772 S.E.2d 163
S.C.2015Background
- Bundy owned rural tracts in Kershaw County; a dotted-line plat from 1960 shows Saxon Road and a disputed dirt road crossing Bundy’s land.
- Shirley’s 37-acre parcel (acquired by his parents in 1985; to Shirley in 2005) is landlocked and he used the disputed road for access from 1985–2004.
- During Bowater’s prior ownership (pre-2003) the property was enrolled in a public hunting program; access was seasonally restricted by a locked cable and SCDNR issued keys.
- In 2004 Bundy expressly permitted Shirley to erect a gate at the road entrance; in 2005 Bundy revoked permission and ordered the gate removed after threats and a dispute.
- Special referee found Shirley proved a prescriptive easement (8-foot width) based on long use (including Bennett family use 1947–1969 and Shirley’s use), but the Court of Appeals reversed.
- The Supreme Court granted certiorari, held the prescriptive-easement claimant must prove all elements by clear and convincing evidence, and affirmed the Court of Appeals’ reversal (modified).
Issues
| Issue | Plaintiff's Argument (Shirley) | Defendant's Argument (Bundy) | Held |
|---|---|---|---|
| Standard of proof for prescriptive easement | Preponderance of the evidence suffices | Clear and convincing required because easement deprives owner of rights | Court: Claimant must prove all elements by clear and convincing evidence |
| Effect of owner's permission (2004 gate) on adversity | Permission to install a gate did not necessarily defeat a prior adverse claim; use could still be adverse | Express permission stamps use as permissive and defeats claim of adverse use/claim of right | Court: Permission defeats prescriptive claim because permissive use is not adverse or under claim of right |
| Tacking prior owners' use (Bennett 1947–1969) | Bennett’s 22 years of adverse use can be tacked to Shirley to satisfy 20-year requirement | Even if Bennetts had an easement, intervening gap (1969–1985) lacks evidence of continuous adverse use, so tacking fails | Court: Tacking requires evidence of continuous/adverse use by intervening owners; Shirley failed to prove continuity, so cannot tack Bennett period |
| Procedural due process re: Court of Appeals rehearing | Denial of rehearing before considering reply violated due process | No due process violation; Court later reviewed reply and certiorari granted | Court: Issue moot and without merit — no due process violation |
Key Cases Cited
- Williamson v. Abbott, 107 S.C. 397 (1917) (permission to use property prevents prescriptive easement absent distinct hostile assertion)
- Paine Gayle Props., L.L.C. v. CSX Transp., Inc., 400 S.C. 568 (Ct. App. 2012) (permission to use/access defeats claim of adverse use for prescriptive easement)
- Pittman v. Lowther, 363 S.C. 47 (2005) (elements required to establish prescriptive easement)
- Morrow v. Dyches, 328 S.C. 522 (Ct. App. 1997) (tacking prior owners’ use to satisfy prescriptive period)
- Jones v. Daley, 363 S.C. 310 (Ct. App. 2005) (continued/reasonable frequency of use for prescriptive rights)
- Revis v. Barrett, 321 S.C. 206 (Ct. App. 1996) (claim of right vs. permission in prescriptive-easement context)