Williams v. Tamsberg

821 S.E.2d 494, 425 S.C. 249
CourtCourt of Appeals of South Carolina
DecidedSeptember 19, 2018
DocketAppellate Case No. 2016-000886; Opinion No. 5596
StatusPublished
Cited by2 cases

This text of 821 S.E.2d 494 (Williams v. Tamsberg) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Tamsberg, 821 S.E.2d 494, 425 S.C. 249 (S.C. Ct. App. 2018).

Opinion

WILLIAMS, J.:

**254In this civil matter, James Bradley Williams and Robert Blair Kline, Jr. (collectively, Appellants) appeal the master-in-equity's order denying their motion for summary judgment and granting Merle Tamsberg's motion for summary judgment. On appeal, Appellants argue the master erred in (1) finding the easement encumbering Appellants' property, 45 Legare Street, was an easement appurtenant rather than an easement in gross; (2) finding the 1971 restrictive covenant, given by Appellants' predecessor-in-title, was valid and runs with the land; and (3) finding Appellants' claims were barred by the statute of limitations. We affirm.1

FACTS/PROCEDURAL HISTORY

This appeal arises from a dispute regarding a recorded easement in Charleston, South Carolina. The easement is an eight-foot-wide alley or driveway, which encumbers the servient parcel located at 45 Legare Street (45 Legare) currently owned by Appellants. The easement benefits the adjacent, dominant parcel at 47 Legare Street (47 Legare) currently owned by Tamsberg. W.G. Hinson previously owned both parcels as one property, but in 1911, Hinson divided his property into two adjacent lots, a southern parcel, 45 Legare, and a northern parcel, 47 Legare.2 In an April 15, 1911 deed (the 1911 Deed), Hinson conveyed 47 Legare to his niece, Julia Dill, while reserving 45 Legare for himself. The 1911 Deed included the following clause:

Also, the full and free use and enjoyment as an easement to run with the land of the right of ingress, egress, and regress, in, over, through[,] and upon the alley-way eight (8) feet wide as a drive way or carriage way, situate, lying[,] and being immediately to the south of [47 Legare], and being the southern boundary of said [47 Legare].

The easement described in the 1911 Deed was located entirely on 45 Legare and ran from Legare Street to the **255western lot line that bordered the Saint Peter's graveyard wall. Subsequently, title to both 45 Legare and 47 Legare passed to different owners.3 On April 5, 1971, the Bank-having title to 47 Legare at the time as executor of Julia's estate-and Black-owner of 45 Legare at the time-executed and recorded simultaneous documents, in which the Bank conveyed the western, rear portion of the easement to Black by deed and in which Black executed a restrictive covenant (the Covenant) that sought to reaffirm the existence of the original easement, "to the extent as agreed upon by the parties,[4 ] by execution of *498the within covenant." In their respective documents, both Black and the Bank provided verbatim descriptions of the original easement from the 1911 Deed and referenced a 1971 Cummings & McCrady, Inc. plat of 47 Legare (Cummings & McCrady plat), which showed both the area of 45 Legare encumbered by the easement to 47 Legare and the western, rear portion of the easement sold to Black. The Covenant also provided the following:

Black, the owner in fee simple of [45 Legare], hereby covenants and agrees that the strip of land located on the west side of Legare Street in the City of Charleston, State of South Carolina, being eight feet in width and 101.25 feet in depth and being more particularly shown on [the Cummings & McCrady plat], as enclosed within the letters, B, E, F, H, B, the line F, H being the terminus thereof, shall be **256subject to the following restrictions, limitations[,] and rights as to the future use of said strip of land:
(1) That no building or other structure shall be erected thereon.
(2) That no obstruction shall be placed or permitted to remain thereon so as to prevent the right of ingress, egress, and regress, in, over, or through, and upon the said strip of land as a driveway or carriageway to the owner of [47 Legare].
The aforesaid covenants, restrictions[,] and limitations shall be covenants running with the land and shall be binding on Margarette deSaussure Black, her heirs, assigns[,] and successors in title.

Tamsberg's deed to 47 Legare-and the deed to her predecessor-in-title-included the following provision with the conveyance of the property on 47 Legare:

Together an easement, to run with the land, over an adjoining strip of land shown on [the Cummings & McCrady] plat as enclosed within the letters B, E, F, H, and B, for ingress, egress, and regress, in, over, or through, and upon the said strip of land as a driveway or carriageway for the owner of [47 Legare] described above, as conveyed by W.G. Hinson less a portion shown on [the Cummings & McCrady] plat within the letters F, G, C, H[,] and F, .... The strip covered by said easement is also covered by restrictive covenants ....

Appellants' deed to 45 Legare, however, did not contain the same provision, but did include a clause subjecting 45 Legare's title to all easements and restrictions of record.

Appellants acknowledged they were aware of the easement at or near the time they obtained title to 45 Legare in 2004. However, Appellants considered the easement abandoned because, in 2004, Tamsberg finished replacing a chain-link fence with a masonry wall that ran alongside the border of 45 Legare in the area where the easement previously extended. The wall contained a three-to-four foot gate, which provided access to 47 Legare from the easement on 45 Legare and was **257located near the site of a former garage that previously existed in the rear of 47 Legare.5

Appellants indicated the easement "was never used as a carriage way" or used by Tamsberg, herself. Instead, Appellants stated "the only time [the easement] was ever used" was to allow Tamsberg's landscapers to walk down the driveway to use the gate.6 Tamsberg, however, claimed she-as well as family members, guests, "tradesmen, and other permittees"-continuously used the easement since she purchased 47 Legare in 1988 because it provided the only access to the rear of 47 Legare for large-scale appliances, equipment, and machinery; and because it provided access to the only suitable area for off-street parking for her property. Tamsberg also claimed she had driven a golf cart down the easement and parked in the rear of 47 Legare.

Appellants claimed that in 2014, ten years after they purchased 45 Legare, Tamsberg approached and informed them that their fence-erected in the easement-"[was] coming down" and she would be using their *499"driveway as easement to the back."7 Appellants filed a complaint in Charleston County in September 2014, and subsequently amended their complaint in September 2015.

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Cite This Page — Counsel Stack

Bluebook (online)
821 S.E.2d 494, 425 S.C. 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-tamsberg-scctapp-2018.