*1 Smith, Respondents SMITH, Jerry R. v. COM- F. Smith and Harold E. Carl the CITY OF CHARLES- PUBLIC WORKS OF MISSIONERS OF Politic, Body Jay Trust TON, Corporate H. McDowell and Bankers a Benjamin Kittredge, R. of whom Company, as the Will of Trustees under Charleston, City Corporate Public Works Commissioners of Appellant. Body Politic is the (2d) 331) (441 S.E. Appeals

Court *3 Jr., M. and C. Padgett, Donald Williams Karen Lucas C. Charleston, Sanford, of & appellant. Jackson all McNair for Barr, III, Barr, & of Barr McIntosh and Grover Capers G. III, Associates, Seaton, Charleston, of

C. Walter Bilbro & respondents. 9, 1993. Dec.

Heard 7, 1994. Feb.

Decided

Cureton, Judge: involving This action the inter- declaratory judgment is a action, In a written pretation respondents, of (Smiths), Smith, F. and R. Jerry Harold E. Carl Smith Smith ask the to have an easement to cross they court declare of appellant, of Commissioners Public Works of land (CPW). of The master the relief City granted Charleston affirm as modi- sought appeals. the Smiths CPW We fied remand. Berkeley are adjacent Smiths CPW land owners Kit-

County. R. They subsequent grantees Benjamin question the easement in from tredge originally who received in title. Park The ease- Bushy Authority, predecessor CPW’s ment agreement arose out of an condemnation ac- impending tion. In Park Bushy Authority needed to land acquire belonging Kittredge construct canal from the leading Cooper condemnation, River to the Back To River. avert Kit- tredge and Park Bushy entered into an agreement whereby deeded acres Kittredge Bushy Park. with Simultaneous the conveyance, Kittredge Bushy Park entered into the at issue. - II

Article of the agreement provision contains the in dis- pute: all

Kittredge and future owners of Dean Hall Planta- tion and Cypress Gardens shall the right, have and the them, same is hereby ingress, egress and regress to the banks of and across the canal about to be constructed, leading from the River Back Cooper River, at any point to the lands con- contiguous being veyed Kittredge the Authority.

Article III of the agreement requires CPW to limit the use of the canal as follows: shall at all times Authority prohibit hunt- shooting, (sic),

ing, fishing, or trafficking by use outboard mo- tors, otherwise, in the said canal south the viaduct same,... over which ... [bridge] would be detrimental to the desired central quiet atmosphere Gar- Cypress dens____ (viaduct) The bridge mentioned in Article III is about 250 (con- yards north the Smiths’ but not adjacent their A tiguous) to land. leads highway from Smiths’ land to the bridge. The access the seek to the canal over *4 land is south the CPW’s bridge.

Prior his death, to deeded Kittredge approximately acres to his trustees to be his death disposed upon pursuant acreage part to his will. This was remaining the of what was death, known as “Dean Hall Plantation.” After Kittredge’s the trustees approximately sold 71.45 acres from this tract to the Smiths.

The Smiths this brought seeking action a declaration of ease- ment under II rights answered, Article of the CPW the Smiths were not entitled to an easement across contending of the purpose because the agreement under the its and his succes afford Kittredge which was to 1955 agreement, construc canal, had satisfied with the to the been sors access con subsequent and the bridge of a over the canal tion Thus, any easement landing nearby.1 dock struction boat termi they argue, agreement, under the 1955 rights granted of the and dock.2 bridge the construction nated with final to an order of reference for consented parties Court, and con- appeal Supreme with direct judgment was fundamen- the that the matter at issue ceded to master (1) The master found: tally interpretation. document contemplated construction parties’ agreement the (2) “clear and bridge; agreement unambiguous” the was Smiths, the to Kittredge, the as successors to to lands con- any point” contiguous land “at cross CPW’s (3) that Kit- “clearly contemplat[ed]” veyed; CPW lands and “frequently successors would cross” tredge’s strip; the canal any along could do so “at they place” that (4) of “future owners of clearly are within class the Smiths and, therefore, rights had easement Dean Hall Plantation” over land. CPW’s not at

Accordingly, subject possible questions wetlands the master ordered afford the Smiths appeal, issue on CPW “for the purpose of access over and across CPW’s land rights and across the ingress, egress regress to the banks of Canal, CPW, such places held and owned Defendant at necessary deem reasonable the Plaintiffs [Smiths] holding of their this that property.” Implicit than one point. “at means several rather any point” points us sounds in first case before argues CPW main is to the ex- purpose because its determine equity and, thus, we may tent of the of an easement they frequently ramp use for access The Smiths testified the boat canal. by necessity, jurisdictions implied in other When an easement courts necessity longer no that the easement ceases at the time the exists. have held a South Carolina case that holds such. We have been unable locate Here, however, expressly cre- instant easement Juris. Easements implied necessity relating do grant and the rules easements not ated contemplated noting apply. also that the itself con- It is worth Moreover, bridge. ap- for termination of an struction of none bases apply purtenant appear in this See 12 case. S.C. Juris. §§ 29-34.

465 take our view of the preponderance evidence. theOn hand, other argue this case involves the determi nation of the of existence an easement which question is a of in fact a law case. agree While we with the Smiths that the in pleadings evidence this case present issue primary of whether or not the agreement creates an easement in favor the Smiths, they of present question also of the extent or scope of the easement. existence determination of the “[T]he anof easement is a of in question fact a law action” and sub ject to an any evidence standard of review when tried a jury. Jowers v. without a Hornsby, judge 292 549, 551, S.C. (2d) (1987). 710, 357 S.E. However, 711 the determination of the extent of a an easement in is an action equity. Moore v. Reynolds, (2d) 574, 577, 542, 285 S.C. 330 S.E. 544 (Ct. 1985). we App. Thus, may take our view of the evidence Assoc., on the latter issue. Townes Ltd. v. Council City Greenville, (2d) see also Floyd 81, 221 (1976); 266 S.C. S.E. (2d) (1991) (for Floyd, 306 S.C. S.E. treatment issues). containing of cases both legal equitable CPW next in argues master erred finding clear agreement was An unambiguous. agree. We ambiguous capable being under in more ways one, stood than in agreement obscure mean ing, through expression, indefiniteness of or containing words Ceramics, meaning. Carolina Inc. v. Carolina a double having Co., Pipeline 151, 155-56, 161 179, 181 251 S.C. S.E. (1968); Sitton, (1964). S.C. We Proffitt agree with CPW that the “future owners Dean Hall Planta “any tion” and in the point” language clearly ambiguous when considered in the context of conclude, however, such We does not a blanket ruling require reversal of the master on other issues raised this appeal. parties appear disagree as to whether the lan of Article II creates an easement

guage or a restrictive An covenant. easement of one to use person Williams, Steele v. the land of another a specific purpose. 124, 28 An character appurtenant, gross, ized either for commercial gross S.C. Juris. covenant, 3. A purposes. restrictive here, nature involved is contractual nature and re its owner. See stricts in some the free use land particular Covenants, Digest, Vol. cases collected under West’s *6 a declaration by created commonly covenants Restrictive covenants, recorded in the which is executed and of restrictive § as a 17 S.C.Juris. Covenants same manner deed. a instrument creates a written Whether are to of easement created be type easement and the of the ascertaining parties the intention by, determined instrument; the grant of the language as from the gathered carry so out that intention. be construed as should (2d) 246 S.C. Corp. Ragsdale, (1966) § 23 (1965); Am. Jur. Easements and Licenses (if all ambiguous any respect, is uncertain or language the circumstances, the construction which surrounding including may the be into placed language, inquired the have on parties court). objection, Without by into consideration the and taken the meaning evidence parties concerning both introduced sur- agreement and the circumstances the language we find agreement. Although the execution of the rounding the evidence we nonetheless hold agreement ambiguous, the II the conclusion that Article master’s supports We also concludethat Article creates an easement. agreement covenant. III was intended to be a restrictive incorrectly the ruled the argues next master CPW [owner(s)] Hall Planta were “future of Dean Smiths It claims the master’s con tion Gardens.” Cypress [or] Kit by intended distinction drawn struction overlooks the of Dean Hall Planta Bushy Park between “owners tredge all of land parcels or the Cypress [other] tion Gardens which includes suc conveyed by Kittredge Authority This claim has Bushy both Park.” no Kittredge cessors of of the Dean Hall Planta part The Smiths’ land was a merit. Any into.3 subse tion at the time the was entered upon of a of the land a quent change renaming portion does not have the ef of the Dean Hall Plantation subdivision Williams, the fect of easement. See Steele voiding (1944) (an right easement appurtenant subdivision every to the dominant estate and adheres thereof). para ICittredge’s the sixth from Trustees the recites 3 Thedeed subject property part Kittredge’s of 500-

graph of will which states tract, remaining part was Hall Plantation.” “the of what known as Dean acre complains CPW also of the failure of the master de nominate instant The gross.4 easement subject easement was created an express grant. general rule is that the character of an express determined nature and the intention it. Am. parties creating Jur. Easements and Li § Nevertheless, censes 13 the rule in South Carolina to be that an be appears necessary easement must en joyment of the dominant be estate to appurtenant.

Juris. Easements 3. We hold the language is evidence supporting master’s conclusionthat the agreement establishes an easement between appurtenant domi (“future Plantation”) nant owners of Dean Hall and servient (CPW) estates. intent of the clear parties seems given *7 “future owners” of Article II and language the succes binding sors condemnation” language of Article XI.5The “impending of the agreement circumstances and 1955 letter from Kit tredge’s lawyer Bushy Park’s corporate secretary support the conclusion that Kittredge wanted to retain the cross CPW’s land to the water and his enjoy other land. It is also clear that he by intended the at language employed to tach the attribute assignability (alienability) the ease ment. Island v. Sandy Ragsdale, 25 Am. Corp. supra; Jur. (1966) (easements License 13 in gross courts, are not the favored and an easement will never be it presumed personal may fairly ap when be construed as estate). to some other purtenant

There no merit clearly is to CPW’s contention that much be significanceshould on the failure of the placed the in agreement Smiths mention the deed from Kit- Trustees to the tredge’s any Smiths. The absence of mention of the easement in the deed is not relevant. The 1955 agreement 4 gross personal privilege An in easement is a mere to use the land of an- other; privilege incapable Corp. the Ragsdale, is of transfer. v. (1965). contrast, appurtenant 246 143 In S.C. 803 easement land, premises, in inheres the concerns the on the the has terminus land of party claiming it, essentially necessary enjoyment thereof. Id. at passes upon conveyance. 806. It also with the dominant estate Carolina Land Co., Bland, v. Inc. infra. upon provides binding This Article that the terms of the assigns. parties, the their successors and “fu the easement to clearly contemplates granting Park Bushy a successor to ture and binds CPW as owners” runs land of the dominant with the Authority. The (Smiths’) dominant es “conveyance estate the the although Co., mention it.” Carolina Land Inc. v. tate does not expressly (1975).Moreover, Bland, the deed 217 S.E. S.C. that there description the following states question members, heredi singular, rights, “all and is also belonging, to the said premises tament and appurtenances Such evidences language incident or anywise appertaining.” all rights [to Smiths] “to grantors the intent Brasington conveyed.” premises essential to the Williams, 223, 141 S.E. 375 S.C. v. on whether principal appeal language issue means more “any point” agreement relating with the master that point. agree than one We may point. pointed mean than one As “any point” term more (2d) 800, Inman, 243, 248, Pursley out in S.C. (1949): and is comprehensive meaning word is a word of “any” like all every”, used in the sense of “all or but frequently restrained words, meaning frequently its general other Tuten it [citing which subject qualifies, and limited (1934).] Bowden, 256, 175 S.E. 510 interpreted, must be unlocated easement subject however, faith, reasonableness good light necessarily the intent of parties what was *8 Co., Power Light Hill Carolina & 204 v. 1955 S.C. (1944) (an (2d) in terms is 83, general 545 28 S.E. necessary and convenient reasonably limited to a use which is possible little to the estate as and as burdensome servient the extent of determining In ease the use contemplated). (number routes), must ment of or consideration points access of essentially necessary enjoyment to what is given be v. Corp. Ragsdale, supra; the Smiths’ property. (2d) Bland, 98, 217 Company

Carolina Land 265 S.C. S.E. Co., v. Service Merchandise 123, 375 297 Jacobs (1975); S.C. 16 (Ct. Easements (2d) § 1988); 12 1 S.C. Juris. App. S.E. Plantation, Hall we hold it In view of the subdivision Dean say to that Kit- not reasonable to interpret is

469 tredge Bushy Park intended that each owner of any por Plantation, tion of the portion, no matter how small his would have his own unlimited private long access to the canal as as his land was contiguous CPW’s land. Patterson v. Duke Cf. (2d) (1971) (where Co., 479, Power 256 S.C. 183 122 deed width, but does grants right way not fix its the matter of width is considered what is “convenient light and neces sary for which accomplish purpose way ...”); was created (2d) § see also 25 Am. Jur. Licenses 64 et. seq.

We, therefore, hold the only Smiths are entitled to such ac cess across CPW’s reasonably to full necessary of their Here, however, the did property. master not consider whether not it or was that the necessary Smiths have access multiple canal across the land of CPW to fully enjoy their property. Additionally, we have although, found no South Carolina says so, case that specifically gen eral law is the owner servient estate has the right, instant, the first the location of an designate undesignated Comm’n, easement. Abdalla v. State 261 Highway 114, N.C. (2d) (2d) (1964); 134 S.E. 25 Am. Jur. Easements and Li § (1966); Marlow, censes see Marlow v. (Ct. 1985); Annot., 24 A.L.R. 4th App.

(1983).We, therefore, remand to the master for resolution points to, number of access are entitled and to es (routes), tablish access point points to include their § width. See Am. Jur. Easements and Licenses court, By way direction to the trial we in way no hold the Smiths are entitled to multiple access points land if point across CPW’s en reasonably sufficient to able them fully enjoy their property.

The decision master affirmed as modified. All other issues raised CPW and not discussed herein found to be without merit affirm manifestly pur- and we the master 220(b)(2), SCACR; suant Rule Ann. S.C. Code 14-8-250 1993) Hillcock, (Supp. Voelker 344 S.E. (Ct. 1986). App. Affirmed as modified and remanded.

Howell, C.J., concurs part, part; dissents Goolsby, J., concurs. *9 dissenting (concurring part,

Howell, Judge Chief part): II, of Article

I in the characterization majority’s concur I how- disagree, creates an easement. finding the language un- and ever, with the easement is unlocated finding mas- determination necessitating further delineated across the canal. number access and points ter as sets forth sufficiently that the master my It is opinion findings unnecessary. and further are of the easement scope the easement “all future owners grants Article II creating . the Gardens . . Cypress Dean Hall Plantations to the banks regress right... ingress, egress any at point[.]” about to be constructed ... across the canal added.) any “at language holds the majority (Emphasis than one under- an more ambiguity capable creates point” addi- and, therefore, requires the master to make standing Smiths, by agreement, as to whether the findings tional access canal across multiple points I lands of disagree. CPW. inten- rule is to ascertain the

The cardinal of construction Corp. Ragsdale, tion of the parties. therefore, easement, should parties. out the intention of the carry be construed so to Dean Hall Planta- II creates in all future owners of Article them enjoyment that would afford full tion Reviewing to their contiguous property. canal and banks entirety, parties appears in its intention in a the creation of unrestricted and unencumbered use to be unrestricted and unencumbered own- manner consistent with It waterway. my opin- of the fee on sides of the ership both that the words “to the banks of and across” intended ion only full restricted Article III which enjoyment activity that would disturb the prohibits quiet i.e., use of waterway, the banks and outboard motors shooting. would, therefore,

Affirm as modified.