Windham v. Riddle

635 S.E.2d 558, 370 S.C. 415, 2006 S.C. App. LEXIS 156
CourtCourt of Appeals of South Carolina
DecidedAugust 7, 2006
Docket4145
StatusPublished
Cited by7 cases

This text of 635 S.E.2d 558 (Windham v. Riddle) 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
Windham v. Riddle, 635 S.E.2d 558, 370 S.C. 415, 2006 S.C. App. LEXIS 156 (S.C. Ct. App. 2006).

Opinions

HUFF, J.:

In this property dispute, Dorothy Windham appeals the master-in-equity’s finding that Donald and Jennifer Riddle (the Riddles) had an appurtenant easement for irrigation purposes over property owned by Windham. We reverse and remand.

FACTS

The Riddles and Windham are adjacent property owners in Orangeburg County. Both parties purchased their property from a common grantor, Danny Covington. Covington purchased the combined property in 1991 from Edisto Farm Credit. The previous owner, Marvin Davis, had used the property as a dairy farm. In 1992, Covington had the property surveyed and divided into two tracts, 1-A and 1-B.

On November 15, 1992, Covington and Windham entered into a contract of sale for tract 1-B (the Windham tract). Windham had ten years to complete the purchase of the tract but the contract allowed for early pre-payment. In addition to the terms of the sale, the contract provided in part:

Seller to have a 50’ easement of ingress and egress for the purpose of operating and maintaining an irrigation system. [S]aid easement to be centered over existing underground piping. Seller agrees not to pump pond lower than 4’ below full stage. Existing overhead utilities easement to remain [417]*417as is. When possible seller to run system at times convenient to buyer. Buyer not restricting use more than 36 hours at a given time. Seller to have all rights to use of waters in pond....

Windham and her family used her tract as a family retreat, and visited approximately every other weekend. Covington continued to farm on tract 1-A.

In June of 1993, Covington leased part of tract 1-A (the Riddle tract) to the Riddles, who began to operate their dairy farm on the tract. In the spring of 1994, Covington helped the Riddles install an aboveground irrigation system over the existing underground piping on the Windham tract. The pumping station for the irrigation system is located on the pond and takes water to the Riddle tract. Access to the pump is controlled by a locked gate on the Windham tract.

In 1997, Covington conveyed the Riddle tract to the Riddles. The deed provided:

Said conveyance is subject to a 30-foot access easement, a 50-foot irrigation easement, a 25-foot access easement along existing woods[,] road and a canal, all as set forth and shown on the above-referenced plat.

On December 16, 1998, Covington deeded the tract to Windham. The deed stated, in part:

Said conveyance is subject to a (fifty) 50 foot easement of ingress and egress for the purpose of operating and maintaining an irrigation system and an agreement as to the use of said irrigation easement and irrigation system as set forth in the certain Contract of Sale by and between Danny Covington a/k/a/ J. Danny Covington, as Seller and Dorothy Windham, as Buyer dated November 15, 1992 and recorded in the office of the Register of Deeds for Orangeburg County on December 28,1991....

Initially, Windham allowed the Riddles to use the water in the pond in the manner described in the contract between Windham and Covington. However, Windham believed that the Riddles exceeded the use of the easement as contemplated in the original agreement between Covington and Windham. Accordingly, Windham brought suit seeking a declaratory judgment and injunctive relief asserting the easement created [418]*418in their contract of sale and deed was an easement in gross and the Riddles had no right to this easement.1 The Riddles answered, contending Windham was estopped from denying the validity of the easement. Further, they asserted the easement is appurtenant to the Riddle tract.

After a trial, the master-in-equity found that the contract of sale between Windham and Covington, along with the Wind-ham and Riddle deeds, created various easements for irrigation purposes. Additionally, the master concluded the easements were appurtenant and, therefore, passed to the Riddles when they purchased the Riddle tract. The master also found no action for trespass could be maintained because as owners of the dominant estate, the Riddles did not exceed the limits of the easement. Accordingly, the master dismissed Windham’s complaint. The master subsequently denied Windham’s motion to alter or amend the judgment. This appeal followed.

STANDARD OF REVIEW

The determination of the extent of a grant of an easement is an action in equity. Tupper v. Dorchester County, 326 S.C. 318, 323, 487 S.E.2d 187, 190 (1997). Thus, this court may take its own view of the evidence. Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).

LAW/ANALYSIS

Windham argues the master erred by concluding the easement was appurtenant rather than in gross. We agree.

Whether an express easement is appurtenant or in gross is determined by the nature of the right and the intention of the parties creating the easement. Tupper, 326 S.C. at 325, 487 S.E.2d at 191 (1997). In Tupper, the court explained the distinction between an easement in gross and an easement appurtenant:

[419]*419An 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, 487 S.E.2d at 191 (citations omitted).

In the present case, the contract of sale between Covington and Windham was an installment land contract. Typically, as in the contract here, the seller retains legal title until the purchase price has been fully paid, and the purchaser is entitled to immediate possession. See Lewis v. Premium Inv. Corp., 351 S.C. 167, 170-73, 568 S.E.2d 361, 363-64 (2002) (stating the seller retains legal title until the purchase price is fully paid and the vendee in possession of the land is the owner of an equitable interest in the property).

An easement cannot exist where both the purported servient and dominant estates are owned by the exact same person. Haselden v. Schein, 167 S.C. 534, 539, 166 S.E. 634, 635 (1932). As Covington retained legal title to the Windham tract and also held title to the Riddle tract, no easement could have been created by the Windham contract of sale in 1992.2

In 1998, Covington deeded the Windham tract to her. The Windham deed referred to the language in the contract of sale, which reserved an easement in the favor of “the Seller” only. By the time of the transfer of the deed and creation of the easement, Covington no longer owned the Riddle tract, the land benefited by the easement.

We find the current case similar to Springob v. Farrar, 334 S.C. 585, 514 S.E.2d 135

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Cite This Page — Counsel Stack

Bluebook (online)
635 S.E.2d 558, 370 S.C. 415, 2006 S.C. App. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/windham-v-riddle-scctapp-2006.