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2009-UP-096 - Fowler v. Fowler

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Kimber R. Fowler a/k/a Kimberly R. Fowler, Appellant,

v.

Claudius Eugene Fowler, Respondent.


Appeal From Horry County
 J. Stanton Cross, Jr., Master-in-Equity


Unpublished Opinion No. 2009-UP-096
Submitted November 1, 2008 – Filed February 23, 2009


REVERSED


Kimber Fowler, of Loris, for Appellant.

Claudus Eugene Fowler, of Loris, for Respondent.

PER CURIAM: Kimber Fowler (Appellant) planted Bradford pear trees along an easement Claudus E. Fowler (Respondent) claimed across Appellant’s land.  When Respondent cut limbs from those trees, Appellant filed an action for trespass and property damage.  She now appeals from the master-in-equity’s order finding Respondent had an easement across Appellant’s land.  We reverse.[1]

FACTS

I.  Land Conveyances

On September 29, 1981, Respondent acquired 3.72 acres of land through a civil suit for partition of his father’s estate.  The estate’s real property was surveyed and platted on November 9, 1981.  No easement appeared either in Respondent’s title or on that plat. 

On June 17, 1999, Respondent’s land was surveyed and platted in preparation for conveyances Respondent intended to make to his children.  The plat prepared at this time (the Inman Plat) reflects an “existing soil drive” within a twenty-five-foot private easement across the north side of the parcel.  On August 6, 1999, Respondent and his wife conveyed the easternmost 0.99 acres of their land to their son and Appellant, their daughter-in-law.  Respondent and his wife reserved a life estate in the conveyed land.  On June 28, 2000, they released this right and conveyed their remaining interest in the land to their son and Appellant.  Although the title references the Inman Plat, neither the title nor the release document indicates an easement.   

Respondent’s son and Appellant divorced in January 2005.  On April 20, 2005, Appellant received title to the 0.99 acres solely in her name pursuant to the divorce decree.  The title document executed by Respondent’s son references the Inman Plat but does not indicate an easement.    

On April 18, 2006, the land was surveyed again at Respondent’s request.  The plat prepared following this survey reflects a “private access easement” identified as “Dolly Lane” across the north side of Appellant’s land and references the prior plat.  Furthermore, this plat appears to indicate a proposed driveway and cul-de-sac extending from Dolly Lane across half of Respondent’s property.  Both the 1981 and 2006 plats show a county road either touching or defining a portion of the western boundary of Respondent’s property.[2]    

II.  Background and Procedural History

In August 2000, Appellant planted eight Bradford pear trees approximately six feet from the existing soil drive shown on the Inman Plat.  On April 5, 2005, Respondent and his grandson destroyed one of those trees.  Appellant filed criminal charges against them but later withdrew those charges in an effort to “make peace with the family.”  On February 8, 2007, Respondent and his grandson used a chainsaw to cut branches from the remaining Bradford pear trees, leaving marks across the trunks of several of those trees.  Subsequently, Appellant posted “no trespassing” signs on and near the trees.  When Respondent removed them, Appellant again filed criminal charges against him and a civil suit for trespass and malicious damage to her property. 

Appellant’s civil suit was referred to the master, who ruled in favor of Respondent and found Respondent had “by dedication a private easement . . . for travel purposes of ingress and egress” across Appellant’s land.  This appeal followed. 

LAW/ANALYSIS

I.  Easement by Dedication

Appellant asserts the master erred in finding Respondent possessed an easement by dedication across her land.  We agree.

“The determination of the existence of an easement is a question of fact in a law action and subject to an any evidence standard of review when tried by a judge without a jury.”  Hardy v. Aiken, 369 S.C. 160, 165, 631 S.E.2d 539, 541 (2006). 

The master erred in concluding Respondent possessed an easement by dedication.  South Carolina law presumes a buyer of a lot in subdivided property has a dedicated property right in any easements or roads shown on the plat.  Inlet Harbour v. S.C. Dep’t of Parks, Recreation & Tourism, 377 S.C. 86, 92, 659 S.E.2d 151, 154 (2008); see also Murrells Inlet Corp. v. Ward, 378 S.C. 225, 233, 662 S.E.2d 452, 455-56 (Ct. App. 2008).  While an easement by dedication may be described in a plat prepared prior to conveyance of subdivided property, no easement legally exists until the seller conveys ownership of a part of that property to a buyer.  Inlet Harbour, 377 S.C. at 92, 659 S.E.2d at 154.  To create this implied easement, the deed must reference the plat.  Id.  Once created, the easement benefits the buyer.  Id.; see also Murrells Inlet Corp., 378 S.C. at 233, 662 S.E.2d at 455-56; McAllister v. Smiley, 301 S.C. 10, 12, 389 S.E.2d 857, 859 (1990).[3] 

Here, Respondent prepared a plat describing the way he intended to subdivide his property into three lots, two of which were to go to his children.  He ultimately conveyed ownership of only one lot and now claims an easement by dedication across it.  However, because an easement by dedication benefits the buyer, this presumption is unavailable to Respondent, the seller.  Consequently, Respondent does not possess an easement by dedication across Appellant’s land. 

II.  Other Issues

Appellant additionally asserts the master erred in violating her due process rights and in failing to rule on her motions for summary judgment.  Due to our disposition of Appellant’s first issue, we need not address the remaining issues on appeal. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

CONCLUSION

As to the issue of Respondent’s easement, we find Respondent does not have an easement by dedication across Appellant’s land.  Therefore, we reverse the master’s order on this issue. 

Accordingly, the master’s order is

REVERSED.

HEARN, C.J., KONDUROS, J., and GOOLSBY, A.J., concur. 


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] The western end of Respondent’s property does not appear on the Inman Plat. 

[3] Our supreme court explored the policies underlying implied public and private easements by dedication in Cason v. Gibson, 217 S.C. 500, 61 S.E.2d 58 (1950).