Who would maintain Sand Creek subdivision roads and culverts within Fairfield County’s easement?

Plain-English summary

The Attorney General predicted that Fairfield County, holder of a Sand Creek Properties roadway easement, would be responsible for all or at least an equitable portion of maintenance of roads and culverts within the easement. The deed granted the county a perpetual right of way for maintaining and improving the roadway, and the opinion applied the general rule that an easement holder ordinarily repairs the easement it uses.

The opinion distinguished the area within the easement from the rest of the subdivision annexed by Winnsboro. It said a court might assign the town responsibility for areas outside the easement and might apportion easement upkeep according to the parties' burden and use. It presented a likely court result, not a final judgment allocating costs.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did annexation automatically make Winnsboro responsible for the easement road? A: The opinion predicted Fairfield County, as easement holder, would bear all or an equitable share of upkeep within the easement despite the town's annexation.

Q: Did the opinion assign every culvert cost to the county?
A: No. It predicted county responsibility for all or an equitable portion and noted that a court could apportion costs according to use and burden.

Q: Did the opinion address areas outside the easement?
A: A footnote said a court might find Winnsboro responsible for the rest of the annexed subdivision.

Background and statutory framework

A senator asked about roads and culverts in Sand Creek Properties after a roadway easement was granted to Fairfield County and the subdivision was annexed into Winnsboro. The opinion interpreted the deed's maintenance purpose using the ordinary duties of easement holders.

Citations and references

The original text below cites Steele v. Williams. 204 S.C. 124, 28 S.E.2d 644 (1944) and identifies the deed granting the easement.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-27-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/01/Coleman-C.-4-27-2010-01203880xD2C78.pdf

Original opinion text

The Honorable Creighton B. Coleman, 2010 WL 1808717(2010)

2010 WL 1808717(S.C.A.GO

Office of the Attorney General
State of South Carolina

April 27,2010
*1 The Honorable Creighton B. Coleman
Senator

District No. 17
P. O. Box 1006

Winnsboro, South Carolina 29180
Dear Senator Coleman:

We received your letter requesting an opinion of this Office concerning the maintenance ofan easement in the subdivision Sand Creek Properties. You asked "who is responsible for the upkeep and maintenance ofthe roads and culverts" in the subdivision within the 50 foot easement. As a way of backgroimd, you provided that a "subdivision named Sand Creek Properties was developed that included roads and sidewalks. The developer deeded a 50' right-of-way easement for the purpose of maintaining and improving the roadways to Fairfield County... . Subsequently, the Town of Winnsboro annexed Sand Creek Subdivision by Ordinance... . In the Ordinance it is annexing "... any improvements ... This opinion will address prior opinions of this Office and relevant South Carolina caselaw. Law/Analysis

Generally, the owner in fee simple has all of the rights and responsibilities of maintaining property. However, when an easement is created, a small portion ofthe rights are given away by the grantor to the grantee. An easement is the "right to use the land of another for a specific purpose." Steele v. Williams. 204 S.C. 124, 28 S.E.2d 644 (1944). The grantor or fee simple owner would be considered servient, and the grantee or easement owner would be considered dominant. South Carolina Jurisprudence explains the duties of each as follows: In the absence of an agreement, the owner of the servient tenement is under no duty to maintain and repair and easement for the benefit ofthe dominant tenement. Ordinarily, the owner ofthe dominant tenement has the duty to keep the easement in repair. When both the owner of the dominant tenement and the owner of the servient tenement use the property subject to the easement, such as a gravel road, a court may equitably divide the responsibility for maintenance and repair, and may take into account such factors as the dominant

tenement's duty of maintenance and repair, the burden of the easement on the servient tenement, and the extent of the servient tenement's use.

12 S.C. Jur. Easements $ 25.

In Haves v. Tompkins. 287 S.C. 289, 337 S.E.2d 888 (Ct. App. 1985), the coiurt foimd that apportionment of one third of the burden of maintenance and repair of the gravel road upon owner of the dominant tenement, which road served as easement, was equitable, considering the burden easement placed on the servient property and the benefit derived by the dominant landowner. The court held that "[o]wners of the servient tenement had no duty to maintain and repair easement for benefit of dominant tenement, absent agreement." Haves. 287 S.C. 289, 293 (1985). See also. Caper v. Fripp. 24 S.C.L. 224(1839)(The court held that the one who uses the way must repair it, or bear the inconvenience).

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The Honorable Creighton B. Coleman, 2010 WL 1808717 (2010)

In an opinion of this Office dated June 15, 1966, we stated as follows:
*2 In Leonard v. Central Carolina Telephone Co.. [205 S.C. 1, 30 S.E.2d 155 (1944)], the Court stated ... "Whether an

easement authorizes the use of land in a particular way depends upon the nature and extent of the easement."

Op. S.C. Attv. Gen.. June 15, 1966 (citing Leppard, 205 S.C. 1,6(1 944)). The nature and extent of the easement created by Sand Creek Properties for Fairfield County is expressly articulated in the deed granting the easement.

The deed for a 50 foot easement was created on December 1 , 1987. Sand Creek Properties, Inc. is the owner in fee simple,

but for consideration of one dollar and by way of public dedication, paid by Fairfield Comity, a perpetual right-of-way easement was granted, bargained, sold, and released to Fairfield County for the purpose of maintaining and improving a

highway or roadway leading from Highway #213.

On June 5, 1990, the Mayor and Council of the Town of Winnsboro ordained that the subdivision Sand Creek Properties would be annexed to and become part of the Town of Winnsboro.

Prior to June 5, 1990, the Sand Creek Properties subdivision would have been considered the servient tenement, but since the Town of Winnsboro annexed the subdivision, the Town of Winnsboro now serves the role as servient tenement. Fairfield County, as the owner of the easement, is the dominant tenement.

Chapter 29, Title 49 of the South Carolina Code of Laws of 1976 is the South Carolina Scenic Rivers Act. This Act

does not specifically apply to easements created to improve a roadway, but S.C. Code § 49-29-20(6) defines "perpetual

easement." Here, a "perpetual right-of-way easement" was granted. 1 A "perpetual easement" is "a perpetual right in land of less than fee simple which ... obligates the grantor and his heirs and assigns to certain restrictions constituted to

maintain the scenic qualities of those lands bordering ..." § 49-29-20(6).

Conclusion

A court would likely find that Fairfield County, the grantee of the easement in question, is responsible for all, or at

least an equitable portion, of the roads and culverts within the 50 foot easement. The intended purpose of the easement was to maintain and improve the roadway to Fairfield County; in fact, the actual deed expresses that the easement was created for the "purpose of maintaining and improving a highway or roadway." Fairfield County was properly granted

the easement. Therefore, Fairfield County will likely be held responsible for maintaining the area within the easement. 3 Sincerely, Henry McMaster

Attorney General

By: Leigha Blackwell

Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Deputy Attorney General

Footnotes
1

See December 1, 1987 deed

2

While the court would likely find that Fairfield County is responsible for the maintenance of the easement, the court may find that the Town of Winnsboro must maintain the rest of Sand Creek Properties subdivision as their annex.

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2

The Honorable Creighton B. Coleman, 2010 WL 1808717 (2010)

3

Depending on the burden on and use by the dominant and servient tenement, a court may equitably apportion the maintenance and cost of upkeep. See, Hayes v. Tompkins, 287 S.C. at 294.

2010 WL 1808717 (S.C.A.G.)

Kud of Document

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