Boyd v. BELLSOUTH TELEPHONE, 3776.

• Decision Date: 12 April 2004
• Docket Number: No. 3776.,3776.
• Citation: 359 S.C. 209,597 S.E.2d 161
• Court: South Carolina Court of Appeals
• Parties: Caroline BOYD and The Caroline Collection, Inc., Appellants, v. BELLSOUTH TELEPHONE TELEGRAPH COMPANY, INC., aka BellSouth Telecommunications, Inc., now known as BellSouth, Respondent.

359 S.C. 209

597 S.E.2d 161

Caroline BOYD and The Caroline Collection, Inc., Appellants, v. BELLSOUTH TELEPHONE TELEGRAPH COMPANY, INC., aka BellSouth Telecommunications, Inc., now known as BellSouth, Respondent.

No. 3776.

Court of Appeals of South Carolina.

Heard November 5, 2003.

Decided April 12, 2004.

Rehearing Denied June 25, 2004.

J.D. Mosteller, III, of Barnwell and Stephen A. Spitz, of Columbia, for Appellants.

Richard B. Ness, of Bamberg, for Respondent.

HOWARD, J.:

Caroline Boyd, on behalf of herself and her antique business, The Caroline Collection, Inc., sued BellSouth Telephone Telegraph Company, Inc., a/k/a BellSouth Telecommunications, Inc., now known as BellSouth ("BellSouth"), seeking to establish an easement over BellSouth's property. Specifically, Boyd alleged she possessed an easement by necessity, pre-existing use, or estoppel. The special referee granted summary judgment to BellSouth, concluding no easement arose under any view of the facts. Boyd appeals, arguing factual issues precluded summary judgment as to each cause of action. We affirm in part, reverse in part, and remand.

FACTUAL/PROCEDURAL BACKGROUND

The two properties involved in this litigation are located in the City of Denmark, South Carolina. At one time, BellSouth owned both properties under its predecessor name, AT & T. As one parcel, the property was bounded on three sides by public streets.

In 1923, AT & T built a three-story building to house offices and switching equipment on the front portion of the lot. Thereafter, BellSouth constructed a concrete driveway running from the street at the back of the property to double-doors at the back of the building. These rear doors lead to the basement of the building. In 1988, BellSouth severed the front lot, selling it to the City of Denmark. The City continued using the driveway to access the rear of the building. Approximately three years after the original severance, the City sold the lot and building to Boyd's husband, who in turn transferred it to Boyd to use as a retail antique store. According to Boyd's husband, driveway access was a consideration in the decision to purchase the property. Boyd asserts her husband was acting on behalf of both himself and Boyd in the purchase of the building, in a joint venture, to open the antique business.

Following the purchase, BellSouth gave Boyd access to the driveway by allowing her to have a lock and key to the gate located at the street fronting on BellSouth's property. Boyd used this driveway to accept deliveries from tractor-trailers carrying large furniture, such as pianos, which she placed in the basement level of the antique store. However, after the terrorist attack on the United States on September 11, 2001, BellSouth increased the security to its property, notifying Boyd it intended to place a fence along her back property line separating Boyd's property from BellSouth's property, thereby cutting off access to the driveway.

In response, Boyd sued BellSouth, arguing the court should grant her continued use of the driveway by virtue of an easement by necessity and an easement by pre-existing use. Furthermore, Boyd claimed BellSouth made representations to her husband at the time he purchased the property, estopping BellSouth from claiming no easement existed. The case was referred to a special referee.

BellSouth moved for summary judgment on all of Boyd's causes of action. The special referee concluded no questions of fact existed and granted summary judgment. Boyd appeals.

STANDARD OF REVIEW

To obtain summary judgment, the moving party must demonstrate there is "no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Rule 56, SCRCP. In deciding whether to grant summary judgment, trial courts must construe all ambiguities, conclusions, and inferences arising from the evidence against the moving party. Id. Alternatively stated, "if the pleadings and evidentiary matter in support of summary judgment do not establish the absence of a genuine issue of material fact, summary judgment must be denied...." Baird v. Charleston County, 333 S.C. 519, 529, 511 S.E.2d 69, 74 (1999). Furthermore, "[a]n appellate court reviews the granting of summary judgment under the same standard applied by the trial court." Wells v. City of Lynchburg, 331 S.C. 296, 301, 501 S.E.2d 746, 749 (Ct.App.1998)

LAW/ANALYSIS

I. Easement By Necessity

Boyd argues the special referee erred by granting summary judgment on her claim for easement by necessity. We disagree.

A party claiming to be benefited by an easement by necessity must demonstrate the existence of the following three elements: 1) unity of title; 2) severance of the title; and 3) necessity of the easement. Morrow v. Dyches, 328 S.C. 522, 529, 492 S.E.2d 420, 424 (Ct.App.1997).

The third element, that of necessity, requires a showing of more than convenience. Morrow, 328 S.C. at 529, 492 S.E.2d at 424. The doctrine of easement by necessity is based upon the presumption that the grantor intended the grantee of a landlocked parcel to have access to his property, a right recognized as essential to the enjoyment of the land. Id. Thus, "[this] doctrine only provides reasonable access to the dominant estate when there is none; it does not provide a means for ensuring a preferred method of access to a particular portion of a tract when access to the tract is otherwise available." Id.

Public streets border Boyd's property. Therefore, we agree with the conclusion of the special referee that no easement by necessity arises under the facts of this case. Rather, under any view of the evidence, Boyd has reasonable access to her property. Accordingly, we hold the special referee properly granted summary judgment.

II. Implied Easement by Pre-existing Use

Boyd argues the special referee erred by granting summary judgment on her claim for an implied easement by pre-existing use. We agree.

An easement by pre-existing use exists where: 1) the dominant and servient tracts of land originated from a common grantor; 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. Crosland v. Rogers, 32 S.C. 130, 133, 10 S.E. 874, 875 (1890); see Slater v. Price, 96 S.C. 245, 255-56, 80 S.E. 372, 374 (1913) (holding the trial court did not err by charging the jury on the law of easement by pre-existing use); 25 Am.Jur.2d Easements and Licenses § 27 (1996) ("Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of the estate in favor of another part, which servitude is in use at the time of severance and is necessary for the reasonable enjoyment of the other part, on a severance of the ownership a grant of the right to continue such use arises by implication of law."); Russakoff v. Scruggs, 241 Va. 135, 400 S.E.2d 529, 532 (1991) (holding to establish an easement by pre-existing use, one must demonstrate: "(1) the dominant and servient tracts originated from a common grantor, (2) the use was in existence at the time of the severance, and that (3) the use is apparent, continuous, and reasonably necessary for the enjoyment of the dominant tract."); Ryerson Tower, Inc. v. St. James Towers, Inc., 131 A.D.2d 744, 517 N.Y.S.2d 48, 49 (N.Y.App.Div.1987) ("An implied easement arises when two adjacent parcels of land were previously held in common title and an intent can be ascertained from the circumstances surrounding the lands previous use and the conveyance that the holder...