Pendarvis v. Pendarvis

• Decision Date: 17 February 2011
• Docket Number: No. 4793.,4793.
• Citation: 706 S.E.2d 520,391 S.C. 528
• Court: South Carolina Court of Appeals
• Parties: Richard M. PENDARVIS and Thomas A. Pendarvis, Respondents,v.Jewell K. COOK a/k/a Judy Pendarvis, Appellant.

391 S.C. 528

706 S.E.2d 520

Richard M. PENDARVIS and Thomas A. Pendarvis, Respondents,

v.Jewell K. COOK a/k/a Judy Pendarvis, Appellant.

No. 4793.

Court of Appeals of South Carolina.

Heard Dec. 8, 2010.Decided Feb. 17, 2011.

David Jay Parrish, of Charleston, for Appellant.A. Parker Barnes, Jr., and Thomas A. Pendarvis, both of Beaufort, for Respondents.

FEW, C.J.

Jewell Cook appeals the master's order granting Respondents Thomas and Richard Pendarvis an easement over a portion of a private road that was recently discovered to cross onto her land. The master granted an easement under the theories of prescriptive easement and easement implied by prior use. We affirm the trial court's order granting an easement implied by prior use.

I. Facts and Procedural History

Respondents are brothers whose stepgrandfather, Irvin Tavel, owned property on Peters Point Road on Edisto Island. Respondents grew up camping, hunting, and fishing on the property with Tavel. By June 1972, Tavel built a road across the property to provide access from Peters Point Road to the other side of the property bordering Sandy Creek.¹ Respondents helped Tavel build, repair, and maintain the road. In 1974, Tavel divided the property into two tracts. He retained the eastern tract A for himself and conveyed tract B to his wife to hold in trust for Respondents, who were eleven and twelve years old. Ann Pendarvis, Respondents' mother, testified that Tavel “wanted [Respondents] to have that property and to build and keep it up[,] ... to do a lot of the work. Every time [they] went to visit, they would haul sea shells, or stone and dirt, whatever, across the road in a wagon or a go-cart to fill in the muddy spaces, the marsh.” In addition to holding the land in trust for Respondents, their grandmother opened a trust account named “Sandy Creek—T & R Pendarvis” for the benefit of maintaining the land. Money from the account was used for various maintenance of the road in the mid– to late–1970s. In 1977, Tavel deeded tract A to Respondents' father, J.M. “Butch” Pendarvis.

The portion of the road at issue in this case is a causeway located over wetlands. Thomas Pendarvis testified that Tavel's choice of location for the causeway was affected by the water levels in the marsh at high tide in the early 1970s, and, specifically, that the causeway was redirected to its present location and “placed at the closest point between the high land areas.” When asked if the causeway could have been placed in another location, Thomas Pendarvis answered that putting the causeway at the most narrow part of the wetlands was the practical, reasonable, and economically efficient choice made by Tavel at the time.

This dispute arose in 2002 when Cook, Respondents' stepmother, received title to tract A from Butch in a divorce settlement. A drawing completed as part of an appraisal Cook ordered showed that the causeway portion of the road encroached onto tract A. Respondents were unaware of the encroachment until Butch told them that he saw survey flags on the property in early 2003. Before these events, Respondents and Cook believed the road was located entirely on tract B. Respondents now claim an easement over the portion of the road crossing onto tract A.

Respondents filed this action seeking a declaratory judgment for either an easement by necessity or prescription, but later filed an amended complaint substituting an easement by prior use cause of action for easement by necessity. Cook appeals the master's order declaring “that Plaintiffs are entitled to an Easement under either or both theories” of prescriptive easement or easement by prior use. She also appeals the master's acceptance of a plat submitted by Respondents after trial and his use of the plat to define the scope of the easement.

II. Easement Implied by Prior Use

In Boyd v. BellSouth Telephone Telegraph Co., 369 S.C. 410, 633 S.E.2d 136 (2006), our supreme court set out seven elements a plaintiff must prove in order to establish an easement implied by prior use.

The party asserting the right to an easement implied by prior use must establish the following: (1) unity of title; (2) severance of title; (3) the prior use was in existence at the time of unity of title; (4) the prior use was not merely temporary or casual; (5) the prior use was apparent or known to the parties; (6) the prior use was necessary in that there could be no other reasonable mode of enjoying the dominant tenement without the prior use; and (7) the common grantor indicated an intent to continue the prior use after severance of title.

369 S.C. at 417, 633 S.E.2d at 139.

Cook disputes the master's finding of an easement implied by prior use by arguing that elements five, six, and seven are not met. As to element six, she contends it was not necessary for the causeway to be in its present location. She combines elements five and seven to argue that Tavel could not have intended to continue the prior use of part of tract A when the encroachment onto it was not apparent or known to him. “The determination of the existence of an easement is a question of fact in a law action, ... and this Court reviews factual issues relating to the existence of an easement under a highly deferential standard.” Inlet Harbour v. S.C. Dep't of Parks, Recreation & Tourism, 377 S.C. 86, 91, 659 S.E.2d 151, 153 (2008) (internal citation omitted) (citing Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 776 (1976) (providing that questions of fact in a law action are generally reviewed under the “any evidence” standard)). We find evidence in the record to support the master's conclusion that these elements are satisfied.

A. Necessity

The element of necessity was a primary issue in Boyd. The plaintiff sought an easement over a driveway across BellSouth's property that provided the only access to the rear entrance of her antique store. 369 S.C. at 414, 633 S.E.2d at 138. The special referee granted BellSouth's motion for summary judgment on the claim for easement implied by prior use, finding specifically that the plaintiff did not meet the element of necessity. 369 S.C. at 416, 633 S.E.2d at 139. This court reversed the special referee, finding “evidence exists within the record indicating use of the driveway to access the rear doors was necessary for the enjoyment of Boyd[']s property.” Boyd v. BellSouth Tel. Tel. Co., 359 S.C. 209, 215, 597 S.E.2d 161, 164 (Ct.App.2004). In its decision affirming this court as to that issue, the supreme court considered what “necessity” requires in the context of an easement implied by prior use. 369 S.C. at 420–22, 633 S.E.2d at 141–42. The supreme court explained that the party seeking the easement need not prove that the prior use was absolutely necessary. 369 S.C. at 421, 633 S.E.2d at 141 (citing 28A C.J.S. Easements § 72). Rather, “necessity means ‘there could be no other reasonable mode of enjoying the dominant tenement without this easement.’ ” Id. (quoting Crosland v. Rogers, 32 S.C. 130, 133, 10 S.E. 874, 875 (1890)). Applying that definition to the facts of Boyd, the court acknowledged it was possible for the plaintiff to put in another driveway; however, it found “the evidence also indicat[ed] an alternative driveway to the building would be infeasible, impractical, and very costly.” 369 S.C. at 422, 633 S.E.2d at 142.

This court addressed an easement implied by prior use in Hynes Family Trust v. Spitz, 384 S.C. 625, 682 S.E.2d 831 (Ct.App.2009). In that case, the plaintiff positioned his storm drainage system to discharge water onto the neighboring defendant's backyard, and then sought an easement implied by prior use. 384 S.C. at 627, 682 S.E.2d at 832. This court upheld the trial court's finding that the necessity element was not met, and explained: “Evidence in the record indicates Hynes could have discharged his gutter water onto his own property without unreasonable burden or expense.” 384 S.C. at 633, 682 S.E.2d at 835. Applying the definition of necessity from Boyd, this court found the plaintiff failed to satisfy the necessity element because an alternative could be employed “without unreasonable burden or expense.” Id.

The Boyd and Spitz courts' application of the definition of necessity to the facts of those cases provides us context in which to determine the sufficiency of the evidence in this case. The master found:

It would necessarily have cost more money, taken greater effort, and therefore would have been impractical in 1974 to construct, move, or relocate the causeway portion and immediately preceding portion of the Access Road further over to the west on Tract B because the causeway would have needed to be much longer and therefore would have cost more money and taken greater effort to build.

There is evidence in the record to support this finding of necessity. The road was the only one in existence in 1974 and remains the only route a vehicle may take from Peters Point Road to Sandy Creek over thirty years later. Thomas Pendarvis testified the causeway's location was dictated by the high land areas in the marsh and that Tavel's choice of location was economically efficient. Cook's argument that the causeway was not the only “ reasonable mode of gaining access to and enjoying the property,” but rather “ the causeway was located where it was out of convenience and not out of necessity,” incorrectly focuses on whether there were other suitable locations available for the causeway before 1972 when Tavel built it. As the supreme court stated in Boyd, “[t]he necessity element of easement implied by prior use must be determined at the time of the severance.” 369 S.C. at 421, 633 S.E.2d at 141. The master properly focused on the fact that the road already existed in 1974 when Tavel divided the property. The master then properly considered whether the alternative of building a new road entirely on tract B was feasible, practical, and cost efficient. See Boyd...