Kelley v. Snyder

• Decision Date: 29 March 2012
• Docket Number: No. 4929.,4929.
• Citation: 722 S.E.2d 813,396 S.C. 564
• Parties: Thelease KELLEY, Appellant, v. Lee Dewayne SNYDER and Harry L. Snyder, Respondents.
• Court: South Carolina Court of Appeals

396 S.C. 564

722 S.E.2d 813

Thelease KELLEY, Appellant,

v.Lee Dewayne SNYDER and Harry L. Snyder, Respondents.

No. 4929.

Court of Appeals of South Carolina.

Heard Dec. 5, 2011.Decided Jan. 25, 2012.Rehearing Denied March 29, 2012.

R. Bentz Kirby, of Orangeburg, for Appellant.

James B. Jackson, Jr., of Santee, for Respondent.

SHORT, J.

In this land dispute involving a road on Thelease Kelley's property that leads to the property of Lee Snyder and his father Harry Snyder ¹ (Respondents), Kelley appeals the master's order granting Respondents a prescriptive easement to use the road “for ingress and egress” from their property to a public road. We affirm.

FACTS

Kelley purchased twenty-eight acres of land from his brother on November 23, 1977. The property description did not mention the property was subject to an easement.² Respondents purchased their property from Willie and Lois Rast on June 29, 1989, and the deed included an easement for a twenty-foot access road from U.S. Highway 178 to Respondents' property, which appears to be the road at issue in this case.³ A new survey of Kelley's land was completed on May 25, 2005, showing Kelley's twenty-four acres, the one-acre parcel he sold, and the roadway in question.

Kelley lives in New York, but has owned the property since purchasing it in 1977, and although he acknowledged Respondents had been using the “wagon road” since purchasing their property, he claimed he never gave Respondents permission to use the road to access their property.⁴ Kelley testified Respondents never asked him for permission to use the road or “cut it”; however, he never told them they were not allowed to use the road. Kelley maintains the road was barely passable by any vehicle other than a wagon until Respondents “cut” a road through after they purchased the property and put up a gate and private property sign. He claims the parties have had an “ongoing dispute” about the road for more than ten years, but the only contact he had with Respondents was comprised of two conversations about the gate they erected on the road. Kelley testified he asked Respondents to move the gate when they installed it, and they moved it back about halfway down his property. He then asked Respondents why they did not move it to their property line, and they replied they had an easement and a right to do what they wanted with his property. Lee Snyder (Lee) testified Kelley asked him to move the gate, but he said he preferred to leave the gate to prevent people from using it. He offered Kelley a key to the gate, but Kelley refused to take it.

Respondents testified Kelley never forbade them from using the road, and no one has ever prevented them from using it. Respondents also assert local residents have used the road for years to access their property and other property for hunting and farming.⁵ Larry Rast, son of Willie and Lois Rast, testified he and his father widened the road to accommodate farm equipment in the mid–1960s, and his family used the road to farm their property until the 1970s. Resident Harry Wimberly testified he used the road as far back as the late 1960s to hunt, and he has used it to access Respondents' house. Curtis Spell, who grew up in the area, testified he is seventy-eight years old, and the road was there when he was born. Marion Kennedy also testified the road has been there as long as he can remember, and he is sixty-five years old. He also testified he has seen others use the road, in addition to Respondents. Before purchasing the property, Respondents rented the land from the Rasts and used the road to hunt the land.

Lee testified he is the only person who maintains the road on Kelley's property. Respondents also admitted they have exercised some control over the road by telling loggers and a farmer they “preferred them not to use it,” and the loggers and farmer acquiesced.⁶ Kelley testified there were other ways Respondents could have accessed their property, including an existing road. Lee testified that in addition to the road on Kelley's land, he and his father also use another road to access their property, which traverses some additional land they purchased.

Kelley filed a complaint on June 4, 2008, alleging Respondents had created a twenty-foot private roadway on his property without his permission, and he had given notice to Respondents to cease using his property for any purpose. He sought an injunction to restrain Respondents from using the property and trespassing on his land. Respondents filed an answer, asserting as a counterclaim that Respondents had purchased property from the Rasts, which included a conveyance of “[a]ll our right, title and interest in an easement or right-of-way for ingress and egress over, along and through a 20–foot access road from the property herein described to U.S. Highway No. 178.” Additionally, Respondents asserted they had used the road in an open and hostile manner continuously since purchasing the property in 1989; therefore, Respondents sought a declaratory judgment that they obtained a prescriptive easement over the road. The matter was referred to a master in equity by a consent order of reference, and the master granted Respondents “a prescriptive easement to use the twenty (20)-foot roadway in question ... for purposes of ingress and egress to their property.” ⁷ Kelley filed a motion to reconsider, which the master denied. This appeal followed.

STANDARD OF REVIEW

“The determination of the existence of an easement is a question of fact in a law action and subject to an any evidence standard of review when tried by a judge without a jury.” Pittman v. Lowther, 363 S.C. 47, 50, 610 S.E.2d 479, 480 (2005). “In an action at law, on appeal of a case tried without a jury, the findings of fact of the judge will not be disturbed upon appeal unless found to be without evidence which reasonably supports the judge's findings.” Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775(1976).

LAW/ANALYSIS

Kelley argues the master erred in ruling Respondents had a prescriptive easement under a claim of right and pursuant to an adverse use for a period of twenty years.⁸

An easement is a right given to a person to use the land of another for a specific purpose. Murrells Inlet Corp. v. Ward, 378 S.C. 225, 232, 662 S.E.2d 452, 455 (Ct.App.2008). An easement may arise in three ways: (1) by grant; (2) from necessity; and (3) by prescription. Frierson v. Watson, 371 S.C. 60, 67, 636 S.E.2d 872, 875 (Ct.App.2006). “A prescriptive easement is not implied by law but is established by the conduct of the dominant tenement owner.” Boyd v. BellSouth Tel. Tel. Co., 369 S.C. 410, 419, 633 S.E.2d 136, 141 (2006). To establish a prescriptive easement, the party asserting the right must show: (1) continued and uninterrupted use of the right for twenty years; (2) the identity of the thing enjoyed; and (3) use which is either adverse or under a claim of right. Horry Cnty. v. Laychur, 315 S.C. 364, 367, 434 S.E.2d 259, 261 (1993). “To establish an easement by prescription, one need only establish either a justifiable claim of right or adverse and hostile use.” Jones v. Daley, 363 S.C. 310, 316, 609 S.E.2d 597, 600 (Ct.App.2005) (emphasis added). There is no requirement of exclusivity of use to establish a prescriptive easement. Id. at 317, 609 S.E.2d at 600. The party claiming a prescriptive easement bears the burden of proving all of the elements. Morrow v. Dyches, 328 S.C. 522, 527, 492 S.E.2d 420, 423 (Ct.App.1997).

I. Identity

Kelley concedes the identity of the roadway, the second element necessary to establish a right by prescription. Therefore, we need not address this element. II. Continuous and Uninterrupted

Kelley does not specifically challenge the master's finding that Respondents' use of the road was continuous and uninterrupted, the first element necessary to establish a right by prescription. “[I]n order to satisfy the continual use requirement, the use must only be of a reasonable frequency as determined from the nature and needs of the claimant.” Jones, 363 S.C. at 318, 609 S.E.2d at 601. “When the claimant has established that the use was open, notorious, continuous, and uninterrupted, the use will be presumed to have been adverse.” Boyd, 369 S.C. at 419, 633 S.E.2d at 141.

Although Respondents' need for using the road has evolved over time, testimony indicates Respondents used the road with reasonable frequency for each of those needs. Lee testified he began using the road in 1978 or 1979 for hunting purposes. He did not explicitly state how often he used the road for hunting; however, the fact that he was a member of a hunting club that used the road suggests he used it with reasonable frequency to hunt. Lee further testified that after he bought the property in 1989, he kept dogs on his land and used the road to get to the dogs. In order to care for his dogs, Lee had to have used the road frequently. Finally, Lee testified that when he moved to his land in 1991 or 1992, he used the road to get to his house.

The record also supports the master's finding that Respondents' use of the road was uninterrupted during the prescriptive period. The servient owner may interrupt the prescriptive period by engaging in “overt acts, such as erecting physical barriers, which cause a discontinuance of the dominant landowner's use of the land, no matter how brief.” Pittman, 363 S.C. at 52, 610 S.E.2d at 481. “In addition to physical barriers, verbal threats which convey to the dominant landowner the impression the servient landowner does not acquiesce in the use of the land, are also sufficient to interrupt the prescriptive period.” Id. Respondents testified Kelley did not prevent them from using the road, and Harry testified the only obstruction he has ever seen on the road is the gate they erected. Although Kelley asked Respondents to move the gate, there is no indication that Kelley's request conveyed to Respond...