E. Creation of Easements

• Library: Practical Guide to Commercial Real Estate in South Carolina (SCBar) (2012 Ed.)

E. Creation of Easements

At common law, it was said that there were nine methods recognized for the creation of an easement: by grant, estoppel, way of necessity, implication, dedication, prescription, ancient window doctrine, reservation or condemnation.²⁷ Modern cases, however, treat dedication and condemnation as creating public interests, and the cases dealing with creation of easements generally fall into three major categories: those created by grant or reservation, created by implication²⁸ and created by prescription. Enough has been said hereinabove about easements created by grant and reservation. Easements by implication can be divided into two major categories: those arising from the recordation of plats, and easements by necessity. In 2006, our Supreme Court recognized an "easement implied by prior use," which will be discussed in greater detail later in this chapter.²⁹

In considering the cases involving easements by implication, it is necessary to remember that all implied easements accompany other grants; the law implies the particular easement -- whether by necessity or otherwise -- as being essential to the enjoyment of the thing expressly granted. Clearly, there can be no implication that a person granted an easement over property which he does not own.³⁰

1. Easements Implied from Plats

Safety Building & Loan Co. v. Lyles, 131 S.C. 542, 128 S.E. 724 (1925), is one of our earliest implied easement cases involving plats. In that case, there was an attempt to establish an easement based upon the conveyance of the lot by reference to a plat which showed a "circle" as one of the lot boundaries. In fact, the circle was never opened as a street and was, as the Court said "a mere representation on paper." In finding that the proposed dominant tenement had sufficient frontage on other streets to afford its owner "the freest ingress and egress," the circle was found to be a "mere boundary," and therefore, an easement in gross which was not transferrable.³¹

In the case of Outlaw v. Moise³² the Court stated that where land is divided into lots according to a plat thereof, dedication of the street is complete, as between the developer and purchasers, even though the streets are not accepted by public authorities. The rights of lot purchasers are not referred to in this opinion as easements, but a purchaser was said to have "a special property interest" in an adjoining street which would entitle him to maintain a suit for its preservation.

Later, in Corbin v. Cherokee Realty Co.³³ the Court said that when a developer subdivides and plats his property into lots and streets and conveys lots with reference to the plat, he thereby grants the purchasers every easement, privilege and advantage which the plat represents as belonging to them.

Probably the leading case in South Carolina, however, is Blue Ridge Realty Co. v. Williamson.³⁴ In this case, the developer subdivided its property into lots and streets and recorded the plat on the public record. Thereafter, the developer deeded the streets to Greenville County. Greenville County deeded a portion of a turnaround to the adjoining lot owners, who enclosed it with a wall. The Supreme Court held that lot purchasers in a subdivision have an easement in all the streets shown on the plat, independent of their rights therein as members of the public, which will survive the abandonment of such streets by the public entity which holds title to them. The Court said that purchasers of lots with reference to the recorded plat acquired every easement, privilege and advantage shown upon the plat, including the right to use all the streets, near or remote, shown on the plat by which the lots were purchased.

Our Supreme Court declined to apply Blue Ridge Realty Company, supra, to a more recent case³⁵ involving road access to oceanfront property in Murrells Inlet. At the time when the developer purchased the area in Murrells Inlet known as Inlet Harbor, it was known that the United States Army Corps of Engineers would require some property for the Murrells Inlet Navigability Project and that the South Carolina Department of Parks, Recreation and Tourism was responsible for acquiring the land for that project. The Department acquired 4.2 acres in 1976 by a deed which referred to a plat showing the future site of Inlet Harbor Drive. The deed included an express easement for the use of Inlet Harbor Drive to access the 4.2-acre tract "for the sole purpose of constructing and maintaining the north sand dike and jetty for the Murrells Inlet, South Carolina, navigation project." Later, in 1977, the Department acquired an additional 3.56 acres of property adjacent to the 4.2-acre tract, the deed to which did not contain any easement over or reference to Inlet Harbor Drive. The 3.56-acre parcel did not adjoin Inlet Harbor Drive but was accessed by the governmental agencies through the 4.2-acre tract. When it was determined that the 3.56-acre tract would not be necessary for the project, the Department offered the property for sale for residential purposes.

Relying on Blue Ridge Realty Company, supra, the lower court held that the Department had an easement for ingress and egress over Inlet Harbor Drive, by virtue of the depiction on the subdivision plat of the road and the 3.56-acre tract. The lower court, however, also held that there was a genuine issue of material fact as to whether the scope of the Department's easement was restricted to purposes related to the Murrells Inlet Navigability Project. After trial, the lower court held that the right to use the roadway was so limited, and that the road could not be used by the Department or its successors in title to access residential tracts from the 3.56-acre parcel.

On appeal before the Supreme Court, Chief Justice Toal, speaking for the majority of the Court, put forth several guidelines concerning the existence and scope of implied easements:

a. . An implied easement arises in connection with a conveyance of property, on the theory that one intends to convey whatever is necessary for the use and enjoyment of the property expressly conveyed.
b. Its purpose is to give effect to the intentions of the parties to the transaction and, since it goes beyond the written instrument, implied easements are not favored.
c. The rule applied in Blue Ridge is "nothing more than a presumption" that a plat showing streets and lots expresses the intention of the grantor to allow grantees the use of the streets shown on the plat.

Finding that the 3.56-acre parcel did not adjoin the proposed street and was not subdivided as residential property, the Court affirmed the trial court's conclusion that the parties did not intend for the land to be accessed by Inlet Harbor Drive for purposes other than the Murrells Inlet Navigability Project.

In Epps v. Freeman, 261 S.C. 375, 200 S.E.2d 235 (1973), purchasers of lots near the ocean, which were depicted on a plat showing an open area between their lots and the ocean, were found to have a "special property interest" in the area between their lot lines and the ocean. By this case, the Supreme Court expanded the implied street easement concept to include other open areas shown on a plat.³⁶

Generally speaking, if a grantor conveys a tract of land by reference to a plat which shows a road as its boundary, the grantee will be found to have an easement in that roadway.³⁷

2. Easements by Necessity

Although easements by necessity have been recognized by our Courts from the earliest times,³⁸ the first definitive explanation of the law came in 1927 in the case of Brasington v. Williams, 143 S.C. 223, 141 S.E. 375 (1927).

In Brasington, the Court considered whether the owner of a plantation bounded on three sides by the Wateree River had...