Opinion
19963
February 13, 1975.
Messrs. Daniel R. McLeod, Atty. Gen., and Dudley Saleeby, Jr., Asst. Atty. Gen., of Columbia, for Appellant, cite: As to the Lower Court's erring in ordering that the Right-of-Way Easement be set aside based upon a finding of fact which contains no grounds sufficient in law or equity to support the rescission of a validly executed easement: 250 S.C. 114, 156 S.E.2d 641; 204 S.E.2d 50; 150 S.C. 45, 147 S.E. 661; 236 S.C. 52, 113 S.E.2d 66. As to the Lower Court's erring in denying Appellant's motion for nonsuit, in failing to direct a verdict in favor of the Appellant and in denying Appellant's motion for judgment N.O.V., or in the alternative, for a new trial: 195 S.C. 150, 10 S.E.2d 333; 23 Am. Jur.2d Deeds, § 72; 148 S.C. 147, 145 S.E. 705; 128 S.C. 79, 121 S.E. 559; 33 S.C. 175, 11 S.E. 631; 229 S.C. 252, 92 S.E.2d 639; Section 33-136, South Carolina Code of Laws (1962); 238 S.C. 267, 120 S.E.2d 106; 23 Am. Jur.2d Deeds, § 66; 17 C.J.S., Contracts, § 127; 13 Am. Jur.2d Cancellation of Instruments, § 33. As to the Lower Court's erring in finding as a fact that the Respondent signed the Right-of-Way Easement in the honest belief that no money would be paid for the right-of-way and that no road improvement would be made if he did not sign: 225 S.C. 354, 82 S.E.2d 454; 13 Am. Jur.2d Cancellation of Instruments, § 18; 207 S.C. 15, 35 S.E.2d 47 As to the Lower Court's erring in admitting over Appellant's objections, parol evidence as to the Respondent's conversations with Appellant's agent prior to and contemporaneous with the execution of the right-of-way easement: 257 S.C. 266, 185 S.E.2d 739; 111 S.C. 37, 96 S.E. 967, 23 Am.Jur.2d Deeds, § 72. As to the Lower Court's erring in allowing certain witnesses to testify, over Appellant's objections, as to out of Court conversations held with Appellant's agent on different dates, at different places and with regard to properties not conveyed or affected by this Right-of-Way Easement: 136 S.C. 423, 134 S.E. 390; 116 S.C. 221, 107 St. 917. As to the Lower Court's erring in arriving at its decision to set the Easement aside by weighing the evidence by its preponderance or greater weight rather than adhering to a standard of clear and convincing evidence: 12 C.J.S. Cancellation of Instruments, § 71; Accord, 13 Am.Jur.2d Cancellation of Instruments, § 65; 200 S.C. 279, 20 S.E.2d 741.
Respondent not represented by counsel.
February 13, 1975.
The plaintiff, John H. Wilson, initiated this action by service of a Complaint upon the South Carolina Highway Department, alleging an unconstitutional taking, without just compensation, of real property used by the Department in the improvement of the Belfast Road in Newberry County.
The Department, by way of Answer, interposed a general denial and pled as an affirmative defense an easement signed by plaintiff granting a right-of-way.
Plaintiff replied to the Answer and alleged that the easement was null and void and prayed the court to cancel the agreement. It was the contention of the plaintiff that the easement agreement which he admittedly signed should be set aside because of failure of consideration, inadequate consideration and mutual mistake.
The trial judge heard the equitable issues raised by the pleadings with regard to whether the right-of-way agreement should be rescinded. Thereafter, he issued a brief order as follows:
"This equitable matter came on before me sitting without a jury on Monday, January 28, 1974.
"I took the testimony and I make the following findings of fact and conclusions of law:
"1. That there was no intent on Mr. Goff's part to deceive anyone.
Goff was right-of-way agent.
"2. That there is no evidence to show that the landowner received one of the informative brochures which Mr. Goff mentioned, or that he had any knowledge of the other procedures to which Mr. Goff referred, and which are contained in that brochure.
"3. That the Belfast Road improvement has been completed.
"4. That the landowner signed the right-of-way in the honest belief that the Department would pay no money for the right-of-way and that if he didn't sign, the muchly needed road improvement would not be made.
"5. That the Department has paid money for right-of-way for this particular road and there have been condemnation verdict awards.
"6. That the Plaintiff is not entitled to payment of compensation at this time and that the issue of damages should be presented to a jury.
" It is therefore ordered, adjudged and decreed that the right-of-way be set aside and the landowner afforded his day in Court to determine damages for the taking of his property."
The Department has appealed, raising one basic issue which will be disposition of the case:
"Did the Lower Court err in ordering that the Right-of-Way Easement be set aside based upon a finding of facts which contains no grounds sufficient in law or equity to support the rescission of a validly executed Easement?"
We agree with the contention of the Department that the findings of fact of the lower court simply do not support the ultimate conclusion of the judge that the easement should be rescinded. The burden of proof on this issue was upon the party asserting the invalidity of the easement contract. A search of the record fails to reveal evidence warranting a finding that the plaintiff is entitled to a rescission.
The case is remanded to the lower court for entry of judgment in favor of the South Carolina Highway Department.
Reversed.
MOSS, C.J., and LEWIS, BUSSEY and NESS, JJ., concur.