Springob v. Farrar , 334 S.C. 585 ( 1999 )

HOWELL, Chief Judge:

V. Les Springob appeals from a decision by a special referee that he did not have an easement over property owned by Michael L. Farrar and Yvonne Farrar. We affirm.

I.

Dr. Narayan R. Shenoy owned a lot (Lot 14) in the Spring • Valley subdivision in Columbia, and his wife owned the adjoining lot (Lot 13). The Shenoys’ home was located on Lot 13, the lot titled solely in Mrs. Shenoy’s name, while Lot 14, Dr. Shenoy’s lot, was vacant. The Shenoys built a well on Lot 14 and attached it to an irrigation system serving Lot 13.

In May 1986, Dr. Shenoy sold Lot 14 to L.G.B., Inc. The deed from Dr. Shenoy (the L.G.B. Deed) “reserved to the Grantor an easement from Lot Thirteen (13), Block H, onto the hereinabove described premises for ingress and egress to and for the maintenance and operation of a well situated on said Lot Fourteen (14) and Lot Thirteen (13), Block H.”

L.G.B., Inc. immediately sold Lot 14 to Irwin Marmorstein, doing business as IRBO Developers. The deed to Marmorstein provided for an easement reserved to Dr. Shenoy for ingress and egress to and for the maintenance and operation of the well on Lot 14.

Marmorstein built a house on Lot 14 and sold the property to the Farrars in August 1988. The deed from Marmorstein to the Farrars stated that “[t]his conveyance is subject to all easements, rights, reservations, restrictions, and covenants of record affecting said property.” The Farrars’ closing attorney informed them of the easement to the well located on their property.

In May 1989, Mrs. Shenoy sold Lot 13 to Kenneth Perry, and South Carolina Federal Savings Bank obtained title to the property through foreclosure in 1992. During the period when the house on Lot 13 was vacant, Farrar disconnected the well on his property from the Lot 13 irrigation system and connected it to his own system serving Lot 14.

Springob purchased Lot 13 in May 1993. The deeds in his chain of title did not mention the easement on Lot 14, and he was unaware of it when he purchased Lot 13. While Springob was drilling a well for a new irrigation system, a neighbor told him about the well on Lot 14. Springob questioned Farrar about the well and easement and obtained a copy of the L.G.B. Deed. Springob demanded use of the well, and Farrar refused.

Springob brought this action for trespass and intentional interference with and obstruction of an easement. Springob sought an injunction prohibiting the Farrars from further interfering with the easement. The Farrars answered, contending the easement was personal to Dr. Shenoy and therefore was an easement in gross.

The special referee concluded that the L.G.B. Deed created in favor of Dr. Shenoy an easement in gross that was not alienable or transferable. The referee therefore determined that Springob had no easement over the Farrars’ property.¹

II.

On appeal, Springob contends the referee erred by concluding the easement reserved in the L.G.B. Deed was an easement in gross rather than an appurtenant easement. We disagree.

In Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997), our Supreme Court explained the differences between easements in gross and appurtenant easements:

The character of an express easement is determined by the nature of the right and the intention of the parties creating it. An easement in gross is a mere personal privilege to use the land of another; the privilege is incapable of transfer. In contrast, an appurtenant easement inheres in the land, concerns the premises, has one terminus on the land of the party claiming it, and is essentially necessary to the enjoyment thereof. It also passes with the dominant estate upon conveyance. Unless an easement has all the elements necessary to be an appurtenant easement, it will be characterized as a mere easement in gross.

Id. at 325-26, 487 S.E.2d at 191 (citations omitted) (emphasis added).

In this ease, L.G.B. Deed reserved an easement in favor of “the Grantor.” The grantor of the L.G.B. Deed was Dr. Shenoy, the sole owner of Lot 14. Because the easement was reserved for Dr. Shenoy only, and Dr. Shenoy did not own Lot 13, the lot benefitted by the easement, the requirement that an appurtenant easement have “one terminus on the land of the party claiming it” is not satisfied.²

Accordingly, under Tupper, the easement cannot be considered appurtenant and must be construed as an easement in gross. The special referee, therefore, properly ruled that the easement reserved in the L.G.B. Deed was an easement in gross incapable of transfer. Id.; see also Sandy Island Corp. v. Ragsdale, 246 S.C. 414, 420, 143 S.E.2d 803, 806 (1965) (“An easement, or right-of-way, in gross is a mere personal privilege to the owner of the land and incapable of transfer by him, and is not, therefore assignable or inheritable.”).³

Springob argues, however, that Dr. Shenoy intended “to burden Lot 14 with an appurtenant easement granting his wife, as the owner of Lot 13, the right to draw water from the well in Lot 14 in perpetuity.” (Emphasis added.). In support of this argument, Springob first points to the contract of sale for Lot 14 executed by Dr. Shenoy several months before the execution of the L.G.B. Deed, which refers to a “perpetual. easement for the continued operation [and] maintenance of water well” to be reserved by the seller. Springob contends that the “Corrective Title to Real Estate” and “Easement Agreement” executed by the Shenoys and L.G.B., Inc. also establish Shenoy’s intent to reserve an appurtenant easement in favor of his wife as owner of Lot 13.⁴

The documents relied upon by Springob do not change our conclusion that the easement is an easement in gross.

In construing a deed, the intention of the grantor must be ascertained and effectuated unless that intention contravenes some well-settled rule of law or public policy. 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. The intention of the grant- or must be found within the four comers of the deed.

Gardner v. Mozingo, 293 S.C. 23, 25, 358 S.E.2d 390, 391-92 (1987) (emphásis added) (citations omitted).

In this case, the reservation in the L.G.B. Deed clearly and unambiguously reserved an easement to Dr. Shenoy only — it is only by looking to extrinsic evidence that any question arises as to whether Dr. Shenoy intended to reserve an easement in favor of his wife instead of himself. Because the deed is unambiguous, any attempt to determine Dr. Shenoy’s intent when reserving the easement must be limited to the deed itself, and it is improper to use extrinsic evidence to contradict the plain language of the deed. See Gardner, 293 S.C. at 25, 358 S.E.2d at 392 (“The construction of a clear and unambiguous deed is a question of law for the court. The terms of an unambiguous deed may not be varied or contradicted by evidence drawn from sources other than the deed itself.”) (citations omitted); Scott v. Scott, 216 S.C. 280, 293, 57 S.E.2d 470, 476 (1950) (“[0]ne of the most valuable safeguards thrown around a deed is that parol evidence is not admissible to vary or contradict the terms of a written contract, and this applies in all its strictness to actions involving deeds.”); Walters v. Summey Bldg. Systems, Inc., 311 S.C. 507, 509, 429 S.E.2d 854, 856 (Ct.App.1993) (“The construction of an unambiguous deed is a question of law, not fact. The terms of such a deed may not be varied or contradicted by evidence drawn from sources other than the deed itself.”), cert, denied (February 17, 1994).⁵

III.

Springob argues alternatively that the easement reserved in the L.G.B. Deed is an easement in gross of a commercial character and therefore was transferred to him when he purchased the property. See, e.g., Sandy Island, 246 S.C. at 422, 143 S.E.2d at 807 (“An easement in gross is of a commercial character when the use authorized by it results primarily in economic benefit rather than personal satisfaction. Easements in gross, if of a commercial character, are alienable.”). Because this theory was not raised in the pleadings or argued to the special referee, it is not preserved for appeal. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal____”).

IV.

. Springob also argues on appeal that the special referee erred in ruling that a reservation in a deed cannot create an easement in favor of a third party. We find no error.

In his order, the special referee stated that “South Carolina follows the Common Law rule that a reservation in a deed cannot create an easement in favor of a third party.” See, e.g., Estate of Thomson v. Wade, 69 N.Y.2d 570, 516 N.Y.S.2d 614, 509 N.E.2d 309, 310 (1987) (“The long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so-called ‘stranger to the deed,’ does not create a valid interest in favor of that third party.”); Pitman v. Sweeney, 34 Wash.App. 321, 661 P.2d 153, 154 (1983) (“The majority rule is that a reservation or exception in a deed cannot create rights in strangers to the instrument.”). We need not, however, determine whether the rule is followed in South Carolina.⁶

As the special referee noted, the easement in this case was not reserved to a third party but was reserved to Dr. Shenoy, the grantor. It is only if we accepted Springob’s prior argument that the L.G.B. Deed should be construed as reserving an easement in favor of Mrs. Shenoy that the question of the viability in South Carolina of the stranger-to-deed rule would be relevant. As discussed above, because the L.G.B. Deed is clear and unambiguous, we rejected Springob’s proposed construction of the deed. The stranger-to-deed rule, therefore, is simply inapplicable to this case, and the question of the rule’s viability is purely academic. See Sangamo Weston, Inc. v. National Surety Corp., 307 S.C. 143, 414 S.E.2d 127, 130 (1992) (“This court will not issue advisory opinions and cannot alter precedent based on questions presented in the abstract.”).

V.

Finally, Springob contends that Dr. Shenoy had “a sufficient equitable interest in Lot 13 to establish an appurtenant easement on Lot 14 for the benefit of Lot 13.” Because this argument was never made to the special referee, we cannot consider it on appeal. E.g., Taylor v. Medenica, 324 S.C. 200, 213, 479 S.E.2d 35, 42 (1996) (“Dr. Medenica did not raise the applicability of this federal law at trial. Therefore, his argument is not preserved for appeal.”).

Accordingly, for the foregoing reasons, the decision of the special referee is hereby

AFFIRMED.

STILWELL, J., concurs. ANDERSON, J., dissents in a separate opinion.

1 . The Farrars also asserted a counterclaim based on damage to trees caused by water discharged from Springob’s pool. The special referee ruled against the Farrars on the counterclaim, and they do not challenge that ruling on appeal.

2 . The easement was specifically reserved to Dr. Shenoy only. Thus, only Dr. Shenoy and those taking title through him can be viewed as the "party claiming" the easement.

3 . Because the elements of an appurtenant easement are not present, any presumption that may exist in favor of appurtenant easements over easements in gross is simply not applicable. See Smith v. Commissioners of Public Works, 312 S.C. 460, 467, 441 S.E.2d 331, 336 (Ct.App.1994) ("[E]asements in gross are not favored by the courts, and an easement will never be presumed as personal when it may fairly be construed as appurtenant to some other estate.”) (citing 25 Am.Jur.2d Easements & Licenses § 13 (1966)).

4 . The "Corrective Title to Real Estate” and "Easement Agreement” were executed in November 1995 and recorded in December 1995, well after this dispute arose. These documents specifically characterize the easement as an appurtenant easement granted to Mrs. Shenoy and her heirs and assigns for the benefit of Lot 13.

5 . Because we conclude the contract of sale, corrective deed, and easement agreement cannot be considered when interpreting the easement reserved in L.G.B. Deed, we need not resolve the question of whether these documents were before the special referee or were only marked for identification.

6 . A number of states have -rejected this rule. See, e.g., Simpson v. Kistler Inv. Co., 713 P.2d 751, 756 (Wyo.1986) ("Joining the enlightened approach that the intent should control and archaic and inappropriate feudalistic principles should no longer apply, this court determines that the [stranger-to-deed] rule is repealed.”); Aszmus v. Nelson, 743 P.2d 377, 380 (Alaska 1987) (concluding that stranger-to-deed rule conflicts with "general view that a deed should be construed to effect the intent of the grantor”); Willard v. First Church of Christ, Scientist, Pacifica, 7 Cal.3d 473, 102 Cal.Rptr. 739, 498 P.2d 987, 989 (1972) (rejecting stranger-to-deed rule as an "inapposite feudal shackle”); Townsend v. Cable, 378 S.W.2d 806, 808 (Ky.1964) (rejecting stranger-to-deed rule as "archaic” and "inconsistent with the basic principle followed in the construction of deeds, which is to determine the intention of the grantor as gathered from the four corners of the instrument.”).