In a recent case concerning an easements shown on plats the South Carolina Court of Appeals held that while a reference in a deed to a plat which depicts an easement creates a presumption that the grantor intended to convey the easement, this presumption can be over turned by a showing that the grantor did not intend to convey the easement.
The case arose from dispute between two neighboring land owners over an easement shown on a plat. The owner of the dominant estate had used a dirt road many years to access the property however the owner of the servient estate erected a barrier to prevent ingress and egress by the owner of the dominant estate. Thereafter the owner of dominant estate filed a declaratory judgment action to establish the easement. The owner of the servient estate presents testimony of the original grantor and he indicates he did not intend to create an easement for the benefit of the owner of the dominant estate. The Master-in-Equity held that an implied easement existed for the benefit of the owner of the dominant estate.
Upon review the South Carolina Court of Appeals overturned the Master-in-Equity and held any easement created by a grantor’s reference to a plat in a deed would be an implied easement and as such the intent of the grantor governs if the easement is conveyed or not. The issue for a title reviewer is that the intent of a grantor will not be recorded so there will always be a question as to whether the easement depicted on a plat was intended. The best practice would be to specifically reference the easement in the deed which subdivides the property from the parent tract.