Jones v. Daley

• Decision Date: 22 February 2005
• Docket Number: No. 3951.,3951.
• Citation: 609 S.E.2d 597,363 S.C. 310
• Court: South Carolina Court of Appeals
• Parties: Brenda JONES, Appellant, v. Lake W. DALEY, Respondent.

363 S.C. 310

609 S.E.2d 597

Brenda JONES, Appellant, v.Lake W. DALEY, Respondent.

No. 3951.

Court of Appeals of South Carolina.

Heard January 11, 2005.

Decided February 22, 2005.

David S. Mathews, of Ridgeland, for appellant.

R. Thayer Rivers, of Ridgeland, for respondent.

WILLIAMS, J.:

Brenda Jones appeals a special referee's decision that her use of Lake Daley's property for ingress and egress to her own property did not create an easement by prescription.We reverse and remand.

FACTS

In 1939, Thomas Washington acquired title to fifty acres of property in Jasper County.This property was divided and sold to unrelated parties in 1963, except for a five-acre parcel Thomas gave to his daughter, Jamie Washington.Ms. Washington granted her niece, Brenda Jones, a one-half interest in this parcel in 1982.In 1993, Jones was granted the remaining half interest, giving her full title to the five-acre property ("the Jones Parcel").

Throughout the Washington family's ownership of the Jones Parcel and the larger fifty-acre tract, the only access to the property was by use of a trail that followed the northern and eastern boundary of a two hundred acre parcel ("the Daley Parcel") situated between it and the nearest public road.This trail, the use of which is at issue in this case, followed the Daley Parcel's outer borders, but was situated entirely within the parcel's boundaries.Union Camp owned the Daley Parcel until 1987, when it was sold to Delta Plantation.In the late 1990s, Lake Daley purchased the two hundred acres from Delta Plantation.Jones's three uncles, who worked the Jones Parcel with their father, original owner Thomas Washington, all testified the family actively farmed the property from at least the early 1950s until 1959.At some point in the early 1950s, Union Camp plowed the preexisting access trail for the purpose of creating a firebreak.Following Union Camp's plowing, the Washingtons worked the plowed path with shovels, leveling out the newly cleared trail to make the path more suitable for ingress and egress to their property.Union Camp periodically plowed the firebreak, and each time the Washingtons reworked the trail to smooth it down for better travel.The Washingtons never requested permission to use the trail because they believed, since the trail was the only access to their property, they had a valid legal right to maintain and use it for ingress and egress.Union Camp, the Daley Parcel's owner for most of the time period at issue, was aware of the Washingtons' use and maintenance of the trail and fully condoned it for over thirty-five years.

Because the Washingtons ceased farming the Jones Parcel around 1959, their use of the trail became less frequent in the decades that followed.They did, however, continue to periodically visit the property and maintain the trail following Union Camp's plowing.A nearby resident since the 1960s testified that the trail's use to reach "buried" property was common community knowledge.Jones, age 46, testified the trail was used by her family to access the parcel "as far back as [she] remembered," and she specifically recalls using the access herself since the 70s or 80s.Because Jones is not a South Carolina resident, however, her visits to the property, though many, were sporadic.

In the mid-1990s, Delta Plantation, then owner of the Daley Parcel, decided to close a road used by several other "buried" landowners that crossed directly over the two hundred acre property.To satisfy landowners who possessed recorded easements over the closed road, the access trail used by the Washington family was expanded into a full-sized road.An employee for Delta Plantation, who worked on the trail expansion, testified as to the state of the trail when they decided to build the new road.He stated he had maintained and expanded the firebreak since the beginning of his employment in 1987.Nevertheless, when asked if the new road was built over an existing road, he stated, "No ... there was a fireline, but just barely."He testified that by the mid-90s the trail was nothing more than a "deer trail."The employee conceded, however, that the path was about eight feet wide in places and would be traversable by a small tractor.

Following the trail's expansion into a fully accessible road, all landowners with recorded easements over the closed road were granted written easements over the newly created one.Because Jones did not have a recorded easement to use the closed road, she was not granted a written easement to use the road built over her parcel's only access.¹Despite a survey her uncle commissioned in 1989 of the Jones Parcel which recommended a written easement be obtained from Daley, Jones maintained the belief that she had a right to use the newly created road.

In 2001, Jones attempted to haul timber from her parcel over the Daley Parcel's road.Daley objected to this activity.In 2002, Jones brought an action against Daley to declare an easement by prescription for ingress and egress over the road.The appointed special referee found no easement by prescription was created by Jones and her predecessors' prior use.This appeal followed.

STANDARD OF REVIEW

Establishing the existence of an easement is a question of fact in a law action.Jowers v. Hornsby,292 S.C. 549, 551, 357 S.E.2d 710, 711(1987);Hartley v. John Wesley United Methodist Church of Johns Island,355 S.C. 145, 148, 584 S.E.2d 386, 387(Ct.App.2003).The present matter was consensually referred to a special referee.Accordingly, our scope of review is limited to the correction of errors of law, and we will not disturb the referee's factual findings that have some evidentiary support.Townes Assocs., Ltd. v. City of Greenville,266 S.C. 81, 85-86, 221 S.E.2d 773, 775(1976);Hartley,355 S.C. at 148, 584 S.E.2d at 387.

LAW/ANALYSIS

As a preliminary matter, we address Daley's assertions that the issues Jones raises on appeal are not preserved for our review.It is Daley's position that because Jones pled she"owns a right to use the easement of ingress and egress by prescription for continuous open hostile and adverse possession,"she may not now assert a prescriptive easement under a claim of right on appeal.We disagree.

"It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review."Staubes v. City of Folly Beach,339 S.C. 406, 412, 529 S.E.2d 543, 546(2000).In the present case, the special referee opened trial by stating to the parties and their lawyers there would not be opening or closing arguments in the case.Instead, the referee stated he would give both parties"ten days to submit me a letter in the way of a closing argument summarizing what they think that their witnesses said and what their position is as to what the ruling ... that I make should be."Jones, unlike Daley, availed herself of this opportunity, clearly and cogently raising Jones' satisfaction of the claim of right element to establishing the easement by prescription.The special referee, after ten months of consideration, addressed the claim of right issue in his final order, but dismissed Jones's arguments, finding no easement was established.Because these issues were raised to and ruled upon by the special referee, we conclude they are preserved for our review.Having addressed the issues' preservation for appellate review, we move now to the merits of the referee's legal conclusions.

I.The Requisite Elements of Establishing a Prescriptive Easement

Jones argues the referee erred in concluding a prescriptive easement can only be established by use that is both adverse and under a claim of right.We agree.

Relying on the case of Nelums v. Cousins,304 S.C. 306, 308, 403 S.E.2d 681, 682(Ct.App.1991), the referee incorrectly stated the elements of establishing a prescriptive easement as twenty years of use which is "adverse, exclusive, continuous, and uninterrupted and occurred under claim of right and with the knowledge or acquiescence of [the] owner of [the] servient estate or predecessors in title."Applying these elements, he concluded Jones...