Howell v. Clyde

493 S.E.2d 323 (1997)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

In an agreement dated 15 September 1969 and recorded 22 September 1969, the Warrens granted to Scenic Views, Inc. a 30-foot-wide access easement across certain property the couple owned. The easement contained the following restrictions: That legally binding restrictions will be imposed upon the property owned by the party of the second part, its successors, and assigns, and to which the easement is granting access, limiting said property to residential use, and that no trailers, trailer park, campground, shacks, or outside toilets, shall be erected thereon… It is specifically agreed that the party of the second part, its successors, and assigns will faithfully perform the foregoing conditions and that if all or any one part thereof is violated, this instrument shall be void and the parties of the first part or their heirs and assigns, may re-enter and take possession of the above-described access route. P eventually acquired the property benefitted by the easement and previously owned by Scenic Views. D acquired the property previously owned by the Warrens. D claims that conditions contained in the instrument granting the easement were breached when P's predecessors in title, Norbert F. Goode and Myra V. Mayse, raised goats for commercial purposes and located a trailer on the property. D allegedly informed Goode and Mayse that the easement was terminated, and thereafter locked the gates located at either end of the easement. No instrument terminating the easement was recorded. P purchased the Scenic View property and recorded the conveyance on 21 June 1995. At about the same time, P went to D's home and obtained the combination for the locks on the gates controlling the easement. P initiated this declaratory judgment action seeking interpretation of the instrument granting the easement. D claimed that the easement granted to Ps predecessors in title was a defeasible easement that had been terminated. The trial court held that for a termination of an easement in real property to be effective and applicable to a bona fide purchaser for value, sufficient notice of the termination must be recorded in the county where the real property is located to comply with the provisions of the Connor Act. D’s alleged termination was not recorded. The court then permanently enjoined D from interfering with the recorded easement. D appealed.