THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Mavis L. McKnight, Respondent,
v.
Irby Ned Myron Lowder, Appellant.
Appeal From Florence County
�Haigh Porter, Special Referee by
Designation
of the Presiding Circuit Court Judge
Unpublished Opinion No.� 2010-UP-416
Submitted September 1, 2010 � Filed
September 20, 2010�
REVERSED AND REMANDED
Stephen J. Wukela, of Florence, for Appellant.
E. LeRoy Nettles, Sr. and Marian D. Nettles, both of Lake City, for Respondent.
PER CURIAM:� Irby Ned Myron Lowder appeals the Special Referee's Order recognizing a twenty-five foot wide easement across his property, arguing no evidence existed in the record to support the Special Referee's factual finding.� We reverse and remand for further factual findings because the Special Referee's finding was not supported by a preponderance of the evidence.[1]
Lowder and McKnight are brother and sister and adjacent landowners. �The easement at issue is a dirt road crossing Lowder's property that McKnight has used for ingress and egress to her lot since 1974.� In February of 2007, McKnight brought an action to recognize the existence of her easement for ingress/egress and to enjoin Lowder from obstructing the easement. �The matter was heard by a Special Referee.� Prior to the hearing, Lowder and McKnight both conceded the existence of the easement, but disputed the width of the easement.
During the hearing, Lowder used visual scales on two separate county plats entered into evidence to mathematically calculate the actual width of the dirt road at 9.375 feet.� McKnight's husband testified he and McKnight needed a twenty-five foot wide easement to permit fire trucks and ambulances to access their mobile home in the event of an emergency. �McKnight's husband testified Lowder obstructed their use of the dirt road by moving a trailer onto his land bordering the dirt road and piling cut tree logs along the edge of the dirt road, thereby narrowing the width of the dirt road to eleven feet.� The Special Referee issued an order recognizing a twenty-five foot wide easement.� This appeal followed.� ���
"The determination of the existence of an easement is a question of fact in a law action . . . ." Frazier v. Smallseed, 384 S.C. 56, 64, 682 S.E.2d 8, 12 (Ct. App. 2009) (citation omitted).� "However, the determination of the extent of a grant of an easement is an action in equity."� Id.� "In an action in equity, the appellate court may resolve questions of fact in accordance with its own view of the preponderance of the evidence."� Fesmire v. Digh, 385 S.C. 296, 303, 683 S.E.2d 803, 807 (Ct. App. 2009).�
"An easement is a right of use over another's property."� Inlet Harbour v. S.C. Dep't of Parks, Recreation, and Tourism, 377 S.C. 86, 91, 659 S.E.2d 151, 154 (2008).� "Easements can arise by both express creation and by implication."� Id.� "Implied easements are based upon the theory that whenever one conveys property, he intends to convey whatever is necessary for the property's use and enjoyment."� Id.� "[T]he intentions of the parties to the transaction are the overriding focus when examining implied easements."� Id. at 92, 659 S.E.2d at 154.�
"The right of the easement owner and the right of the landowner are not absolute, irrelative and uncontrolled, but are so limited, each by the other, that there may be a due and reasonable enjoyment of both."� Hill v. Carolina Power & Light Co., 204 S.C. 83, 96, 28 S.E.2d 545, 549 (1943).� "In other words, a grant or reservation of an easement in general terms is limited to a use which is reasonably necessary and convenient and as little burdensome to the servient estate as possible for the use contemplated."� Id.
The Special Referee's finding regarding the existence of an easement has not been appealed and is therefore the law of the case.� See Dreher v. Dreher, 370 S.C. 75, 78 n.1, 634 S.E.2d 646, 647 n.1 (2006).� Therefore, the only factual finding on appeal is the scope or extent of the easement.� Because the extent or scope of an easement is an equity action, this court is free to resolve questions of fact in accordance with its own view of the preponderance of the evidence.� Fesmire, 385 S.C. at 303, 683 S.E.2d at 807.
Upon thorough review of the Special Referee's factual findings, we conclude the grant of a twenty-five foot wide easement was not supported by the preponderance of the evidence. �Specifically, the Special Referee erred in not taking into account the interests of the servient estate when determining what easement width was both reasonably necessary and convenient.� Although McKnight's husband testified he wanted a twenty-five-foot wide easement, he also admitted a seventeen-foot easement was sufficient for an ambulance or truck to reach the couple's mobile home.� In addition, the creation of a twenty-five-foot wide easement would require the McKnights to cut down trees which have been present on the servient estate since 1985.�
Accordingly, we reverse and remand for the Special Referee to consider the interests of both the dominant and servient estate owners in determining what easement width is both reasonably necessary and convenient.� See Hill, 204 S.C. at 96, 28 S.E.2d at 549.
REVERSED AND REMANDED.
SHORT, THOMAS, and LOCKEMY, JJ., concur.
[1] We decide this case without oral argument pursuant to Rule 215, SCACR.