McAllister v. Smiley Ex Rel. Estate of Smiley , 301 S.C. 10 ( 1990 )

Chandler, Justice:

This case involves a dispute between adjoining landowners over use of a road dividing their property. The jury returned a verdict for Respondent Smiley (Smiley), owner of the land on which the road is located. Appellants Billy McAllister and McAllister Motors, Inc. (McAllister) appeal the denial of a motion for directed verdict, based upon the ground that, as a matter of law, an easement exists.

We reverse.

FACTS

The road in question appears on a plat made July 10,1969¹ for Smiley’s predecessors in title, J. C. and Addie Fulmore (Fulmores). As shown by the plat the property is divided into two tracts. Tract No. 2 was conveyed by the Fulmores to South Carolina Farm Bureau Services Corporation (Farm Bureau), McAllister’s predecessor in title.

The deed to Farm Bureau described the tract as bounded “on the South by land of J. C. and Addie Fulmore, a road being the dividing line on this boundary----” The deed also contained the provision that:

Said tract of land is shown and designated as Tract No. 2 on a Plat of lands of Vivian W. Edwards and J. C. and Addie Fulmore, prepared by J. P. Edwards, R. L. L., on July 10, 1969, which plat, recorded in Plat Book 17 at page 42, is by reference incorporated herein as a part of this description.

ISSUE

The sole issue necessary to our decision is whether, as a matter "of law, McAllister has a private easement over the road on Smiley’s property.

DISCUSSION

In support of his right to an easement, McAllister relies upon the following rule of law:

Where a conveyance of land describes the parcel as bounded by a street designated in the conveyance, or refers to a map on which spaces for streets, parks, or other common uses are shown, but the conveyance says nothing about the creation of an easement or a dedication to public use, the conveyee of the land acquires an easement with respect to the street or the areas shown on the map.

3 Powell, The Law of Real Property Para. 409 (1987) [footnotes omitted]. This rule was recognized and applied in Cason v. Gibson, 217 S. C. 500, 61 S. E. (2d) 58 (1950), as well as numerous other decisions of this Court and the Court of Appeals.² These cases hold that such an easement inures to the benefit of the grantee and his successors in title. The existence of the easement will be implied by law, unless it appears that the grantor specifically intended otherwise. See also, 28 C. J. S. Easements, §§39 and 40 (1941).

Here, McAllister’s tract is described in the Fulmore deed as bounded on the south by the road in question. Additionally, the deed refers to the plat on which the road is indicated. There is no evidence whatever that the Fulmores intended to negate the creation of the easement claimed by McAllister.

McAllister was entitled to a private easement over the road. Accordingly, the motion for directed verdict should have been granted.

Reversed.

Gregory, C. J., and Harwell and Finney, JJ., concur. Toal, J., dissents in separate opinion.

1 The plat, Plaintiff’s Exhibit 6 at trial, is reproduced as an appendix to this opinion.

2 Immanuel Baptist Church v. Barnes, 274 S. C. 125 , 264 S. E. (2d) 142 (1980); Carolina Land Co. v. Bland, 265 S. C. 98, 217 S. E. (2d) 16 (1975); Briarcliffe Acres v. Briarcliffe Realty Co., 262 S. C. 599, 206 S. E. (2d) 886 (1974); Epps v. Freeman, 261 S. C. 375, 200 S. E. (2d) 235 (1973); Blue Ridge Realty Co. v. Williamson, 247 S. C. 112, 145 S. E. (2d) 922 (1965); Corbin v. Cherokee Realty Co., 229 S. C. 16, 91 S. E. (2d) 542 (1956); Newton v. Batson, 223 S. C. 545, 77 S. E. (2d) 212 (1953); Outlaw v. Moise, 222 S. C. 24, 71 S. E. (2d) 509 (1952); Billings v. McDaniel, 217 S. C. 261, 60 S. E. (2d) 592 (1950); Walker v. Guignard, 293 S. C. 247, 359 S. E. (2d) 528 (Ct. App. 1987).