Bundy v. Shirley
412 S.C. 292, 772 S.E.2d 163 (2015)
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Rule of Law:
To establish a prescriptive easement in South Carolina, a claimant must prove by clear and convincing evidence: (1) twenty years of continuous and uninterrupted use, (2) the identity of the thing enjoyed, and (3) use that is adverse or under a claim of right. Use with the owner's permission, even if granted after a period of adverse use has begun, defeats the claim by negating the adverse character of the use.
Facts:
- From 1947 to 1969, the Bennett family owned the property later acquired by the Shirley family and used a disputed dirt road on what is now W. H. Bundy, Jr.'s land as their sole means of access.
- Shirley's parents acquired the landlocked property on May 10, 1985.
- From 1985 until 2003, the Bundy property was owned by Bowater Timber and enrolled in a public Wildlife Management Area Program. During this time, Shirley and his father used a key given to them by a game warden to unlock a cable at the entrance of the property during the off-season.
- Bundy purchased his property on March 14, 2003.
- In early 2004, Shirley asked for and received permission from Bundy to erect a gate over the disputed road.
- In September 2005, following a dispute over a logging truck blocking the road, Bundy revoked his permission, instructed Shirley to take down the gate, and told him to stop using the road.
Procedural Posture:
- W. H. Bundy, Jr. filed a declaratory judgment action against Bobby Brent Shirley in a South Carolina trial court, which was referred to a special referee for a final judgment.
- The special referee found that Shirley was entitled to a prescriptive easement.
- Bundy, as appellant, appealed the special referee's decision to the South Carolina Court of Appeals.
- The Court of Appeals reversed the special referee, holding that Shirley had failed to establish a prescriptive easement.
- The South Carolina Supreme Court granted Shirley’s petition for a writ of certiorari to review the decision of the Court of Appeals.
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Issue:
Does a claimant establish a prescriptive easement over another's land when his use was at times permissive, and can he tack on a predecessor's use without proving continuous adverse use by all intervening owners?
Opinions:
Majority - Justice Beatty
No. Shirley did not establish a prescriptive easement because his use was not adverse or under a claim of right for the continuous twenty-year period required. First, the court established that the standard of proof for a prescriptive easement is clear and convincing evidence, not a preponderance of the evidence, because such an easement diminishes a property owner's rights. Second, the court affirmed the long-standing principle that permissive use defeats a claim for a prescriptive easement. Shirley's use was permissive because he used a key provided by an agent of the prior landowner (Bowater) and, most importantly, he sought and received Bundy's express permission to erect a gate in 2004. By asking for permission, Shirley implicitly acknowledged Bundy's ownership rights, which is inconsistent with a use that is 'adverse' or under a 'claim of right.' Finally, Shirley could not tack the Bennett family's use (1947-1969) to establish the twenty-year period because he failed to present any evidence of adverse use by the intervening property owners between 1969 and 1985, thereby failing to show the required continuity of adverse use.
Analysis:
This case significantly clarifies and elevates the standard for acquiring a prescriptive easement in South Carolina by requiring proof by 'clear and convincing evidence.' This heightened standard makes it more difficult for claimants to succeed and provides greater protection for landowners against unwritten encumbrances on their property. The decision strongly reaffirms that any act acknowledging the landowner's superior right, such as asking for permission, is fatal to a prescriptive easement claim because it negates the essential element of adverse use. It also reinforces the strict requirements for 'tacking,' demanding an unbroken chain of proven adverse use through successive owners.
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