Williams v. Tamsberg
Williams v. Tamsberg
Opinion of the Court
**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.
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.
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.
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.
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.
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."
ISSUES ON APPEAL
I. Did the master err in finding the easement in question was an easement appurtenant and not an easement in gross?
II. Did the master err in finding the restrictive covenant given by Appellants' predecessor-in-title in 1971 was valid and runs with the land?
III. Did the master err in finding Appellants' claims barred by the statute of limitations?
STANDARD OF REVIEW
"An appellate court reviews a grant of summary judgment under the same standard applied by the [circuit] court pursuant to Rule 56, SCRCP." Lanham v. Blue Cross & Blue Shield of S.C., Inc. ,
Determining whether an easement exists is a question of fact in a law action, and when tried by a judge without a jury, is subject to an "any evidence" standard of review.
**259Tupper v. Dorchester Cty. ,
*500LAW/ANALYSIS
Appellants argue the master erred in finding an appurtenant easement to 47 Legare and not an easement in gross to Julia. We disagree.
"An easement is a right given to a person to use the land of another for a specific purpose." Bundy v. Shirley ,
**260K & A Acquisition Grp., LLC v. Island Pointe, LLC ,
In Tupper v. Dorchester County , our supreme court distinguished between an easement in gross and an easement appurtenant:
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. Whe[n] language in a plat reflecting an easement is capable of more than one construction, that construction which least restricts the property will be adopted.
In the present case, Appellants argue the master erred because two of the essential elements of an appurtenant easement-terminus on the land of the party claiming an easement and the easement is essentially necessary to the enjoyment of the dominant parcel-were missing. We address each argument in turn.
a. Terminus
Appellants assert the easement in the 1911 Deed cannot be construed as an easement appurtenant and must be an easement in gross because the easement did not have a terminus on 47 Legare, was entirely on 45 Legare, and ran from Legare Street to the westernmost property line. Moreover, Appellants contend the reaffirmed easement in the 1971 Covenant, which shortened the length of the easement, did not transform the easement from an easement in gross to an easement appurtenant. Specifically, Appellants argue the reaffirmed easement still did not create a terminus on 47 Legare because the newly **261created terminus in the deed-identified as lines F-H-was entirely on 45 Legare. We disagree.
The absence of a terminus on the dominant estate is fatal to a claim of an appurtenant easement. See Shia v. Pendergrass ,
In granting Tamsberg's summary judgment motion, the master relied on Whaley v. Stevens ,
In Whaley , our supreme court found that a terminus could not be on one's land if the easement in question did not touch the property of the one claiming it.
However, in Steele , our supreme court found that the appellant did not have an easement appurtenant in an alleyway because the alleyway did not have a terminus on the appellant's land, even though the alleyway was the northern boundary of appellant's property, when the alleyway began on a public right of way and ended on the land of the respondent.
While we recognize that South Carolina requires an easement appurtenant to have a terminus on the property of the party claiming the easement, no South Carolina case explicitly defines the terminus requirements. However, we find that determining the existence of a terminus is a fact-specific inquiry dependent upon the facts of each individual case. See Pendergrass ,
Although Appellants rely on Steele to demonstrate that an easement does not terminate on the purported dominant estate simply by touching the property, we find Steele is distinguishable from the instant case. Here, the easement did not extend beyond the western property line of 45 Legare or 47 Legare, whereas the alleyway in Steele extended beyond the appellant's property and ended at the respondent's westernmost property line. Additionally, Appellants assert that similar to Steele , a grantor cannot change the nature of the easement simply by including the language "to run with the land." While that premise is well established in South Carolina, we do not find it applicable here because the language in the 1911 Deed demonstrates Hinson's intent to create an easement appurtenant. Specifically, Hinson described the property at 47 Legare and included "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 alleyway eight (8) feet wide" lying "immediately to the south of [47 Legare] and being the southern boundary of said [47 Legare]." See Tupper ,
Hinson clearly intended that the driveway be an easement appurtenant, and furthermore, the evidence demonstrates that the elements of an easement appurtenant are met. See Tupper ,
b. Necessity
Appellants next contend the master erred in finding an easement appurtenant because the easement is not essentially necessary to the enjoyment of 47 Legare. We disagree.
"The principle is well settled that a right of way appurtenant cannot be granted, unless it is essentially necessary to the enjoyment of the land to which it appertains." Kershaw v. Burns ,
**266The master found Appellants presented no evidence demonstrating issues of material fact regarding whether the easement was necessary at the time of either the 1911 Deed or the 1971 Covenant. The master also found the easement was the only reasonable method for Tamsberg to bring large-scale equipment and tools to the rear of 47 Legare because 47 Legare's front gate was too narrow to permit large equipment or tools. Additionally, the master stated the easement provided the only adequate method of off-street parking for 47 Legare. Appellants contend, however, that while the easement may have been necessary to access a garage that existed in both 1911 and 1971, the easement is no longer essentially necessary to the enjoyment of 47 Legare because the garage no longer exists, Tamsberg can access the rear of 47 Legare from the front gate, Tamsberg's gate at the rear of 47 Legare is too narrow to allow passage of any vehicle, and the easement is no longer used as a driveway but is used primarily by workmen as a footpath.
Upon our review of the record, we find the easement was necessary at the time of its creation in 1911 and also at the time of its reaffirmation in 1971 because the parties to the 1911 Deed and the 1971 Covenant intended the easement provide access to a then-existing garage. See K & A Acquisition Grp., LLC ,
We find the master properly granted Tamsberg's motion for summary judgment *504because Appellants did not present any evidence that the easement was not necessary at the time of **267its creation in 1911 or reaffirmation in 1971. Further, no issue of material fact is created when examining the easement's necessity to the present enjoyment of 47 Legare. Tamsberg's affidavit states that she has continuously used the easement since purchasing the property, she has driven a golf cart down the easement to the rear of 47 Legare, she uses the easement for off-street parking, and she needs the easement to bring large equipment and tools to the rear of 47 Legare. Even when viewing the evidence in favor of Appellants' statements that Tamsberg does not personally use the easement and it was only used by her landscapers, no issue of material fact exists to dispute the necessity of the easement to bring large-scale equipment and tools to the rear of 47 Legare. Appellants contend the front gate allows access to the rear, but they offer no evidence to refute the necessity of the easement to allow large equipment into the rear of 47 Legare. Thus, we find the master did not err in finding the easement necessary for 47 Legare's use, and we affirm.
In conclusion, we find the evidence reflects the original parties to the 1911 Deed intended to create an easement appurtenant, and the elements for an easement appurtenant existed at the time of its creation. Accordingly, we find the master did not err in granting Tamsberg's motion for summary judgment, and we affirm the master's order.
CONCLUSION
Based on the foregoing analysis, the master's order granting Tamsberg's motion for summary judgment is
AFFIRMED.
LOCKEMY, C.J., and KONDUROS, J., concur.
We decide this case without oral argument pursuant to Rule 215, SCACR.
Hinson's combined property was known as 47 Legare Street before the division. Both 45 and 47 Legare are bounded on the east by Legare Street and on the west by a wall bordering the Saint Peter's Church graveyard.
For clarity, we provide the complete chain of title for each property from the 1911 division to the current owners. We start with 45 Legare. Hinson retained 45 Legare until his death in 1917, and in 1919, his estate conveyed 45 Legare to his three nieces-Julia, Pauline Dill, and Frances Dill. In 1920, Julia and Frances conveyed their interest in 45 Legare to Pauline, who, in 1936, sold 45 Legare to Henry deSaussure. In 1955, Henry bequeathed 45 Legare to Margarette deSaussure Black. Black retained title to 45 Legare until her death in 1997, at which point her estate devised the property to her sons. In 2004, Black's sons conveyed 45 Legare to Appellants.
As for 47 Legare, Julia retained title to 47 Legare until her death in 1970, when the South Carolina National Bank of Charleston (the Bank) assumed title as executor of Julia's estate. In 1971, the Bank sold 47 Legare to Nancy Linton, who then sold 47 Legare to Tamsberg and her now deceased husband in 1988.
The record is unclear whether "parties" refers to the original parties to the 1911 Deed or Black and the Bank.
The gate still existed at the time of the hearing. The site of the former garage was a residential space as of 2004.
At his deposition, Appellant Williams testified Tamsberg asked for, and was given, Appellants' permission for her landscapers to walk down the easement.
The record is not clear as to whether the fence is the same as the wall Tamsberg erected in 2004 or if it is a different fence altogether.
Appellants assert that Tamsberg's restrictive covenant argument is an alternative argument if the easement in the 1911 Deed was an easement in gross. Additionally, Appellants' underlying cause of action relies on the non-existence of an appurtenant easement, which is an action at law. Therefore, because our finding of a valid appurtenant easement is dispositive, we need not address Appellant's remaining issues on appeal. See Futch v. McAllister Towing of Georgetown, Inc. ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.