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Property II
University of South Carolina School of Law
Wilcox, Robert M.

 
I.         Easements – a property right to a piece a land that enables the owner of the easement to use the property for a special purpose. For the benefit of the dominant estate and the detriment of the servient estate.
A.      Creation of Easements
1.        Types:
a.        Express Easement – defined by the intent of the parties that created it
1)       Does the deed expressly create the easement; two types:
a)       Express Reservation – grantor reserves an easement and retains the dominant parcel
b)       Express Grant – grantor becomes servient owner (i.e. grants a plot and an easement to his remaining plot)
b.       Implied Easements – The Intent to create an easement is what you’re trying to prove.
1)       By Necessity
a)       Elements:
i.         Unity of Title (Common Ownership)
ii.        Necessity when severance occurred!!! The necessity must be more than mere convenience.
b)       Other characteristics
i.         Endures only as long as necessity occurs
ii.        Intent is crucial. Defense would be lack of intent
2)       By Prior Use
a)       Elements:
i.         Unity of Title
ii.        Necessity (some courts have made a distinction that interprets against the grantor)
(a)     Grant – reasonable necessity
(b)     Reservation – strict necessity
iii.      Continuous use (Continuity) – must have started before the severance of property
iv.      Apparent – either constructive or actual notice required.
v.       Permanent
3)       By Plat
c.        Prescriptive – presumption of either hostility or consent?
1)       Elements:
a)       Continuous
b)       Hostile
c)       Open and Notorious
d)       Exclusive – all you’re really looking for is that you “claim” by your own acts.
2.        Cases
a.        Millbrook Hunt v. Smith (1998)
1)       Rule: An agreement is an easement if the parties sufficiently expressed their intent to reserve a permanent right to the land.
2)       Analysis:
a)       The court concluded the intent to create an easement (rather than license) from the fact that the interest in the land was limited to 75 years.
b)       The fact that the agreement provides to the grantor “absolute right to develop his land” and the right to redirect Hunt’s trails does not render the grant a revocable license.
b.       Ricenbaw v. Kraus (1953)
1)       Rule: A mere license, whether by deed or by parol, is revocable at pleasure, except where the license is executed or, where by reason of expenditures by the licensee on the strength of the license, it would be inequitable to permit the licensor to revoke the license.
2)       Analysis:
a)       A license, however long continued, cannot ripen into a prescriptive right.
b)       Court implied an easement because of the installation of the tile drain
c.        Berg v. Ting (1995)
1)       Rule:
a)       For an easement to conform to the SOF, the grant must contain a sufficient description of the land or reference an existing instrument that contains such a description.
b)       Unless the consideration given for an easement reveals the character or terms of a contract, the consideration alone is insufficient evidence of part performance to take the grant of easement out of the SOF.
2)       Analysis:
a)       Because the grant of easement reference plat plans that were ultimately changed, the description of the easement was inadequate.
b)       Restatement (Third) of Property: Servitudes § 2.9: the SOF is inapplicable if “the beneficiary of the servitude, in justifiable reliance on the existence of the servitude, has so changed position that injustice can be avoided only by giving effect to the parties’ intent to create a servitude.”
d.       Campbell v. Great Miami (1984)
1)       Rule: An easement is created by implication only where the servient owner has actual knowledge of its existence.
2)       Analysis: Even though all the elements of an implied easement were met, the lack of knowledge on the part of the servient owner, precludes the recognition of such an easement.
e.        Hurlocker v. Medina (1994)
1)       Rule: Unity of title is sufficient to support an easement by necessity if the grantor owns both the dominant and servient parcels at the time of severance. Thus, it is not necessary that the dominant and servient estate by carved from a single, undivided parcel.
f.         Hester v. Sawyers(1937)
1)       Rule: An easement by prescription is created if one makes an open, uninterrupted, peaceable, notorious, and adverse use of another land with their knowledge for a period of time equivalent to that required by the statute of limitations with reference to adverse possession.
g.       Shanks v. Floom (1955) – Hostility can be presumed from use on other persons property
1)       Next door neighbors decide to build a common driveway on exactly half of each other’s property. One guy later decides to stop the other from using his half
2)       Rule: to establish the hostile use required for a prescriptive easement, it is not necessary to show a dispute or ill will, rather it is sufficient if the use is inconsistent with the rights of the title owner and not subordinate or subservient to those rights.
h.       Boyd v. Bellsouth (SC 2004) –
1)       Bellsouth tried to cut off access to a road that was on their property, but was used by Boyd.
2)       Evidence was sufficient to establish Easement by estoppel because the Bellsouth agent told Boyd that they would have access to the road.
i.         McAllister v. Smiley (SC 1990) –
1)       McCallister was granted land which was described as bounded by a public roadway. 
2)       Court held that when land is described as bounded by a public place (road, public area, park), you have an implied easement to that public place
j.         Pittman v. Lowther (SC 2003) –
1)       Owner of lot A had been using a driveway across lot B for a long time. Owner of lot B tries at various times to block the use of the owner of Lot A
2)       Court held that a successful attempt to block a road by the servient estate holder, even for a short time, is sufficient to break continuity
k.        Nelums v. Cousins (SC 1991) – “Claim” of right is not defeated just because your use is not exclusive
1)       Nelums had been using a road on Cousins property(along with a bunch of other people) to access his property. Cousins built a gate
2)       Court held that his use was exclusive of the rights of the other people using the road, so Nelums was able to establish an easement by prescription
l.         Loftis v. SCE&G (SC 2004)
1)       Loftis tried to keep SCE&G from maintaining power lines on his property.
2)       Prior owners allowed SCE&G to use the property for decades, therefore a prescriptive easement was established.
B.       Transfer of Easements
1.        Appurtenant
a.        Shia v. Pendergrass (SC 1952)
1)       Rule: The absence of a terminus on the property of the alleged dominant parcel is fatal to the claim of an appurtenant easement.
2)       Analysis:
a)       Elements of appurtenant easements:
i.         Inhere in the land
ii.        Concern the premises
iii.      Have one terminus on the land of the party claiming it
iv.      Be essentially necessary to the enjoyment of the land
2.        In Gross – are not conveyable
a.        Exception – if they are for commercial use, then conveyance is allowed
b.       “One stock” rule –
c.        Exclusive – nonexclusive standard
C.       Scope of Easements (i.e. what uses are permitted?)
1.        Divisibility
a.        Restatement 3rd § 5.9 – An easement in gross “may be divided unless contrary to the terms of the servitude, or unless the division unreasonably increases the burden on the servient estate.”
2.        Reasonableness test
a.        The extent of the necessity determines the scope of an easement if:
1)       The language of the grant is unclear or absent OR
2)       If the easement has been implied through necessity or continuous use
b.       The use that creates a prescriptive easement defines the scope of the easement that is granted
c.        Using an easement to serve something other than the dominant parcel is a per se overburdenment of the easement, and can be enjoined by the servient parcel owner
3.        Rule of Reason:
4.        Cases
a.        Brown v. Voss (1986)
1)       Rule: If an easement is appurtenant to a particular parcel, any extension thereof to other parcels is a misuse of the easement; however, where there is no increased burden on the servient estate, a court may permit the overuse to continue
2)       Reasoning:
a)       Plaintiff had a parcel that was served by an express easement across the defendant’s lot. Plaintiff bought a second parcel that was attached to the first parcel, but otherwise landlocked. Plaintiff began building a house on the border of the two parcels
b)       Court held that by using the easement to access the second parcel it was a per se overburdening of the easement.
c)       However, the court refused to grant an injunction to the defendant so long as the plaintiff continues to use their parcels solely for residential purposes
d)       Wilcox notes that this rule exists to prevent people from misusing an easement to build a wal-mart on a landlocked parcel
e)       Note that subdividing the dominant parcel and continuing to use the easement is NOT a per-se misuse of the easement
b.       Cameron v. Barton (1954)
1)       Plaintiff had purchased a parcel of land, where the deed expressly stated that the land was subject to a prior easement. The language of the original easement grant was lost, but plaintiff claimed that it didn’t include access to lots of cars
2)       Court used the “rule of reason,” and said that if an easement grants a right of ingress and egress but is not highly specific as to limits of the access, then the scope of use is allowed to change over time within reason
c.        Fristoe v. Drapeau (1950) –
1)       Implied easement for access to an avocado grove. Eventually, the owner of the grove decided to build a house there. Owner of servient parcel tried to stop access
2)       Court used the rule of reason and stated that it was reasonable that the parties contemplated that the plot would be used as a residence at some point, so it was OK to use the easement for ingress and egress to the property
d.       Glenn v. Poole (1981)
1)       Easement was created by prescription over plaintiffs land. At the time of creation, the defendant was using the road to service his garage. Over time, the defendant started to use the easement for larger and larger trucks.
2)       Court held that the use by large trucks may be reasonable, but it is at the very edge of what might be permissible given the type of use that created the easement in the first place
3)       Wilcox notes that this shows how the method of creation might effect the scope of the easement
e.        Pasadena v. Water Co. (1941)
1)       Facts:
2)       Rule: The intention to convey an exclusive easement will never be imputed to the owner of a servient estate in the absence of a clear indication of such intention, and the mere grant of an unrestricted easement, not specifically defined as to the burden imposed on the servient estate, entitles the owner to make any use of the land that does not unreasonably interfere with the easement.
f.         Lighthouse v. South Island (SC 2003)
1)       The gooberment had an easement for water and sewer over the apartment complex. They granted a telecom company access to the easement to get to a tower on the gooberment’s land.
2)       Court ruled that the easement was unmistakable that the intent of the parties at the time of creation was to transfer an easement for the sole purpose of maintaining power and sewer.
g.       Lewis v. Young (1998)
1)       Facts: P consents to the movement of an easement.
2)       Issue: Can a landowner relocate an express easement without the consent of the dominant owner?
3)       Rule: In the absence of an intent otherwise, a landowner can relocate a right of way easement so long as he bears the expense of the relocation and the change does not frustrate the parties’ intent or purpose in creating the right of way or significantly lessen its utility. The general rule is that when the intent in granting an easement is to afford ingress and egress, it is the right of passage, and not any right to the physical passageway itself, that is granted to the easement holder.
4)       Analysis: Two other easement were laid out in metes and bounds, while the one in question was just a general description – thus it implies that the owner was just giving a general right of ingress and egress (indefinite description).
h.       Goodwin v. Johnson (SC 2003)
1)       Issue: Can a landowner relocate
2)       Rule: If there is an easement by necessity, then the servient owner can move it when the relocation will not significantly lessen the utility of the easement, increase the burdens on the owner of the easements in its use and enjoyment, or frustrate the purpose for which the easement was created.
3)       Analysis:
a)       “We recognize that it should be more difficult to relocate an express easement, as it is akin to a contract and is bargained for by the parties.”
D.      Termination of Easements
1.        Types:
a.        Express Terms
1)       Term – time limit
2)       Release – reconveyance
b.       Merger
1)       Appurtenant – where the dominant of servient tenements come under common ownership
2)       In Gross – where the owner of the easement becomes the owner of the servient tenement.
c.        Abandonment
1)       Intent is crucial – must show the dominant tenement intended to abandon the easement
2)       Mere non-use is not enough
d.       Adverse Possession – look at the intent and actions of the servient owner
e.        Estoppel
f.         Eminent Domain (or Condemnation)
g.       Tax sale – not clear
h.       Mortgage foreclosure – will terminate an easement that is subordinate to the mortgage
2.        Cases
a.        Hickerson v. Bender (1993)
1)       Rule
a)       Acquiescence to significant obstruction, coupled with lengthy nonuse, is sufficient to show abandonment of an easement for passage.
b)       Property improvements that block the use of an easement are “open, notorious, and hostil

licy dictated that this was a valid regulation and not a taking
b.       Penn Central Case
1)       Somebody wanted to build an office tower on top of grand central station. The owners of the station argued that they owned the rights to the air above the building, and could do whatever they wanted. Owners said preventing full use was a taking. Government had a “preserve historical value” statute.
2)       Court held that the government has the right to restrict some parts of the building, and as long as it doesn’t restrict the whole use of the property, there is no taking
c.        The Lucas Case (SC)
1)       Beachfront management act said you couldn’t build past a certain distance from the high water mark. The result of the act was that an owner couldn’t build on a certain parcel. Plaintiff argued that all economically viable use of the parcel had been taken. The purpose of the act was to prevent erosion.
2)       Supreme court said that while the state could regulate a nuisance without it being a taking. However, this wasn’t a common law nuisance, so the state couldn’t regulate
4.        Temporary regulatory takings
a.        Government passes some legislation that denies you all use for a period, and then repeals/amends the legislation, returning the use to you.
b.       The government will still owe you some damages for that period
C.       Non-conformities
1.        Generally
a.        A pre-existing use that is inconsistent with the zoning ordinance
b.       Two options for the locality wishing to enforce the zoning
1)       Let non-conforming use remain, but allow no room for change, eventually squeezing them out
2)       Amortization
a)       The amortization period must be a “reasonable” time to get reasonable return on the remaining useful life of the property
b)       May be shorter depending on the harm the business is doing to the surrounding neighborhood
c)       The closer the use comes to a nuisance, the shorter the period may be
2.        LA v Gage
a.        Gage had two lots, and built a two family house on one of them. He ran a wholesale plumbing business from this building. On the other lot, he built storage for plumbing supplies. 15 years later, the property was re-zoned residential, and didn’t allow for the business. There was a statute that said pre-existing commercial use in a newly zoned residential area must stop within 5 years of the rezoning
b.       Court held that Amortization is a police power, and was fine AS LONG AS the state grants the power to the locality
3.        South Carolina “Pending Ordinance Doctrine”
a.        Done to solve problems of people racing down to the courthouse to beat zoning or defeat development
b.       Date for the purpose with respect to zoning may be before doors actually open for business
1)       Generally, when the business or construction permits are granted, your dependence on the current zoning will allow you to open, even if the zoning changes
c.        Phased plan
1)       Most major developments are built in phases
2)       If you have a documented plan for a future phase, you might beat a zoning change. It may depend on the intent of the developer in creating the plan (was it a market test? A firm plan?)
d.       Effective date of zoning plan may be prior to the passing of the ordinance
1)       There has to have been public notice of the proposed new zoning scheme
2)       There has to have been some formal step toward implementation of the plan
D.      Fasano Doctrine – Deference to a decision to re-zone
1.        Fasano held that the decision of a zoning board is essentially a judicial proceeding, and therefore the court has a lot of leeway to review the decision of the zoning board
2.        Most jurisdictions consider zoning to be a legislative decision, and therefore can only be overturned if arbitrary and capricious
3.        South Carolina probably doesn’t follow the Fasano doctrine, but said it may someday become the law of the state
E.       Floating Zone
1.        Zone classification that is not specifically located on a zoning ordinance map
2.        Can be applied to specific zones on a case by case basis
3.        Floating zones can only be applied in other zones when the floating zone is consistent with the original zone’s plan and purpose
a.        A public need for the change must exist
b.       Need is best served by a change in classification
c.        This two part test has been relaxed recently
F.       Variances
1.        Generally
a.        Must be an unnecessary hardship on the property owner in order to get a variance (Puritan Greenfield test)
1)       Land can’t yield a reasonable return if used as zoned
2)       Plight of owner different from that of the people in the rest of the neighborhood
3)       The variance won’t alter the character of the land
b.       Use Variance
1)       A variance that allows the property owner to put the land to some use other than what is allowed under the zoning
c.        Bulk Variance
1)       A desire to encroach on a property setback or something like that.
2)       Generally won’t meet the unnecessary hardship test, but the variance will be granted anyway
2.        Puritan-Greenfield Improvement Association v. Leo
a.        Leo owned a house next door to a gas station. He was having a hard time selling it, so he got a variance to operate his dentist office in the house. The lot was zoned residential only
b.       Court held that this property could reasonably continue to be used as a residence.
c.        Also, if they grant his variance for hardship, then there will be a domino effect down the line for the whole neighborhood
d.       Court also noted that it’s his own damn fault for buying on the buffer