Paine Gayle Props., LLC v. CSX Transp., Inc., Appellate Case No. 2010-178026

CourtCourt of Appeals of South Carolina
Writing for the CourtGEATHERS
PartiesPaine Gayle Properties, LLC, Appellant, v. CSX Transportation, Inc., Respondent.
Docket NumberOpinion No. 5049,Appellate Case No. 2010-178026
Decision Date14 November 2012

Paine Gayle Properties, LLC, Appellant,
CSX Transportation, Inc., Respondent.

Appellate Case No. 2010-178026
Opinion No. 5049


Heard September 12, 2012
Filed November 14, 2012

Appeal from McCormick County
Clifton Newman, Circuit Court Judge


G.P. Callison, Jr., of Callison Dorn Law Firm, of
Greenwood, for Appellant.

Elizabeth A. McLeod, of Fulcher Hagler, LLP, of
Augusta, Georgia, for Respondent.

GEATHERS, J.: Appellant Paine Gayle Properties, LLC (Landowner) brought this action against Respondent CSX Transportation, Inc. (Railroad), seeking an order establishing an easement across a right-of-way held by Railroad. Landowner and Railroad filed cross-motions for summary judgment, and the circuit court granted summary judgment to Railroad. Landowner seeks review of this order. We affirm.

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On May 31, 1995, Richard R. Gayle, a member of Landowner, purchased from Wayne King a fifteen-acre tract of land in McCormick County adjacent to the Savannah River (the Property).1 On the same date, Gayle conveyed a one-half interest in the Property to Travers W. Paine, III, Landowner's other member. On January 1, 2003, Paine and Gayle individually conveyed the Property to Landowner.

The Property is bounded on the north and east by a two-hundred-foot right-of-way held by Railroad, which extends south to the river bank. Pollard Lumber Company (Pollard) owns the land to the immediate north and east of Railroad's right-of-way. The record is unclear as to who owns fee simple title to the land underlying Railroad's right-of-way,2 although it is clear from the legal descriptions of their respective properties that neither Landowner nor Pollard owns title to the underlying land.

The Property can be accessed by watercraft via the Savannah River. However, the only motor vehicle access for the Property is a gravel roadway that runs beneath Railroad's trestle (the access road). Pollard granted an easement to Landowner across the southwesterly part of its land, which runs adjacent to Railroad's right-of-way, for the purpose of constructing an improved right-of-way for ingress and egress; the access road running beneath the trestle picks up where the easement granted by Pollard terminates.

Railroad uses the access road whenever repair work on the trestle is necessary. The distance from the bottom of the trestle to the underlying access road is twelve feet, two inches at the highest point. The width of the useable part of the access road is eleven feet, two inches, at its widest point.

Since purchasing the Property, Paine and Gayle have used the access road to visit the Property, to harvest timber from the Property, and to build a cabin on the Property. In 2001, Paine paid South Carolina Electric & Gas Company (SCE&G) $5,147 to obtain a utility easement from Railroad for the purpose of running electrical lines through Railroad's right-of-way to the cabin on the Property. This

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amount included $2,872 to be paid to Railroad for the easement and $2,275 for SCE&G to install the service lines under Railroad's tracks.

Landowner also obtained permission from Railroad's security officer, Steve Purvis, to build a gate across the access road to keep out trespassers. Purvis acknowledged that the gate helped Railroad guard against potential liability for trespasser injuries. Landowner and Railroad possessed keys to the locks on the gate.

In 2004, Paine and Gayle appeared before the McCormick County Planning Commission (the Commission) to present Landowner's plans for a small subdivision on the Property. In his deposition, Paine testified that Landowner had paid its engineers approximately $35,000 for the plans and drawings. The Commission indicated that Landowner would have to obtain a written easement from Railroad to cross its right-of-way in order to run a water line into the subdivision. Landowner's efforts to speak with a Railroad employee with authority to grant the easement were unsuccessful. Subsequently, Landowner filed the present action, seeking an order recognizing its alleged right to cross Railroad's right-of-way to access the Property.3

In its amended complaint, Landowner asserted the following causes of action: "Easement by Grant," "Easement by Implication," "Easement by Prescription," "Easement by Necessity," "Adverse Possession," "Equitable Estoppel," "Laches," and "General Law of Easements." Landowner and Railroad filed cross-motions for summary judgment, and the circuit court granted summary judgment to Railroad, while denying Landowner's summary judgment motion.

In its order granting summary judgment to Railroad, the circuit court recognized that the ownership of the strip of land underlying Railroad's right-of-way was unclear. The circuit court, however, concluded that Landowner did not own the fee underlying Railroad's right-of-way.4 The circuit court further indicated that due to Landowner's failure to establish at least one essential element of each of its causes of action, Railroad was entitled to judgment as a matter of law. This appeal followed.

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1. Did the circuit court err in granting summary judgment to Railroad on the issue of easement by equitable estoppel?

2. Did the circuit court err in granting summary judgment to Railroad on the prescriptive easement claim?

3. Did the circuit court err in granting summary judgment to Railroad on the issue of laches?

4. Did the circuit court err in granting summary judgment to Railroad on the issue of easement by necessity?


This court reviews the grant of a summary judgment motion under the same standard applied by the trial court pursuant to Rule 56(c), SCRCP. Jackson v. Bermuda Sands, Inc., 383 S.C. 11, 14 n.2, 677 S.E.2d 612, 614 n.2 (Ct. App. 2009). Rule 56(c), SCRCP, provides that summary judgment shall be granted when "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 and that the moving party is entitled to a judgment as a matter of law." "The purpose of summary judgment is to expedite the disposition of cases not requiring the services of a fact finder." Matsell v. Crowfield Plantation Cmty. Servs. Ass'n, Inc., 393 S.C. 65, 70, 710 S.E.2d 90, 93 (Ct. App. 2011) (citing George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001)).

An adverse party may not rely on the mere allegations in his pleadings to withstand a summary judgment motion, but must set forth specific facts showing there is a genuine issue for trial. Strickland v. Madden, 323 S.C. 63, 68, 448 S.E.2d 581, 584 (Ct. App. 1994). Nonetheless, "in cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment." Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009).

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I. Railroad Rights-of-Way

To foster a complete understanding of the parties' respective rights, we begin our analysis of the issues in this case by explaining the nature of railroad rights-of-way. Ultimately, however, the precise nature of the estate held by Railroad in the strip of land underlying its right-of-way does not affect our analysis of Landowner's easement claims.

"The term 'right-of-way,' as used in deeds, has dual meanings: it is sometimes used to describe the right belonging to a party allowing passage over any tract and is also used to describe that strip of land that railroad companies take upon which to construct their road-bed." 65 Am. Jur. 2d Railroads § 31 (2012). Likewise, the term can have two purposes: (1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land, i.e., an easement; or (2) to describe the strip of land being conveyed to a railroad for the purpose of building a railway. Id. A railroad can acquire real property for railway operations only pursuant to a statute, and "when so authorized, a railroad may acquire an interest in real property by eminent domain, by purchase, or by voluntary grant." Id. at § 33.

A railroad right-of-way allows a railroad company "the free and perfect use of the surface of the land as far as is necessary for all its purposes, and the right to use as much above and below its surface as may be needed." Id. at § 66 (emphasis added). A railroad right-of-way has been described as "an easement with the substantiality of a fee and the attributes of a fee, perpetuity, and exclusive use and possession . . . ." Id. at § 62.

Here, the statute chartering Railroad's predecessor in interest, the Greenwood and Augusta Railroad Company, states that the Company "shall have the same presumptive right and title, and to the same extent, to lands through which their railroad may be built, in absence of any agreement with the proprietor . . . of such lands, which is possessed or enjoyed by any other railroad, in [South Carolina and Georgia], as to the lands through which their railroad may have been, or may be, constructed, in absence of any contract with...

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