way of necessity"); Shia v. Pendergrass, 222 S.C. 342, 351, 72
S.E.2d 699, 703 (1952) (noting the absence of a terminus on property is fatal to a
claim of an appurtenant easement); Forest Land Co. v. Black, 216 S.C. 255, 262,
57 S.E.2d 420, 424 (1950) (noting that a deed restriction will not be "enlarged or
extended by construction or implication beyond the clear meaning of its terms").

AFFIRMED.

SHORT, THOMAS, and PIEPER, JJ., concur.