Justices Rule on Prescriptive Easements

2016 Case Notes: Real Estate

Introduction

The South Carolina Supreme Court clarified the law of prescriptive easements in its decision in Simmons v. Berkeley Elec. Co-op., Order no. 27674 (S.C.Sup.Ct. filed Nov. 2, 2016) (Shearouse Adv.Sh. No. 42 at 12).  The Court considered a landowner’s challenge to a water line easement that dated back to 1978. 

Proceedings & Appeal

Roosevelt Simmons owned two tracts of land in Charleston County separated by an abandoned railroad easement.  In 2005, he discovered a water meter under a bush on one parcel.  He contacted St. John’s Water Company, who informed Simmons that water line was permitted by the county authority and was installed in 1978.  Simmons sued the water utility for trespass. The water utility argued that the easement was prescriptive and the trial court agreed, granting summary judgment to the utility.  The court of appeals affirmed the grant of summary judgment. 

The Supreme Court reversed.  In reviewing the law of prescriptive easements, the Supreme Court reiterated that three elements must be met:  "(1) the continued and uninterrupted use or enjoyment of the right for a period of 20 years; (2) the identity of the thing enjoyed; and (3) the use [was] adverse under claim of right.”  Id. at 15.  In summarizing the history of the third element, the Supreme Court recognized that the decision of Williamson v. Abbott, 107 S.C. 397, 93 S.E. 15 (1917) inserted a confusing comma.  Williamson expounded that the third element for prescriptive easement was satisfied by showing “that the use or enjoyment was adverse, or under claim of right.”  Williamson, 107 S.C. at 400, 93 S.E. at 15-16 (emphasis added).  The Simmons court explained “[b]y placing a comma after the term ‘adverse,’ this Court intended to modify the term ‘adverse,’ not create another method to establish a claim.”  Id. at 17.

Noting that “adverse” and “claim of right” are synonymous, the Supreme Court in Simmons explained that permissive use defeats the establishment of a prescriptive easement precisely because permissive use cannot be adverse.  Id. at 18.  Therefore, the Supreme Court held that easement claimants cannot prove adverse use through their “mistaken belief” as to ownership.  Id. at 19.  In fact, the Supreme Court held the “claimant’s belief regarding the permissiveness of his use of property is irrelevant.”  Id. 

Finally, the Supreme Court simplified the test for prescriptive easement and pared the elements down:  “to establish a prescriptive easement, the claimant must identify the thing enjoyed, and show his use has been open, notorious, continuous, uninterrupted, and contrary to the true property owner's rights for a period of twenty years.”  Id.

In eliminating the confusion, the South Carolina Supreme Court has also eliminated a critical catch-all method of proof on which claimants and courts have relied for many years.  Before Simmons, South Carolina courts have allowed claimants to prove the “claim of right” element of adverse use by establishing they held the property under a mistaken belief of ownership.  Id. at 15-16.  For instance, the Court of Appeals specifically rejected an argument that adverse use cannot be based on mistaken belief, and held a claimant “must demonstrate a substantial belief that he had the right to use the parcel or road.”  Matthews v. Dennis, 365 S.C. 245, 250, 616 S.E.2d 437, 440 (Ct. App. 2005)(emphasis in original); see also, Loftis v. S.C. Elec. & Gas Co., 361 S.C. 434, 604 S.E.2d 714 (Ct. App. 2004)(a prescriptive easement can also be established under a mistaken belief of right to use).

Conclusion

Based on this revision in the law, then, landowners must reassess if their property is subject to any easements that are held based on a mistaken belief of right to use.  Landowners should immediately contact a lawyer if they have any concerns about power lines, water lines, access roads, ditches, pipes, or other encumbrances on their property.