Pittman v. Lowther, 3669.

• Citation: 355 S.C. 536,586 S.E.2d 149
• Decision Date: 04 August 2003
• Docket Number: No. 3669.,3669.
• Court: Court of Appeals of South Carolina
• Parties: Harold PITTMAN, Respondent, v. C.E. LOWTHER, Appellant.

355 S.C. 536

586 S.E.2d 149

Harold PITTMAN, Respondent, v. C.E. LOWTHER, Appellant.

No. 3669.

Court of Appeals of South Carolina.

Heard March 12, 2003.

Decided August 4, 2003.

Rehearing Denied September 17, 2003.

H. Fred Kuhn, Jr., of Beaufort, for Appellant.

Darrell T. Johnson, Jr., of Hardeeville, for Respondent.

STILWELL, J.:

C.E. Lowther appeals the order of the circuit court granting a private prescriptive easement across his land to Harold Pittman. We reverse.

FACTS/PROCEDURAL BACKGROUND

Weldon Wall purchased Good Hope Plantation from Good Hope Corporation. At that time, a very old system of trails and plantation roads traversed the entire tract. One such plantation road was Wellington Road, leading into the plantation from U.S. Highway 278. The entire road system was shown on the plat referenced in the deed. In 1973, Wall subdivided Good Hope into two parcels: Parcel A consisting of 2,340.8 acres and Parcel B containing 661.33 acres. Wall sold Parcel A to Pittman. The plat referenced in this deed did not show Wellington Road or any of the other plantation roads.

Mary Wilcox later purchased Parcel B at a foreclosure sale. Wilcox assigned a portion of her bid on Parcel B to Pittman and in 1975 Pittman purchased 279 acres out of Parcel B. Pittman converted a hunting lodge located on the property into a home. This property was referred to in the testimony as the "house tract." On three sides, the "house tract" was bordered by the 2,340.8 acre parcel already owned by Pittman. The remaining portion of Parcel B, held by Wilcox, abutted the fourth side of the tract. The "house tract" did not abut any public road. Both Parcel A and Wilcox's land abutted U.S. Highway 278.

Since May of 1973, Pittman used Wellington Road to travel from Highway 278 to a trailer on Parcel A. At the time he purchased the "house tract" in 1975, his only access to that property was also Wellington Road.¹ After the 1975 purchase, Pittman continued to use Wellington Road to reach Parcel A and as a driveway to his home on the "house tract." A portion of the road passed over Wilcox's land before it joined U.S. Highway 278.

Wilcox sold her remaining portion of Parcel B consisting of 312.11 acres to Lowther in 1976. About five or six years later, Lowther began to place obstacles in Wellington Road in an effort to close the portion which traversed his property.² Pittman either drove around the obstacles or cut or pushed them down to travel the road to Highway 278. This scenario was repeated numerous times.

Pittman stopped using the road for approximately four or five months in 1992 while a mutual friend attempted to mediate the dispute. After the friend told Pittman his settlement attempts were unsuccessful, Pittman promptly pushed up the wires and cables across the road and continued to travel across it to Highway 278. In the early fall of 1997, Lowther requested his attorney write to Mr. Pittman and instruct him to stay off his property and the disputed section of the road. Pittman ignored the letter and destroyed the barriers blocking the road. Lowther called a deputy sheriff out to observe the damage and instruct Pittman to stay off of his land. This litigation ensued.

The original Wellington Road and a separate, newer county road, some 200 feet farther up, run roughly parallel to one another leading off Highway 278 into the old Good Hope land and towards the Lowther and Pittman properties. About 300 feet from Highway 278, the new county road merges into the original Wellington Road and runs for some unknown distance to the edge of a particular lot belonging to Lowther. Lowther dedicated this portion of Wellington Road to the county. A final portion of the original road continues on for another 168 feet running along the edge of Lowther's property until it meets the gate to Pittman's "house tract." It is this last 168 feet of Wellington Road that remains in controversy.³

Pittman brought an action to declare an easement by prescription, necessity, or dedication across 168 feet of Wellington Road running through Lowther's land. After a bench trial, the court issued an order granting Pittman a private prescriptive easement over Wellington Road providing access to Highway 278 across Lowther's property.

LAW/ANALYSIS

I. Continuous and Uninterrupted Use

Lowther argues the trial court erred in concluding Pittman established a private prescriptive easement because the evidence does not support a factual finding that Pittman's adverse use was continuous and uninterrupted. Because the trial court reached inconsistent factual findings, it erred in concluding Pittman's use was continuous and uninterrupted during the alleged prescriptive period.⁴

"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." Slear v. Hanna, 329 S.C. 407, 410, 496 S.E.2d 633, 635 (1998). The trial court relied upon the following standard set forth in Morrow v. Dyches, 328 S.C. 522, 492 S.E.2d 420, 423 (Ct.App.1997) to find that Pittman should be granted a prescriptive easement. "To establish a prescriptive easement, one must show: (1) continued use for 20 years, (2) the identity of the thing enjoyed, and (3) use which is adverse or under claim of right." Id. (citing Horry County v. Laychur, 315 S.C. 364, 434 S.E.2d 259 (1993)). Laychur, however, emphasized as to the first prerequisite not only that there must be a continued use for twenty years, there must be "continued and uninterrupted use or enjoyment of the right for a period of 20 years." Laychur, 315 S.C. at 368, 434 S.E.2d at 261 (emphasis added).⁵ The uninterrupted requirement is the focal point here.

The trial court's order stated the only interruption in Pittman's use of the challenged portion of Wellington Road was during the failed mediation. However, the court also found Pittman had broken open more than $2,000 worth of barriers costing approximately $200 each "exercising his perceived right to use the road." The barriers the trial court mentioned were erected by Lowther specifically for the purpose of preventing Pittman from utilizing the roadway, and not merely for Lowther's own use or convenience. On direct examination, Mr. Pittman was asked if he had used the road uninterruptedly from the time he bought the tract, and he responded, "Not completely." He stated that five or six years after the Lowthers bought the adjoining property, they started putting obstacles in the way trying to close the road, but that he "pushed them down or went around them...." He also testified the Lowthers later "put up gates and put up cables," but after the attempted mediation failed, he pushed down the wire and cable the Lowthers had erected across the road.

Mitchell Lowther testified regarding efforts made to prevent Pittman from using the road. In addition to setting posts and bolting cables across it, the road was plowed every year and planted with rye a couple of years. Lowther testified he tried to be a good neighbor and, when he found Pittman had driven around a cable or pushed a cable down, he would calmly put the cable back up to try to cause as little problem as possible. Nevertheless, he eventually reported Pittman's actions to law enforcement and had a deputy come see where Pittman had used his tractor to not only push over posts and cables, but uproot a couple of small trees and scrape the road with his tractor. Pittman stipulated that he had done so.

Lowther's repeated attempts to prevent Pittman from crossing Lowther's land constitute interruptions, however brief, in Pittman's use and enjoyment of that portion of...