Westside Meshekoff v. SCDOT

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

Westside Meshekoff Family Limited Partnership,
Appellant,

v.

South Carolina Department of Transportation; DW
Properties, LLC; Danwood LLC; Robert W. Denton; and
Alpine of SC, Inc.; Defendants,

Of Whom The South Carolina Department of
Transportation is the Respondent.

Appellate Case No. 2011-201527

Appeal From Lexington County
R. Knox McMahon, Circuit Court Judge

Unpublished Opinion No. 2013-UP-310
Heard June 13, 2013 – Filed July 3, 2013

AFFIRMED

Charles Harry McDonald, of Robinson, McFadden, &
Moore, PC, of Columbia, and Edwin Russell Jeter, Jr., of
Jeter & Williams, PA, of Columbia, for Appellant.
Patrick John Frawley, of Davis, Frawley, Anderson,
McCauley, Ayer, Fisher, & Smith, LLC, of Lexington,
for Respondent.

PER CURIAM: Westside Meshekoff Family Limited Partnership (Westside)
appeals the trial court's denial of its request for equitable apportionment of repair
and maintenance costs of a drainage easement. We affirm.

We find, when construing the encroachment permit application and the permit
together, as well as the surrounding circumstances, the parties intended for the
indemnity provision to apply to the drainage system as well as the driveways. See
Hayes v. Tompkins, 287 S.C. 289, 294, 337 S.E.2d 888, 891 (Ct. App. 1985)
(applying equitable apportionment "in the absence of an agreement"); Freeman v.
Sorchych, 245 P.3d 927, 933 (Ariz. Ct. App. 2011) (noting the duty of the owner of
the easement to maintain, repair, and improve an easement is determined by the
terms of the conveyance itself); K & A Acquisition Grp., LLC v. Island Pointe,
LLC, 383 S.C. 563, 581, 682 S.E.2d 252, 262 (2009) ("A grant of an easement is to
be construed in accordance with the rules applied to deeds and other written
instruments."); id. ("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. ("When intention is not expressed accurately in the deed evidence
aliunde may be admitted to supply or explain it."). In the permit application, the
developer of the shopping center requested permission from the South Carolina
Department of Transportation (SCDOT) to connect the catch basin into the
drainage system. Prior to the development, the catch basin drained into a stream.
See Brisbane v. O'Neall, 34 S.C.L. (3 Strob.) 348, 353 (1849) (noting that when a
landowner built an artificial vent diverting the water from draining on its natural
course, the landowner was bound to keep up the vent); see also L. S. Tellier,
Annotation, Rights and Duties of Owners Inter Se with Respect to Upkeep and
Repair of Water Easement, 169 A.L.R. 1147, 1152 (1947) (noting that when a
servient owner has substituted a drainage ditch for the channel through which the
water previously passed over his land, that servient owner must keep the drainage
ditch open and free from obstruction); Miller v. Perkins, 216 N.W. 27, 28 (Iowa
1927) (holding when defendant built an artificial ditch to care for the water that
had previously flowed naturally from the plaintiff's land, the defendant had a duty
to keep this artificial ditch constructed by him open and free from obstruction so
long as he chose to handle the water in this way). The record contains no evidence
the developer sought or received contributions from the SCDOT for construction
of the drainage system. In addition, the evidence demonstrates if the developer had
used reinforced concrete pipe as stated in its application, future maintenance costs
to the pipes would not have been needed. The record provides no evidence the
parties intended for the SCDOT to contribute to future repair and replacement
costs for the drainage system. Accordingly, we find no error in the trial court's
denial of Westside's request for equitable apportionment.1

AFFIRMED.

HUFF, WILLIAMS, and KONDUROS, JJ. concur.

1
We do not reach Westside's remaining issues. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an
appellate court need not address remaining issues when disposition of prior issue is
dispositive).