Simmons v. Berkeley Electric Coop. Inc., Appellate Case No. 2011-192409

CourtCourt of Appeals of South Carolina
Writing for the CourtKONDUROS
PartiesRoosevelt Simmons, Appellant, v. Berkeley Electric Cooperative Inc., and St. John's Water Company, Inc., Respondents.
Decision Date20 March 2013
Docket NumberAppellate Case No. 2011-192409,Opinion No. 5099

Roosevelt Simmons, Appellant,
Berkeley Electric Cooperative Inc.,
and St. John's Water Company, Inc., Respondents.

Appellate Case No. 2011-192409
Opinion No. 5099


Heard January 8, 2013
Filed March 20, 2013

Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity


Edward A. Bertele, of Charleston, for Appellant.
John B. Williams, of Williams & Hulst, LLC, of Moncks Corner, for Respondent Berkeley Electric Cooperative, Inc., and Jeffrey C. Moore, of Legare Hare & Smith, of Charleston, for Respondent St. Johns Water Company, Inc.

KONDUROS, J.: Roosevelt Simmons appeals the master-in-equity's grant of summary judgment in favor of Berkeley Electric Cooperative, Inc. (Berkeley Electric) and St. John's Water Company, Inc. (St. Johns Water) in this action regarding utility easements over his property. We affirm in part, reverse in part, and remand.

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In 2003, Simmons acquired title to two parcels of land in Charleston County, TMS #283-00-00-4981 and TMS #282-00-00-135. The two parcels are separated by Kitford Road. In 1956, Simmons's predecessor in interest, Edward Heyward, granted a seventy-five-feet-wide easement to Berkeley Electric for the "construction and maintenance of an electric transmission line or lines, towers, poles, anchors and necessary fixtures and wires attached thereto . . . ." The easement runs north to south over the northeast corner of -498. In 1972, a subsequent owner of the property, Edward Brown, granted Berkeley Electric a second easement "to place, construct, operate, repair, maintain, relocate, and replace thereon in or upon all streets, roads, or highways abutting said lands and electric transmission or distribution line or system . . . " This easement gave permission to again cross -498. According to Simmons, power lines cross -135 twice and -498 twice and unreasonably affect his ability to sell or use his property.

St. John's Water installed a water main along Kitford Road between 1977 and 1978 to service customers in that area. The water main was placed there after the water company sought and was granted an encroachment permit from Charleston County. A portion of the water main runs under -498. Simmons stated that in 2003 he was walking on -135 when he discovered water meters. This prompted him to contact St. John's Water, which indicated the water main had been in its current location for more than twenty years and customers living around Simmons's property who received water service had granted easements for lines to tap into the water main. Simmons indicated he was not aware of the location of the water main or the existence of any water lines on his property because the lines are underground, and the meters were covered by brush and unflagged. He further indicated his home uses well water.

Simmons filed a complaint alleging trespass and unjust enrichment and seeking a declaratory judgment that neither utility had any property rights with respect to his

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land. Berkeley Electric and St. John's Water filed motions for summary judgment, each arguing it had an easement over Simmons's property, thereby defeating his claims. The matter was referred to the master-in-equity for a determination of the existence of any easements but reserving the issue of damages for the circuit court should Simmons prevail.

After considering the motions and arguments, the master concluded Berkeley Electric had been granted an express easement and Simmons produced no evidence it had exceeded the scope of that easement. The master further concluded that even if Berkeley Electric had somehow exceeded the scope of the easement, the current situation had existed openly for more than twenty years, entitling Berkeley Electric to a prescriptive easement to maintain the lines and poles in their present location. Consequently, the master dismissed Simmons's claims against Berkeley Electric.

With respect to St. Johns Water, the master concluded it had an express easement to establish the water line under Simmons's property. He further found that even if it did not have an express easement, St. John's Water had acquired a prescriptive easement via the continuous use of the water main for more than twenty years and because the existence of the water main was obvious to any surrounding landowner demonstrating a minimal amount of diligence. Accordingly, the master dismissed Simmons's claims against St. John's Water. This appeal followed.


A trial court may grant a party's motion for summary judgment "if 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." Rule 56(c), SCRCP. "An appellate court applies the same standard used by the trial court under Rule 56(c) when reviewing the grant of a motion for summary judgment." Epstein v. Coastal Timber Co., 393 S.C. 276, 281, 711 S.E.2d 912, 915 (2011). "In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party." David McLeod Reg'l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 3 (2006). "[I]n 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). Summary judgment is not appropriate where further inquiry into the facts of the

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case is desirable to clarify the application of the law. Lanham v. Blue Cross & Blue Shield of S.C., 349 S.C. 356, 362, 563 S.E.2d 331, 333 (2002).


I. Berkeley Electric

A. Consideration of Express Easement

Simmons contends the master erred in granting summary judgment to Berkeley Electric on an express easement theory because the argument was not part of its summary judgment motion and contrary to the order of reference. We disagree.

The record illustrates the matter of whether Berkeley Electric held an express easement was argued at the summary judgment hearing without objection. Issues not raised by the pleadings but tried by the consent of the parties are treated as if they had been raised in the pleadings. See Rule 15(b), SCRCP. Therefore, we conclude this issue is without merit.

Additionally, the order of reference to the master specifically indicated that the issue of "both prescriptive and/or express" easements would be considered by the master. Therefore, we find this contention to be meritless as well.

B. Consideration of Scope of Express Easement

Simmons argues the master erred in granting summary judgment to Berkeley Electric finding it did not exceed the scope of its express easements because that issue was not part of its summary judgment motion, the issue was contrary to the order of reference, and the decision was not based upon evidence in the record. We disagree.

The scope of the express easement held by Berkeley Electric was argued and considered at the summary judgment hearing without objection. Consequently, the matter was treated by the master if it had been raised in the pleadings. See Rule 15(b), SCRCP ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."). Furthermore, the order of reference was broadly worded to cover issues relating not only to the existence of an easement, but its scope as well. The fact that the only issue reserved for the circuit court was

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damages also demonstrates that all issues related to the existence and use of any easement were before the master.

C. Scope of Express Easement

Simmons next maintains the master erred in granting summary judgment to Berkeley Electric finding it did not exceed the scope of its express easements because issues of fact regarding the scope of the easements were disputed. We disagree.

"The language of an easement determines its extent." Plott v. Justin Enters., 374 S.C. 504, 513, 649 S.E.2d 92, 96 (Ct. App. 2007) (quoting Binkley v. Rabon Creek Watershed Conservation Dist., 348 S.C. 58, 67, 558 S.E.2d...

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