(dissenting):
I respectfully dissent. I disagree with the analysis and reasoning of the majority. I would reverse.
The majority plucks isolated quotes from' South Carolina cases relating to easements to justify the erroneous result reached. The holding by the majority turns the law of easements on its head. Indubitably, the holding enunciated by the majority is fatally flawed when juxtaposed to existing easement law in South Carolina. The efficacy of the majority’s opinion is to place the law of easements in a continuum of confusion.
STANDARD OF REVIEW
The determination of the existence of an easement is a question of fact in a law action and subject to an “any evidence” standard of review when tried by a judge without a jury. Slear v. Hanna, 329 S.C. 407, 496 S.E.2d 633 (1998); Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). However, the determination of the scope or extent of the easement is a question in equity. Tupper, supra; Smith v. Commissioners of Public Works, 312 S.C. 460, 441 S.E.2d 331 (Ct.App.1994). Therefore, in an action tried before a Special Referee with direct appeal, this Court may take its own view of the evidence on the latter issue. Tupper, supra; Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).
LAW/ANALYSIS
Springob asserts the Special Referee erred in holding the easement Dr. Shenoy reserved for the use of the well was an *594easement in gross rather than an easement appurtenant. I agree.
Easement Appurtenant or Easement in Gross
An “easement” is the right of one person to use the land of another for a specific purpose. Steele v. Williams, 204 S.C. 124, 28 S.E.2d 644 (1944). The character of an express easement is determined by the nature of the right and the intention of the parties creating it. Tupper, supra. An easement may be created by reservation in a deed. Douglas v. Medical Investors, Inc., 256 S.C. 440, 182 S.E.2d 720 (1971).
Easements are divided into two classes: easements appurtenant and easements in gross. Safety Bldg. & Loan Co. v. Lyles, 131 S.C. 542, 128 S.E. 724 (1925). “An appendant or appurtenant easement must inhere in the land, concern the premises, have one terminus on the land of the party claiming it, and be essentially necessary to the enjoyment thereof.” Sandy Island Corp. v. Ragsdale, 246 S.C. 414, 420, 143 S.E.2d 803, 806 (1965). It passes with the dominant estate upon conveyance. Carolina Land Co. v. Bland, 265 S.C. 98, 217 S.E.2d 16 (1975). In contrast, an easement in gross is a mere personal privilege to use the land of another. Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). The privilege is incapable of transfer. Id. An easement in gross is not, therefore, assignable or inheritable. Id.; Sandy Island Corp. v. Ragsdale, 246 S.C. 414, 143 S.E.2d 803 (1965).
Easements in gross are not favored by the courts. An easement will never be presumed as personal when it may fairly be construed as appurtenant to some other estate. Thus, if an easement is in its nature an appropriate and useful adjunct of the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show the parties intended it to be a mere personal right, it should be held to be an easement appurtenant and not an easement in gross. If doubt exists as to its real nature, an easement is presumed to be appurtenant and not in gross. 25 Am.Jur.2d Easements and Licenses § 12 (1996).
In construing a deed, it is elementary the cardinal rule of construction is to ascertain and effectuate the intention of the parties, unless that intention contravenes some well settled *595rule of law or public policy. Sandy Island Corp., supra. The intention of the parties must be determined by a fair interpretation of the grant or reserve creating the easement. Id. If the language in the grant or reservation is uncertain or ambiguous in any respect, the court may inquire into and consider all surrounding circumstances, including the construction which the parties have placed on the language. See Smith v. Commissioners of Public Works, 312 S.C. 460, 441 S.E.2d 331 (Ct.App.1994) (whether grant in written instrument creates easement and type of easement created are to be determined by ascertaining intention of parties as gathered from language of instrument; grant should be construed so as to carry out that intention). See also 25 Am.Jur.2d Easements and Licenses § 22 (1996) (if language is uncertain or ambiguous in any respect, all surrounding circumstances, including construction which parties have placed on language, may be inquired into and taken into consideration by court, to end that intention of parties may be ascertained and given effect).
Viewing all of the evidence in the record, Dr. Shenoy intended to create a perpetual easement in favor of Lot 13 when he reserved the easement in the original deed.
Viability of Common Law Rule
Under the common law rule, one cannot reserve an interest in property to a stranger to the title. Willard v. First Church of Christ, Scientist, Pacifica, 7 Cal.3d 473, 102 Cal.Rptr. 739, 498 P.2d 987 (1972). See also Annotation, Reservation or Exception in Deed in Favor of Stranger, 88 A.L.R.2d 1199 (1963) (early rule is that in instrument of conveyance a mere reservation in favor of stranger to deed is inoperative to create in him any right or interest in property conveyed). The rule was based on feudal considerations. Willard, supra. As the California Supreme Court elucidated in Willard: “While a reservation could theoretically vest an interest in a third party, the early common law courts vigorously rejected this possibility, apparently because they mistrusted and wished to limit conveyance by deed as a substitute for livery by seisin.” Id. at 989.
Several states that have retained the common law rule in recent cases have done so on the basis of stare decisis. See, *596e.g., Tripp v. Huff, 606 A.2d 792, 793 (Me.1992) (court declined to depart from common law rule; “ ‘Stare decisis must operate with plenary force in the law of real property to maintain the certainty and predictability which Courts traditionally have made the benchmark of this area of jurisprudence and upon which, accordingly, the public has been induced to place strong reliance.’ ”); Estate of Thomson v. Wade, 69 N.Y.2d 570, 516 N.Y.S.2d 614, 509 N.E.2d 309, 310 (1987) (refusing to abandon long-accepted rule in New York which holds that deed with reservation by grantor in favor of third party, so-called “stranger to the deed,” does not create valid interest in favor of that third party; in area of property law, “ ‘stability and adherence to precedent are generally more important than a better or even a ‘correct’ rule of law’ ”). See also Pitman v. Sweeney, 34 Wash.App. 321, 661 P.2d 153 (1983) (following rule that reservation or exception in deed cannot create rights in strangers to the instrument).
A number of states have held the common law rule must succumb to the intent of the grantor. See, e.g., Medhus v. Dutter, 184 Mont. 437, 603 P.2d 669 (1979) (holding, in proper case, court will depart from common law rule to give effect to grantor’s intent; before creation of easement in stranger to conveyance will be recognized, intent of grantor to create easement must be clearly shown).
Other courts have simply held a grantor may create an easement in favor of a third party in the same deed he conveys fee simple estate in the land. See Enderle v. Sharman, 422 N.E.2d 686 (Ind.Ct.App.1981). See also Katkish v. Pearce, 490 A.2d 626 (D.C.1985) (adopting what court believed to be the more enlightened view that by a single instrument of conveyance there may be created an estate in land in one person and an easement in another); Borough of Wildwood Crest v. Smith, 210 N.J.Super. 127, 509 A.2d 252, 261 (1986) (noting legal writers are critical of common law rule and Restatement of Property refuses to adopt it; court adopted approach of Restatement of Property § 472 (1944), which provides: “ ‘By a single instrument of conveyance, there may be created an estate in land in one person and an easement in another.’ ”); Zurn Indus., Inc. v. Lawyers Title Ins. Corp., 33 Ohio App.3d 59, 514 N.E.2d 447 (1986) (finding grantor could create estate in land in one person and reserve easement in favor of third party by single instrument of conveyance).
*597Finally, some jurisdictions have rejected the common law rule outright. In abandoning the common law rule, the Court of Appeals of Kentucky explained:
We have no hesitancy in abandoning this archaic and technical rule. It is entirely inconsistent with the basic principle followed in the construction of deeds, which is to determine the intention' of the grantor as gathered from the four corners of the instrument. Technicalities should be disregarded where the intention is clear.
Townsend v. Cable, 378 S.W.2d 806, 808 (Ky.Ct.App.1964) (citations omitted)..
Relying on Townsend, supra, the Supreme Court of Oregon, in Garza v. Grayson, 255 Or. 413, 467 P.2d 960 (1970), rejected the common law rule. In Garza, the plaintiffs sought a declaration establishing the existence of an easement over the defendants’ land for the construction and maintenance of a sewer line serving the plaintiffs’ adjoining land. The trial court granted relief to the plaintiffs and the defendants appealed. The Oregon Supreme Court held:
[The common law rule] is derived from a narrow and highly technical interpretation of the meaning of the terms “reservation” and “exception” when employed in a deed. It is said that a person other than the grantor “has no interest in the land to be excepted from the grant, and likewise none from which a reservation can be carved out.”
We do- not regard this as a satisfactory reason for defeating the grantor’s intention to create an easement in a person other than the grantee of the estate conveyed in the deed, if the intention to create the easement is adequately expressed in the deed. The view we take is supported by most if not all the legal commentators and by the better reasoned cases. It is also adopted by the Restatement. 5 Restatement of the Law of Property, § 472, p. 2966 (1944) states the rule as follows:
“By a single instrument of conveyance, there may be created an estate in land in one person and an easement in another.”
Garza, 467 P.2d at 961 (footnotes omitted).
The Supreme Court of California referred to the common law rule as “an inapposite feudal shackle.” Willard v. First *598Church of Christ, Scientist, Pacifica, 7 Cal.3d 473, 102 Cal.Rptr. 739, 498 P.2d 987, 989 (1972). The court explained:
In considering our continued adherence to [the common law rule], we must realize that our courts no longer feel constricted by feudal forms of conveyancing. Rather, our primary objective in construing a conveyance is to try to give effect to the intent of the grantor. In general, therefore, grants are to be interpreted in the same way as other contracts and not according to rigid feudal standards. The common law rule conflicts with the modern approach to construing deeds because it can- frustrate the grantor’s intent....
In view of the obvious defects, of the rule, this court has found methods to avoid it where applying it would frustrate the clear intention of the grantor....
... Since the rule may frustrate the grantor’s intention in some cases even though it is riddled with exceptions, we follow the lead of Kentucky and Oregon and abandon it entirely.
Willard, 102 Cal.Rptr. 739, 498 P.2d at 989-91 (citations omitted).
In renouncing the common law rule, the North Dakota Supreme Court, in Malloy v. Boettcher, 334 N.W.2d 8 (N.D.1983), explicated:
For reasons hereinafter discussed, we abandon the common law rule and apply, in its stead, the rule that a reservation or exception can be effective to convey a property interest to a third party who is a stranger to the deed or title of the property where that is determined to have been the grantor’s intent.
The common law rule that a reservation or exception cannot constitute a conveyance to a third party is based upon an extremely narrow interpretation of the terms “reservation” and “exception.” When a grantor attempts to reserve or except a property interest unto a third party the common law rule may operate to defeat the obvious intent of the grantor to transfer the reserved or excepted interest to the third party. It is well settled that the primary •purpose in construing a deed is to ascertain and effectuate *599the intent of the grantor. Several jurisdictions have abandoned the common law rule on the ground that it serves no useful purpose and is contrary to the rule that a deed must be construed to carry out a grantor’s intent if at all possible.
In accordance with the foregoing discussion we follow the jurisdictions of California, Oregon, and Kentucky in abandoning the common law rule that a reservation or exception unto a third party who is a stranger to the deed or title of the property cannot constitute a conveyance of the property to the third person.
Malloy, 334 N.W.2d at 9-10 (citations omitted). See also Aszmus v. Nelson, 743 P.2d 377, 380 (Alaska 1987) (holding common law rule “clearly conflicts with our general view that a deed should be construed to effect the intent of the grant- or”).
I find persuasive the reasoning of the courts that have rejected the common law rule. The common law rule is a fossilized shackle on property rights. The efficacy of the common law rule in modern property relationships is obsolete and lacking in any utilitarian value. Moreover, the rule is antiquated and in direct contradiction with our cardinal rule of construction, which is to ascertain and effectuate the intention of the parties. See Sandy Island Corp. v. Ragsdale, 246 S.C. 414, 143 S.E.2d 803 (1965).
Additionally, we are not bound by stare decisis to retain the common law rule, despite the Court’s mention of the rule in Glasgow v. Glasgow, 221 S.C. 322, 70 S.E.2d 432 (1952). In that case, the Supreme Court addressed the issue of the validity of a life estate a husband reserved in favor of his wife. The Court noted the rule “a life estate may not be reserved to, or excepted in favor of, a stranger is long-established and logical.” Id. at 331, 70 S.E.2d at 435. However, the Court did not expressly adopt or reject this rule. Id. Instead, it recognized the exception to the rule that such a reservation may be done in favor of the spouse of the grantor. Id. The Court ruled the wife “had an inchoate right of dower in the land, a homestead right and an expectancy of inheritance from her husband if she survived him, which she did (and she was legally dependent upon him for support).” Id. at 331, 70 *600S.E.2d at 435. The Court concluded the wife was not a stranger to the title nor was she a stranger to the deed because she had renounced her dower rights. Id. Additionally, the Court explained: “Pure logic, for its own sake, should not be allowed to frustrate the clearly ascertained intention of a grantor which does not violate an established rale of construction or of law.” Id. at 333, 70 S.E.2d at 436.
CONCLUSION
The law of South Carolina permits a grantor to reserve an easement in favor of a third party in the same deed that conveys the servient estate. I reject the common law rule. Specifically, I adopt the rale in South Carolina that a grantor may reserve an easement in favor of a third party stranger. Here, Dr. Shenoy reserved a valid easement appurtenant in favor of Lot 13, the lot held by his wife when he conveyed Lot 14. Because the easement was appurtenant, it was, concomitantly, alienable and transferable. Springob, therefore, holds an appurtenant easement over the Farrars’ property. Accordingly, I would reverse the order of the Special Referee.