Kelley v. Snyder, Opinion No. 4929

CourtCourt of Appeals of South Carolina
Writing for the CourtSHORT
PartiesThelease Kelley, Appellant, v. Lee Dewayne Snyder and Harry L. Snyder, Respondents.
Docket NumberOpinion No. 4929
Decision Date25 January 2012

Thelease Kelley, Appellant,
Lee Dewayne Snyder and Harry L. Snyder, Respondents.

Opinion No. 4929


Heard: December 5, 2011
Filed: January 25, 2012

Appeal From Orangeburg County
Olin D. Burgdorf, Circuit Court Judge


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 Snyder1 (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.


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.


"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).


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...

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