The rights of an easement holder depend upon the interpretation of the grant in the easement.
Appellants (Landowners) commenced this class action against respondent (SCE&G) for trespass, unjust enrichment, an injunction, and declaratory judgment. Landowners claim SCE&G's conveyance of excess capacity on its fiber-optic cables was an improper use of the electric easements granted by Landowners to SCE&G. The trial judge granted SCE&G's motion to dismiss under Rule 12(b)(6), SCRCP.
Does the holder of a utility easement have the right to apportion part of its own use to third-parties as a matter of law and without reference to the written easements?
SCE&G argues it can apportion its use of the easements to third parties because the easements in question are commercial easements in gross which are alienable as a matter of law. This is not entirely correct. Even with such an easement, the court will look at the language of the easement to determine whether there was an intention to attach the attribute of assignability by the use of such language as "to his heirs and assigns." Sandy Island Corp. v. Ragsdale, 246 S.C. 414, 143 S.E.2d 803 (1965) (parties may make an easement in gross assignable by the terms of the instrument; commercial easement in gross assignable where language included "successors and assigns"); Douglas v. Medical Investors, Inc., 256 S.C. 440, 182 S.E.2d 720 (1971) (commercial easement in gross assignable where instrument included "his heirs and assigns"). Here, the easements attached to Landowners' complaint do state a conveyance to SCE&G and "its successors and assigns." While this language indicates assignability, the language limiting the use of the easement to communications necessary to SCE&G's business appears to restrict that assignability. This ambiguity requires construction of the written easements themselves.