W. H. Bundy, Jr., Respondent,
Bobby Brent Shirley, Petitioner
Heard March 3, 2015
[Copyrighted Material Omitted]
Appeal From Kershaw County. Roderick Murchison Todd, Jr., Special Referee. Appellate Case No. 2013-001263.
John W. Wells, of Baxley Pratt & Wells, P.A., of Lugoff, for Petitioner.
Michael Brent McDonald, of Smith Bundy Bybee & Barnett, P.C., of Mount Pleasant, for Respondent.
[412 S.C. 296] ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
In this declaratory judgment action, W. H. Bundy, Jr. sought a determination of whether Bobby Brent Shirley established a prescriptive easement over a road on rural property [412 S.C. 297] owned by Bundy. The special referee found Shirley was entitled to the easement. The Court of Appeals reversed. Bundy v. Shirley, Op. No. 2013-UP-153 (S.C. Ct.App. filed May 8, 2013). This Court granted Shirley's petition for a writ of certiorari to review the decision of the Court of Appeals. We affirm as modified.
I. Factual / Procedural History
As stipulated by the parties, the Bundy property traced back to a plat prepared on September 26, 1960. The plat depicts a continuous dotted line that includes Saxon Road, which is maintained by Sumter County and Kershaw County, and the disputed dirt road leading to the Bundy property. In 1968, Sumter County and Kershaw County began maintaining that portion of Saxon Road in their respective counties. The maintenance extended from the Sumter-Kershaw County line to the Miller property, which is the last occupied residence on Saxon Road.
Although there were multiple predecessors-in-title, Bundy ultimately purchased his seven tracts of rural property in Kershaw County on March 14, 2003 from Bowater Timber 1, L.L.C (" Bowater" ). Throughout Bowater's ownership, the South Carolina Department of Natural Resources (" SCDNR" ) had a legal interest in the property as it was enrolled in the Wildlife Management Area Program between 1985 and 2003. This program allowed the public to access all portions of the property subject to the program's rules and regulations, which included the requirement that a person seeking to hunt on the property procure a permit. During the off-season, Bowater strung a locked cable on two posts at the entrance of the property. On December 22, 2003, Bundy conveyed a conservation easement on the property to Congaree Land Trust, which prevents development and subdivision of the property in the future and allows Bundy to plant pine trees.
The thirty-seven acre tract of land known as the Shirley property was acquired by Shirley's parents on May 10, 1985. Shirley's parents transferred the property to Shirley on February 21, 2005. While there were several predecessors-in-title, the pertinent ownership relied on by Shirley was the Bennett family ownership between December 19, 1947 and April 29, 1969. As stipulated by the parties, Elijah Bennett [412 S.C. 298] and his family used Saxon Road and the disputed road as their sole access to the Shirley property. Bennett farmed the land from 1948 until 1957 and rented a portion of the property to the Miller family during the 1960s.
Shirley, whose property is landlocked by surrounding owners, used the disputed road on Bundy's property from 1985 to 2004 for ingress and egress to his property. Throughout the time period that the property was leased to SCDNR, Shirley used a key, which was given to him and his father by a SCDNR game warden, to unlock the gate.
In early 2004, shortly after Bundy purchased his property, Shirley received permission from Bundy to erect a gate over the disputed road in an effort to limit the public from using the surrounding property to dump trash. The gate was located at the same location as the Bowater cable. Shortly thereafter, Bundy hired a company to clear a portion of his property so that he could plant pine trees. Shirley became upset when a logging truck, which was owned by the company hired by Bundy, blocked access to his property. According to Bundy, Shirley called him and threatened him with violence regarding the incident. As a result of the threat, Bundy called Shirley on September 12, 2005 and instructed him to take down the gate and told him to stop using the disputed road to access his property. In response, Shirley yelled at Bundy and threatened him
again with violence. Shirley testified that he believed he had a right to use the road because he thought it was a continuation of Saxon Road.
On March 24, 2009, Bundy filed a declaratory judgment action seeking a determination of whether Shirley had a prescriptive easement over the disputed road. Alternatively, if the court ruled that Shirley was entitled to the easement, Bundy sought a determination regarding the type of easement and the rights and duties of the easement holder, including whether the easement was assignable or transferable. Shirley filed an Answer and Counterclaim in which he sought a declaration that the disputed road was public or, alternatively, that he had a private, permanent easement. In his Reply, Bundy alleged several affirmative defenses to Shirley's counterclaims, including that Shirley was barred from recovery based on the equitable doctrines of estoppel and unclean [412 S.C. 299] hands and that Shirley's use of the disputed road was permissive.
Following a two-day trial, the special referee ruled that Shirley was entitled to an easement, which measured eight feet in width, across Bundy's property. Based on the stipulations of the parties, the testimony presented, and the exhibits, the special referee concluded that Shirley proved by a preponderance of the evidence that the Bennett family used the disputed roadway between 1947 and 1969 " continuously" and in a " manner that was adverse to the interests of the owners at that time of the tract now owned by [Bundy]." Having concluded that Shirley established a prescriptive easement during the Bennett ownership period, the special referee found it was " unnecessary to establish a prescriptive easement during the Shirley ownership period." However, the special referee concluded, as a matter of law, that Shirley had proven that " his parents and he used the disputed road continuously for a period of twenty (20) years."
The special referee also found that Shirley's " continued use of the clearly identified disputed road under a claim of right establishes a prescriptive easement during the Shirley ownership period without the need to show that the use was adverse." Citing Revis v. Barrett, the special referee stated " [p]ermission does not defeat an easement by prescription based on claim of right." The special referee also rejected Bundy's evidence that Shirley's use was permissive. Referencing Shirley's " violent outburst" toward Bundy, the special referee concluded that Shirley's use of the disputed road was adverse and hostile.
The special referee further determined that Sumter County and Kershaw County derived their right to maintain a portion of Saxon Road from a prescriptive easement because there was no evidence presented that either county obtained any right-of-way deeds. Because the counties maintained a portion of Saxon Road, the special referee found that Saxon Road [412 S.C. 300] is a public road and, therefore, " the disputed road in this case is unmistakably a portion of Saxon Road."
Subsequently, Bundy filed a timely motion for reconsideration in which he alleged, inter alia, the special referee erred in finding that Saxon Road is a public road and ruling as a matter of law that permissive use does not defeat a claim of a prescriptive easement. The special referee affirmed the grant of a prescriptive easement to Shirley. However, he granted Bundy's motion in part as the special referee reversed his ruling on Shirley's claim of an easement based on a public dedication theory. Bundy appealed the special referee's orders to the Court of Appeals.
The Court of Appeals reversed the special referee's decision, finding Shirley did not establish that his use of the disputed road was adverse or under a claim of right for twenty years. Bundy v. Shirley, Op. No. 2013-UP-153 (S.C. Ct.App. filed May 8, 2013). In so ruling, the court initially held the special referee erred as a matter of law in concluding that permission " does not defeat an easement by prescription based on a claim of right." Id., slip op. at 2. The court
found the special referee's conclusion was contrary to established law, which states that permission defeats a claim to a prescriptive easement because the use of the disputed property is no longer deemed adverse or under claim of right. Id., slip op. at 2-3 (citing Paine Gayle Props., LLC v. CSX Transp., Inc., 400 S.C. 568, 585-86, 735 S.E.2d 528, 537-38 (Ct.App. 2012)).
With this principle in mind, the court noted that the parties stipulated: (1) the property Shirley now owns was transferred to Shirley's parents on May 10, 1985; and (2) in 2004, Shirley put up a gate on the disputed road with the permission of Bundy. Id., slip op. at 2. Based on these stipulations, the court concluded that Bundy's grant of permission for Shirley to build the gate defeated a claim of right or adverse use of the disputed road. Id., slip op. at 2-3. Additionally, the court ruled the special referee erred in finding that because Shirley established a " prescriptive easement during the Bennett ownership period, it [was] unnecessary to establish a prescriptive easement during the Shirley ownership period." Id., slip op. at 3.
[412 S.C. 301] In order to utilize the Bennett family's prescriptive use of the disputed road, the court found Shirley was required to offer evidence that the disputed road continued to be used under a claim of right or in an adverse manner during the time period between the Bennett family's use and the Shirley family's use. Id. The court determined Shirley failed to present evidence that the use of the disputed road was adverse or under claim of right between 1968 and 1985, the time period between the Bennett family's ownership and the Shirley family's ownership. Id. Consequently, the court concluded that even if the special referee was correct that the Bennett family had a prescriptive easement over the disputed road, Shirley was unable able to tack the Bennett family's use to establish his prescriptive easement claim. Id. ...