Boyd v. Bellsouth Telephone, No. 26170.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: Burnett
• Citation: 633 S.E.2d 136
• Parties: Caroline BOYD and The Caroline Collection, Inc., Respondents, v. BELLSOUTH TELEPHONE TELEGRAPH COMPANY, INC., a/k/a BellSouth Telecommunications, Inc., now known as BellSouth, Petitioner.
• Decision Date: 19 June 2006
• Docket Number: No. 26170.

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633 S.E.2d 136 Caroline BOYD and The Caroline Collection, Inc., Respondents,
v.
BELLSOUTH TELEPHONE TELEGRAPH COMPANY, INC., a/k/a BellSouth Telecommunications, Inc., now known as BellSouth, Petitioner. No. 26170. Supreme Court of South Carolina. Heard May 2, 2006. Decided June 19, 2006. Rehearing Denied July 20, 2006.

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Richard B. Ness, of Ness, Jett & Tanner, LLC, of Bamberg, for Petitioner.

James D. Mosteller, III, of Barnwell; and Stephen A. Spitz, of Charleston, for Respondents.

Justice BURNETT:

Caroline Boyd filed a declaratory judgment action on behalf of herself and her wholly owned corporation, The Caroline Collection, Inc., (collectively referred to as "Boyd") against BellSouth Telephone Telegraph Company, Inc., a/k/a BellSouth Telecommunications, Inc., now known as BellSouth (BellSouth). Boyd sought an easement across BellSouth's property. The special referee granted BellSouth's motion for summary judgment. The Court of Appeals affirmed in part, reversed in part, and remanded. Boyd v. BellSouth Tel. Telegraph Co., 359 S.C. 209, 597 S.E.2d 161 (Ct.App.2004). We affirm in part and reverse in part.

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FACTUAL AND PROCEDURAL BACKGROUND

In 1923, BellSouth's predecessor, AT & T, completed construction of a three-story building on its property in Denmark, South Carolina. BellSouth's original lot was bordered on the north by Otis Street (formerly Hammond Street), on the west by Carolina Highway (formerly Palmetto Avenue), and on the east by Beech Avenue. At some point during BellSouth's ownership, a driveway was constructed which ran from the rear of the building to Beech Avenue. A gate was erected at the end of the driveway on Beech Avenue.

In 1988, BellSouth severed the lot into two parcels and sold the western parcel with the building to the City of Denmark (Denmark). Denmark's parcel was bordered by Otis Street and Carolina Highway. In 1991, Denmark sold its parcel to John Boyd, who later conveyed the parcel to his wife, Caroline Boyd. Boyd used the building as an antique store.

Denmark and Boyd used BellSouth's gate and driveway to access the rear entrance of the building. After September 11, 2001, BellSouth decided to construct a fence between the two parcels for security reasons. This fence would prohibit Boyd from using BellSouth's existing gate and driveway to access the rear entrance of the building.

Boyd then brought this declaratory judgment action contending she had an easement implied by prior use,¹ implied by necessity, or by equitable estoppel over BellSouth's parcel. The special referee granted BellSouth's motion for summary judgment on all claims.

Boyd appealed. The Court of Appeals affirmed the special referee's grant of summary judgment for BellSouth on the easement by necessity claim and reversed the grant of summary judgment for BellSouth on the claims for an easement implied by prior use and by equitable estoppel. Id. at 213-17, 597 S.E.2d at 163-65.

We granted BellSouth's petition for writ of certiorari to review the Court of Appeals' decision concerning the easement implied by prior use and equitable estoppel.

ISSUES

I. Did the Court of Appeals err in reversing the special referee's grant of summary judgment for BellSouth on the easement implied by prior use claim?

II. Did the Court of Appeals err in reversing the special referee's grant of summary judgment for BellSouth on the easement by equitable estoppel claim?

STANDARD OF REVIEW

In reviewing the grant of a summary judgment motion, the appellate court applies the same standard that governs the trial court under Rule 56(c), SCRCP. Under Rule 56, SCRCP, a party is entitled to a judgment as a matter of law if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. In determining whether any triable issues of fact exist for summary judgment purposes, the evidence and all the inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Fleming v. Rose, 350 S.C. 488, 493-94, 567 S.E.2d 857, 860 (2002); Conner v. City of Forest Acres, 348 S.C. 454, 462, 560 S.E.2d 606, 610 (2002).

LAW AND ANALYSIS I. Easement Implied by Prior Use

BellSouth argues the Court of Appeals erred in reversing the grant of summary judgment on the easement implied by prior use claim because South Carolina does not recognize this type of easement. If early case law recognized the claim, then BellSouth contends it has only been recognized in the context of water drainage easements and has been subsumed by the development of easements by necessity and by prescription. Further, if an easement implied by prior use

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is currently recognized, then the Court of Appeals erred in finding a genuine issue of material fact existed as to the necessity element.

The special referee recognized a claim for easement implied by prior use, but found Boyd did not produce any evidence BellSouth intended to create an easement at the time of severance. He also found Boyd did not meet the element of necessity. Based on those findings, the special referee granted summary judgment for BellSouth.

The Court of Appeals held an easement implied by prior use exists when: (1) the dominant and servient tracts of land originated from a common owner; (2) the use was in existence at the time the original grantor severed the tracts; and (3) the use was apparent, continuous, and necessary for enjoyment of the dominant tract. Boyd, 359 S.C. at 214, 597 S.E.2d at 164 (citing Crosland v. Rogers, 32 S.C. 130, 133, 10 S.E. 874, 875 (1890) and Slater v. Price, 96 S.C. 245, 255-56, 80 S.E. 372, 374 (1913)). Further, the evidence showed BellSouth was the common owner of both parcels and continuously used the apparent driveway during the time of common ownership. The Court of Appeals concluded a factual issue existed as to whether the driveway is reasonably necessary for the enjoyment of Boyd's property and remanded the case. Boyd, 359 S.C. at 215-16, 597 S.E.2d at 164-65.

A. Recognition of Claim

While other authorities plainly identify easements by prior use, necessity, and prescription as three types of easements, South Carolina case law has not clearly distinguished between these types of easements. See 25 Am.Jur.2d Easements and Licenses 22, 30, 39 (generally describing easements by prior use, necessity, and prescription). Moreover, although easements by implication have been recognized in South Carolina, an easement implied by prior use has never been explicitly recognized.

The intent of the parties, as shown by all the facts and circumstances under which a conveyance was made, may give rise to an easement by implication. Hamilton v. CCM, Inc., 274 S.C. 152, 158, 263 S.E.2d 378, 381 (1980). Whatever easements are created by implication must be determined as of the time of the severance of the ownership of the tracts involved. Clemson Univ. v. First Provident Corp., 260 S.C. 640, 652, 197 S.E.2d 914, 920 (1973). Easements may be implied by necessity, by prior use, from map or boundary references, or from a general plan. 25 Am.Jur.2d Easements and Licenses 20-22, 30 (describing the different types of implied easements); Restatement (Third) Property: Servitudes §§ 2.11-.15 (2000 & Supp.2006) (same); see, e.g., Carolina Land Co. v. Bland, 265 S.C. 98, 217 S.E.2d 16 (1975) (when a grantor lays out a tract of land in streets and lots on a plat and sells those lots by deeds referring to the plat, normally the legal effect is the creation and conveyance of implied easements in the streets to the grantees); McAllister v. Smiley, 301 S.C. 10, 389 S.E.2d 857 (1990) (easement implied where the deed described the tract of land as bounded by a street and the deed referred to the plat on which the street was indicated but the deed did not mention an easement); Brasington v. Williams, 143 S.C. 223, 141 S.E. 375 (1927) (easement implied by necessity where the grantee was without an express easement or right of way to a public highway); see generally Brasington, 143 S.C. at 245, 141 S.E. at 382 ("There seems to have been nine methods recognized under the common law for the creation of an easement, namely, by grant, estoppel, way of a necessity, implication, dedication, prescription, ancient window doctrine, reservation, or condemnation.") (citing Davis v. Robinson, 189 N.C. 589, 127 S.E. 697 (1925)).

The party asserting the right to an easement implied by prior use must establish the following: (1) unity of title; (2) severance of title; (2) the prior use was in existence at the time of unity of title; (3) the prior use was not merely temporary or casual; (4) the prior use was apparent or known to the parties; (5) the prior use was necessary in that there could be no other reasonable mode of enjoying the dominant tenement without the prior use; and (6) the common grantor indicated an intent to continue the prior use after severance of title. See Elliott v. Rhett, 39 S.C.L. (5 Rich.) 405 (1852) ("Apart from all considerations of time, there is implied,

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upon the severance of a heritage, a grant of all those continuous and apparent easements, which have in fact been used by the owner during the unity, though they...