Real Property – Public Utilities – Prescriptive Easements – Adverse Use – Claim of Right – Open & Notorious

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Simmons v. Berkeley Electric Cooperative, Inc. (Lawyers Weekly No. 010-082-16, 12 pp.) (Donald Beatty, Acting Chief Justice) Appealed from Charleston County (Mikell Scarborough, Master-in-Equity) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: In proving the elements of a prescriptive easement “adverse use” and “claim of right” are, in effect, one and the same.

We reverse the Court of Appeals’ decision to uphold summary judgment for defendant St. John’s Water Co. We affirm summary judgment for defendant Berkeley Electric Cooperative.

Plaintiff claims trespass and unjust enrichment arising from the presence of overhead power transmission lines and underground water lines on undeveloped property that plaintiff acquired in 2003.

Water Lines

To establish a prescriptive easement, the claimant must prove by clear and convincing evidence that (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.

According to the Court of Appeals, to establish an easement by prescription, one need only establish either a justifiable claim of right or adverse and hostile use. The Court of Appeals erred in recognizing two methods of proving the third element of a prescriptive easement. We acknowledge that this court’s decisions have helped give rise to this error and now take this opportunity to clarify the third element of a prescriptive easement.

The third element of a prescriptive easement, set out above, should be interpreted as requiring the claimant’s use be adverse or, in other words, under a claim of right contrary to the rights of the true property owner. To the extent that there is a difference between the two terms, there still could not be a legitimate claim of right without adverse use.

Accordingly, we hold adverse use and claim of right cannot exist as separate methods of proving the third element of a prescriptive easement. We overrule those decisions that express a contrary conclusion of law. We also take the opportunity to emphasize that a claimant’s belief regarding the permissiveness of his use of property is irrelevant when determining the existence of a prescriptive easement.

The test for a prescriptive easement can be simplified as follows:

In order to establish a prescriptive easement, the claimant must identify the thing enjoyed, and show his use has been open, notorious, continuous, uninterrupted, and contrary to the true property owner’s rights for a period of 20 years.

Applying this test, we find there is a genuine issue of material fact as to whether St. John’s Water can prove the “open” and “notorious” elements of a prescriptive easement; therefore, we conclude the Court of Appeals erred in affirming the master’s grant of summary judgment in favor of St. John’s Water.

First, the water main is underground, and plaintiff’s tracts are heavily wooded and undeveloped. Plaintiff also asserted that the water meter was hidden under bushes when he first discovered it. There is a genuine issue of material fact as to whether St. John’s Water’s use was open.

Second, even if it is widely known that a majority of the neighborhood’s water comes from a water main, this does not necessarily mean that the location of the water main is widely known (notorious).

We reverse the grant of summary judgment in favor of St. John’s Water.

Power Lines

Defendant Berkeley Electric Cooperative, Inc., must show that any distribution lines crossing plaintiff’s Tract 135 are covered under a prescriptive easement since Berkeley Electric’s written easements do not grant Berkeley Electric the right to run distribution lines over Tract 135. Berkeley’s witnesses testified that the line in question has been in its current configuration since at least 1980.

The line is visible from the road.

Two plats of neighboring properties – which show a portion of plaintiff’s property – do not show all of the power lines that plaintiff contends run across his property. However, the plats were not created to show plaintiff’s property, nor do they purport to illustrate all of the power lines encumbering the area. Thus, the plats do not create a dispute of material fact.

Although two system maps show the distribution line in two different locations, the system maps are not drawn to scale, nor do they identify any property lines. These maps do not create a dispute of material fact.

While plaintiff attested that he had personal knowledge the distribution line had not been in its current location for 20 years, in support of that statement he relies on one of the plats discussed above. He does not say how he personally was aware of the power line’s location over the years. Therefore, plaintiff has not presented evidence which gives rise to a dispute of material fact, and we affirm summary judgment for Berkeley Electric.

Affirmed in part, reversed in part, and remanded.