Simmons v. Berkeley Elec. Coop., Inc.

• Citation: 419 S.C. 223,797 S.E.2d 387
• Decision Date: 02 November 2016
• Docket Number: Opinion No. 27674,Appellate Case No. 2013–001477
• Court: United States State Supreme Court of South Carolina
• Parties: Roosevelt SIMMONS, Petitioner, v. BERKELEY ELECTRIC COOPERATIVE, INC. and St. John's Water Company, Inc., Respondents.

419 S.C. 223

797 S.E.2d 387

Roosevelt SIMMONS, Petitioner,

v.BERKELEY ELECTRIC COOPERATIVE, INC. and St. John's Water Company, Inc., Respondents.

Appellate Case No. 2013–001477

Opinion No. 27674

Supreme Court of South Carolina.

Heard October 20, 2015

Filed November 2, 2016

Rehearing Denied April 4, 2017

Edward A. Bertele, of Charleston, for Petitioner.

John B. Williams and J. Jay Hulst, both of Williams & Hulst, L.L.C., of Moncks Corner; Gaines W. Smith and Jeffrey C. Moore, both of Legare, Hare & Smith, of Charleston, all for Respondents.

ACTING CHIEF JUSTICE BEATTY:

In this property dispute concerning utility easements, we granted Roosevelt Simmons' petition for a writ of certiorari to review the Court of Appeals' decision in Simmons v. Berkeley Electric Cooperative , 404 S.C. 172, 744 S.E.2d 580 (Ct. App. 2013). Simmons asserts the Court of Appeals erred in affirming the master-in-equity's grant of summary judgment in favor of St. John's Water Company, Inc. ("St. John's Water") on the basis that it had established a prescriptive easement. Simmons further asserts the Court of Appeals erred in affirming the master's grant of summary judgment in favor of Berkeley Electric Cooperative, Inc. ("Berkeley Electric") on the grounds that it had been granted an express easement and that it had established a prescriptive easement to maintain the power lines in their current configuration. We affirm in part, reverse in part, and remand.

I. Factual/Procedural History

In 2003, Simmons acquired title to two parcels of land, TMS # 283–00–00–498 ("Tract 498") and TMS # 282–00–00–135 ("Tract 135"). Both parcels are undeveloped, wooded, and located along Kitford Road on Johns Island. The parcels are separated by an abandoned railroad right-of-way and were previously part of a larger tract owned by two of Simmons' predecessors-in-title, Edward Heyward and E.C. Brown. In 1956, Heyward granted an easement to Berkeley Electric to construct and maintain transmission lines over what is now Tract 498 and Tract 135. In 1972, Brown granted an easement to Berkeley Electric to construct and maintain distribution lines over Tract 498.

In 1977, Charleston County issued an encroachment permit authorizing St. John's Water to install a water main along Kitford Road pursuant to an accompanying map that illustrated the water main's approved location. St. John's Water finished construction on the water main in 1978. In 2005, Simmons discovered a water meter under bushes on Tract 135. Simmons subsequently contacted St. John's Water, which informed Simmons that it would not move the water main because it believed it had an easement giving it the right to use the property. St. John's Water based its belief on the encroachment permit and its understanding that the water main had been in its current location for more than twenty years. Pursuant to a request by Simmons, St. John's Water "blue-flagged" the property. The blue flags showed the water main crossing both Tract 135 and Tract 498.¹

In 2008, Simmons commenced this action against Berkeley Electric and St. John's Water alleging trespass and unjust enrichment. Specifically, Simmons alleged Berkeley Electric and St. John's Water trespassed on his property by constructing, placing, and maintaining unauthorized power and water lines. In doing so, Simmons claimed Berkeley Electric and St. John's Water had been "furnished with a non-gratuitous and valuable benefit without paying for its reasonable value." Simmons also sought a declaration that neither utility company had property interests or rights to his property.

Both Berkeley Electric and St. John's Water moved for summary judgment. After presiding over the summary judgment hearings, the master granted both motions for summary judgment. With respect to Berkeley Electric, the master determined any transmission and distribution lines over Simmons' property were permitted under the 1956 and 1972 easements. To the extent the lines were not within the scope of the express easements, the master found Berkeley Electric established a prescriptive easement to the lines in their current configuration. As to St. John's Water, the master determined the encroachment permit served as an express easement granting St. John's Water the right to use Simmons' property to construct the water main. To the extent that the water main was not covered under the express easement, the master held St. John's Water established a prescriptive easement to maintain the water main in its current configuration. Simmons appealed.

The Court of Appeals affirmed the master's grant of summary judgment in favor of Berkeley Electric, finding Berkeley Electric did not exceed the scope of the express easements. Simmons , 404 S.C. at 179–80, 744 S.E.2d at 584–85. In addition, the Court of Appeals affirmed the master's finding that Berkeley Electric established a prescriptive easement for the power lines in their current configuration. Id . at 181–82, 744 S.E.2d at 585–86. As to St. John's Water, the Court of Appeals affirmed the master's grant of summary judgment in favor of St. John's Water on the basis that it established a prescriptive easement, but reversed the master's finding that it had an express easement after determining Charleston County lacked the authority to grant a right to use property owned by another. Id. at 183–85, 744 S.E.2d at 586–87. The Court of Appeals remanded the action to the master for a determination of whether there are additional water lines under Simmons' property. Id. at 185, 744 S.E.2d at 587. We granted Simmons' petition for a writ of certiorari following the Court of Appeals' denial of his petition for rehearing.

II. Standard of Review

When reviewing the grant of a summary judgment motion, this Court applies the same standard that governs the trial court under Rule 56(c), SCRCP, which provides that summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fleming v. Rose , 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002) ; Rule 56(c), SCRCP. "When determining if any triable issues of fact exist, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party." Fleming , 350 S.C. at 493–94, 567 S.E.2d at 860.

III. Discussion

A. St. John's Water

Simmons asserts the Court of Appeals erred in affirming the master's grant of summary judgment in favor of St. John's Water. We agree.

"An easement is a right given to a person to use the land of another for a specific purpose." Bundy v. Shirley , 412 S.C. 292, 304, 772 S.E.2d 163, 169 (2015). "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 claimant must prove by clear and convincing evidence: "(1) the continued and uninterrupted use or enjoyment of the right for a period of 20 years; (2) the identity of the thing enjoyed; and (3) the use [was] adverse under claim of right." Darlington Cnty. v. Perkins , 269 S.C. 572, 576, 239 S.E.2d 69, 71 (1977). "[W]hen it appears that claimant has enjoyed an easement openly, notoriously, continuously, and uninterruptedly, in derogation of another's rights, for the full period of 20 years, the use will be presumed to have been adverse." Williamson v. Abbott , 107 S.C. 397, 400, 93 S.E. 15, 16 (1917). "[A] party claiming a prescriptive easement has the burden of proving all elements by clear and convincing evidence." Bundy , 412 S.C. at 306, 772 S.E.2d at 170.

In Horry County v. Laychur , this Court articulated the third element of a prescriptive easement as requiring the claimant's use to be "adverse or under a claim of right." 315 S.C. 364, 367, 434 S.E.2d 259, 261 (1993). In relying on this language, the Court of Appeals has recognized two methods of proving the third element: one established through "adverse use" and one through a "claim of right."² According to the Court of Appeals, "[t]o 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). Therefore, if a claimant cannot prove the elements of adverse use, then, under the Court of Appeals' approach, the claimant could establish a prescriptive easement under a claim of right. "[I]n order for a party to earn a prescriptive easement under claim of right he must demonstrate a substantial belief that he had the right to use the [property] based upon the totality of circumstances surrounding his use." Hartley v. John Wesley United Methodist Church of Johns Island , 355 S.C. 145, 151, 584 S.E.2d 386, 389 (Ct. App. 2003).

Here, the Court of Appeals determined "St. John's Water established the water main was installed under a claim of right." Simmons , 404 S.C. at 184, 744 S.E.2d at 587. To support its determination, the Court of Appeals relied on an affidavit of Hugh S. Miley, an engineer involved in the design, permitting, and construction of the water main. Id. In his affidavit, Miley attested that: Charleston County issued an encroachment permit for the water main; construction on the water main began in 1977 and was completed in 1978; and that, to the best of his knowledge, the water main has been used continuously and uninterruptedly for more than twenty years. The Court of Appeals found "Miley's affidavit demonstrates his belief that the encroachment permits obtained from Charleston County covered the installation of the water main as illustrated on the map." Id. The Court of Appeals continued, stating "[t]he fact the claim may have been based on a mistake does not negate the claim of right required to establish a prescriptive easement." Id.

As a threshold matter, we hold the Court of Appeals erred in recognizing two methods of proving the third element of a...