722 S.E.2d 813
S.C. Ct. App.2012Background
- Kelley bought 28 acres in 1977; road not described as easement in deed.
- Rasts conveyed land to Respondents in 1989 with a 20-foot access easement to U.S. 178.
- 2005 survey shows Kell y’s 24 acres, the sold acre, and the roadway at issue.
- Respondents used the road for ingress/egress; Kelley claims no permission and disputes the road’s status.
- Gate and signs were erected; Respondents maintained and asserted an easement; multiple witnesses testified to long-term use.
- Master found Respondents own a 20-foot easement by prescription; Kelley appealed; court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Respondents have a prescriptive easement by prescription | Kelley contends no implied easement exists without permission. | Respondents argue continuous, open use for 20+ years, with intent to use as of right. | Yes; prescriptive easement established by claim of right and adverse use. |
| Whether use was continuous and uninterrupted for the 20-year period | Kelley suggests use was not continuous or frequent enough. | Respondents show open, notorious, continuous use; interruptions were not effective. | Yes; use was continuous and uninterrupted. |
| Whether Respondents’ use was adverse or under a claim of right | Kelley argues the use was permissive or not adverse. | Respondents exercised use in a manner implying a right; gate evidence supports adverse use. | Yes; presumption of adversity established and not rebutted. |
| Whether tacking allows counting predecessors' use toward the 20-year requirement | Kelley contends no valid tacking from Rast use to Respondents. | Respondents may tack Rast use; privity and adverse use show >20 years. | Yes; tacking permitted; period exceeds 20 years. |
Key Cases Cited
- Murrells Inlet Corp. v. Ward, 378 S.C. 225 (Ct.App.2008) (elements of easement and prescription discussed)
- Pittman v. Lowther, 363 S.C. 47 (Ct.App.2005) (open, notorious, continuous use; interruption by barriers/acts)
- Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81 (1954) (standards for appellate review of factual findings)
- Horry Cnty. v. Laychur, 315 S.C. 364 (Ct.App.1993) (prescriptive use generally open/notorious; adverse presumptions)
- Jones v. Daley, 363 S.C. 310 (Ct.App.2005) (need only either claim of right or adverse use to establish prescriptive easement)
- Morrow v. Dyches, 328 S.C. 522 (Ct.App.1997) (tacking of preceding adverse use permitted)
- Hartley v. John Wesley United Methodist Church, 355 S.C. 145 (Ct.App.2003) (claim of right may support prescriptive easement without title)
- Revis v. Barrett, 321 S.C. 206 (Ct.App.1996) (claim of right evidenced by totality of surrounding circumstances)
- Getsinger v. Midlands Orthopaedic Profit Sharing Plan, 327 S.C. 424 (Ct.App.1997) (tacking and period of prescriptive use discussed)