Carr Farms, Inc. v. Watson ( 2024 )

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
Carr Farms, Inc. and Titan Farms, LLC, Appellants,
v.
Susannah Smith Watson, Carson M. Watson, and Jane
Watson, Respondents.
Appellate Case No. 2021-000659
Appeal From Saluda County
Alison Renee Lee, Circuit Court Judge
Unpublished Opinion No. 2024-UP-086
Heard December 5, 2023 – Filed March 20, 2024
AFFIRMED
Jonathan McKey Milling, of Milling Law Firm, LLC, of
Columbia, for Appellants.
Daniel L. Draisen, of The Injury Law Firm, PC, of
Anderson, for Respondents.
PER CURIAM: Carr Farms, Inc. and Titan Farms, LLC (collectively,
Appellants) appeal the circuit court's order granting Susannah Smith Watson
partial summary judgment, arguing the circuit court erred in holding Watson's
easement (the Smith Deed Easement)1 for a pond (the Pond) located partially on
Appellants' properties was appurtenant and that Titan Farms did not have the right
to use the portion of the Pond on its property. We affirm.
1. We hold the circuit court did not err in finding the Smith Deed Easement met
each of the necessary elements for an appurtenant easement. See Tupper v.
Dorchester County, 326 S.C. 318, 325, 487 S.E.2d 187, 191 (1997) ("The character
of an express easement is determined by the nature of the right and the intention of
the parties creating it."); id. (explaining that while "[a]n easement in gross is a
mere personal privilege to use the land of another" and "is incapable of transfer,"
an appurtenant easement "passes with the dominant estate upon conveyance."); id.("[A]n 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."); id. ("Unless an easement has all the elements necessary to be
an appurtenant easement, it will be characterized as a mere easement in gross.");
Smith v. Comm'rs of Pub. Works of City of Charleston, 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."); Proctor v. Steedley, 398 S.C. 561,
571, 730 S.E.2d 357, 362 (Ct. App. 2012) ("The distinction between an
appurtenant easement and an easement in gross involves the extent of a grant of an
easement, as opposed to the creation of an easement.").
First, the Smith Deed Easement met the requirements that it "inhere in the land"
and "concern the premises." See Inhere, Black's Law Dictionary (11th ed. 2019)
(defining "[i]nhere" as "[t]o exist as a permanent, inseparable, or essential attribute
or quality of a thing; to be intrinsic to something"). The right to the impoundment
of water on the servient estate was inseparable from the land on the servient estate.
The land was essential to the dominant estate's use of the servient estate for the
creation of the Pond as granted in the Smith Deed. Appellants cite no authority to
support their contention the Smith Deed Easement did not inhere to the land
because at the time of the grant, no water was impounded on the servient estate
1
Mattie Lee Bonnette was the predecessor-in-title for Watson and Titan Farms. In
a deed dated October 1, 1960 (the Smith Deed), Bonnette conveyed to "F. Broadus
Smith, his heirs and assigns" five acres in Saluda County, which were bounded on
the east and south by other lands Bonnette owned, and an easement for the creation
of the Pond. Although Carson M. Watson and June Watson are named as
defendants, only Susannah Watson currently owns the property conveyed in the
Smith Deed.
that Smith, the original grantee, could have used exclusively. See McCall v. IKON,
380 S.C. 649, 659-60, 670 S.E.2d 695, 701 (Ct. App. 2008) (stating "an appealed
order comes to the appellate court with a presumption of correctness and the
burden is on appellant to demonstrate reversible error"). Furthermore, the legal
creation of an easement by express grant can precede the physical creation and use
of the easement. See Binkley v. Burry, 352 S.C. 286, 297, 573 S.E.2d 838, 844 (Ct.
App. 2002) ("An easement by its very nature involves the right to encroach upon
another's property."); Bundy v. Shirley, 412 S.C. 292, 304, 772 S.E.2d 163, 169
(2015) ("An easement is a right given to a person to use the land of another for a
specific purpose."); Binkley v. Rabon Creek Watershed Conservation Dist. of
Fountain Inn, 348 S.C. 58, 69, 558 S.E.2d 902, 908 (Ct. App. 2001) (holding the
"clear and unambiguous language" of a deed granting the defendant flowage rights
over the dam created an easement that extended to the top of the dam, even though
the impounded waters did not extend that far until a flood almost twenty years after
the creation of the easement).
The Smith Deed Easement met the requirement of having a terminus on the land of
the dominant estate. See Williams v. Tamsberg, 425 S.C. 249, 263, 821 S.E.2d
494, 502 (Ct. App. 2018) (stating that in order for a terminus on the land of the
party claiming an easement appurtenant to exist, "the dominant estate must have
access to the purported easement"); id. ("[A] court could find an easement
appurtenant if the purported easement . . . at least touches the dominant estate.").
Here, the Smith Deed Easement clearly touched the dominant estate as the waters
of the Pond touched both the servient and dominant estates. Finally, the Smith
Deed Easement was essentially necessary to the enjoyment of the dominant estate
because it was necessary to grant the dominant estate the right for the impounded
waters to encroach on the servient estate, and therefore necessary for the dominant
estate to enjoy the Pond, which was built in accordance with the intentions of the
Smith Deed grantor and grantee.
2. We disagree with Appellants' argument that the Smith Deed Easement did not
evidence a clear intent for Watson to have exclusive use of the Pond. First, the
grant of the Smith Deed Easement fell under the Smith Deed's granting clause,
which was to Smith and his heirs and assigns. The deed's easement provision
distinguished between "F. Broadus Smith," who was to construct the dam, and the
"grantee," which included Smith and his heirs and assigns, who was to have
"exclusive use and control" of the Pond. Thus, considering the plain language of
the deed, we hold the parties intended for the grant of the exclusive use of the
easement to be to the grantee, which was Smith, and his heirs and assigns. See
Proctor, 398 S.C. at 574, 730 S.E.2d at 364 ("Generally, the phrase 'heirs and
assigns' will not convert an easement in gross to an appurtenant easement when the
elements of an appurtenant easement are not otherwise present."); id. ("However,
such language is relevant to the determination of the grantor's intent."); Rabon
Creek, 348 S.C. at 71, 558 S.E.2d at 909 (stating that in order to determine the
parties' intent, the "grant of an easement is to be construed in accordance with the
rules applied to deeds and other written instruments" (quoting 28A C.J.S.
Easements § 57, at 235 (1996))); Windham v. Riddle, 381 S.C. 192, 201, 672
S.E.2d 578, 583 (2009) (stating "the deed must be construed as a whole and effect
given to every part if it can be done consistently with the law" (quoting Gardner v.
Mozingo, 293 S.C. 23, 25, 358 S.E.2d 390, 391-92 (1987))); id. ("The intention of
the grantor must be found within the four corners of the deed." (quoting Gardner,
293 S.C. at 25, 358 S.E.2d at 392)). Thus, we hold Watson, as Smith's heir and
assign, now has the right to the exclusive use and control of the Pond.
Second, we hold the lack of specificity of the amount of the servient estate
authorized for the use of the construction of the dam or to be covered with the
impounded water did not make the easement invalid. See Smith, 312 S.C. at 469,
441 S.E.2d at 337 ("[A]n 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.").
Third, we disagree with Appellants' argument that because the Smith Deed
Easement was absent from their chain of title, they should not be bound by the
easement's purported grant of "exclusive use and control" of the Pond. See Spence
v. Spence, 368 S.C. 106, 119, 628 S.E.2d 869, 876 (2006) (holding constructive
notice is "notice imputed to a person whose knowledge of facts is sufficient to put
him on inquiry; if these facts were pursued with due diligence, they would lead to
other undisclosed facts" (quoting Strother v. Lexington Cnty. Recreation Comm'n,
332 S.C. 54, 64 n.6, 504 S.E.2d 117, 122 n.6 (1998))); Rabon Creek, 348 S.C. at
71, 558 S.E.2d at 909 ("Notice of a deed is notice of its whole contents . . . and it is
also notice of whatever matters one would have learned by any inquiry which the
recitals of the instrument made it one's duty to pursue." (emphasis in original)
(quoting 66 C.J.S. Notice § 19 (1998))); Ten Woodruff Oaks, LLC v. Point Dev.,
LLC, 385 S.C. 174, 184, 683 S.E.2d 510, 515 (Ct. App. 2009) ("[C]onstructive
notice is not necessarily confined to the public record . . . ."); 66 Am. Jur. 2d
Records and Recording Laws § 78 (2021) ("[T]here is authority that a purchaser
cannot ignore deeds issued by a common grantor, or fail to search for them, on the
theory that the deeds are outside the servient estate's chain of title, since to hold
otherwise would undermine the broad constructive notice afforded recorded
conveyances under the recording statutes."); id. ("If a deed or a contract for the
conveyance of one parcel of land with a covenant or easement affecting another
parcel of land owned by the same grantor is duly recorded, the record is
constructive notice to a subsequent purchaser of the other parcel."); S.C. Dep't of
Transp. v. Horry County, 391 S.C. 76, 84, 705 S.E.2d 21, 25 (2011) (holding
servient estate holders had constructive notice of an easement their
predecessor-in-title granted the State even though their 1985 deeds did not mention
the easement, explaining, "[i]n this case, the deed creating the easement was
properly recorded; thus, Appellants had constructive notice of the easement,
regardless of their legally unfounded argument that finding the deed in question
would be like 'finding a needle in a haystack.'"). Here, the Pond was apparent from
a visual inspection of the property and Titan Farms's deed referenced a plat
prepared for its grantor showing the Pond was partially on the property conveyed.
See Murrells Inlet Corp. v. Ward, 378 S.C. 225, 232, 662 S.E.2d 452, 455 (Ct.
App. 2008) ("[W]here a deed describes land as is shown as a certain plat, such
becomes a part of the deed." (alteration in original) (quoting Carolina Land Co. v.
Bland, 265 S.C. 98, 105, 217 S.E.2d 16, 19 (1975))). Thus, Titan Farms had notice
of the existence of the Pond and was on inquiry notice about the legal ownership of
the Pond, which spanned three separate properties. Furthermore, if Titan Farms
had searched for deeds from its common predecessor-in-title with Watson, it would
have discovered the properly recorded Smith Deed. Accordingly, Appellants were
not entitled to claim they were not bound by the easement.
3. We disagree with Appellants' argument that the granting of the exclusive
easement is contrary to the established law of South Carolina. See Morris v.
Townsend, 253 S.C. 628, 635, 172 S.E.2d 819, 822-23 (1970) (holding the
plaintiffs did not have the right to use waters impounded on their land, for which
the defendant had an easement, because the plaintiffs did not acquire an interest in
defendant's water); id. at 635, 172 S.E.2d at 823 ("The gist of the creation of the
easement in this case is in order that the defendant may have and operate his own
lake."); id. at 636, 172 S.E.2d at 823 ("While it is true that plaintiffs may use their
land for any purpose not inconsistent with the rights acquired by the defendant,
such does not include the right to use the lake and its waters which came into being
solely by reason of the fact that the defendant, at his own expense, built the dam.
Except for the dam, which defendant may maintain or remove, water would not
approach plaintiffs' land and no riparian rights are here involved."); White's Mill
Colony Inc. v. Williams, 363 S.C. 117, 130, 134-35, 609 S.E.2d 811, 818, 820 (Ct.
App. 2005) (holding "owners of all or part of a pond or lake bed have the right to
exclude others from accessing or using the surface waters above their property" but
noting the owner of the land under a lake is free to make other arrangements with
the abutting property owners). Here, even if Appellants would have had an interest
in the use of the Pond's waters by virtue of owning the land beneath the waters, the
grantor and grantee of the Smith Deed made an agreement giving the grantee, who
undertook the investment to construct the Pond, exclusive use of its waters to
protect his investment. We hold the circuit court's finding that Watson had
exclusive use and control of the Pond is consistent with both Morris and White's
Mills Colony. See 363 S.C. at 131, 363 S.E.2d at 818 ("Because the construction
of a man-made water body often involves the expenditure of substantial sums of
money and the expense is not, as a rule, divided proportionately among the various
abutting owners, the individual making the expenditure is justified in expecting
that superior privileges will inure to him in return for his investment." (quoting
Anderson v. Bell, 433 So. 2d 1202, 1205 (Fla. 1983))).
AFFIRMED.
WILLIAMS, C.J., and HEWITT and VERDIN, JJ., concur.