Real Property – Easements – Insufficient Evidence – Prescription, Deed or Dedication

Plaintiff’s use of a road across defendant’s property became adverse in 2009; before that, the evidence shows plaintiff’s use was permissive. And plaintiff’s evidence fails to show any mention of an easement in defendant’s chain of title or any public dedication by defendant or her predecessors in title.

We reverse the master-in-equity’s finding of easements by grant and prescription in favor of plaintiff.

Prescription

Defendant’s property is unenclosed woodland; consequently, all use of Shady Grove Road before a gate was installed across the road in 1970 is presumed to be permissive. Plaintiff did not rebut this presumption.

Generic testimony about the road’s longstanding use for recreation, hunting and general access without seeking the owner’s explicit permission is not evidence of adverse use. People who travel such a road commit no trespass (at least not until after notice to desist), and subject the owner to no loss or inconvenience. To prohibit them would be considered churlish and would be ineffectual, unless a constant watch was kept to prevent them.

Furthermore, plaintiff failed to show that its use or its predecessors’ use was adverse after the gate was installed in 1970. Several locks were on the gate. Testimony established that defendant and her predecessors allowed these locks by permission and would periodically remove unauthorized locks.

Plaintiff was denied access to the road in 2009. After that, plaintiff began cutting the chain and adding its own lock. While this conduct would plainly notify an owner like defendant that plaintiff claimed a right to use the road, no testimony was presented that the previous use of a lock by plaintiff or its predecessors provided similar notice. Indeed, the testimony established that plaintiff sought and was denied permission to use someone else’s lock. This undercuts rather than supports the claim of longstanding adverse use.

Grant

Defendant’s property was originally three of twelve lots subdivided out of a larger tract. Other lots’ deeds, issued while the grantor still owned one of defendant’s lots (Lot E), include easement grants. However, from 1948 forward, no purchaser would have actual or constructive notice of any easement by grant over E because no easement language appears in Lot E’s chain of title.

Dedication

The record contains no evidence that defendant or any of her predecessors expressed an intention (much less a clear and unmistakable intention) to dedicate the road to the public. Here, the master determined Shady Grove Road became a public road based on general public use, the testimony of four witnesses who said the county maintained the road before 1969, and two maps that show the road as a public road.

Public use cannot suffice – the law presumes neighborly accommodation in this sort of situation.

Three of the four witnesses who said the county maintained the road before 1970 were minors when they observed the supposedly county owned motor graters operating on the road, and the testimony of all four came more than 45 years after they saw the motor graters. None of the four witnesses explained how they knew the motor graters belonged to Richland County, and one witness stated county employees would occasionally do favors for friends or for liquor.

The maps in question were created by the U.S. Army Corps of Engineers, the Federal Works Agency, and the South Carolina State Highway Department. These maps from third parties carry less weight than the county’s right-of-way agent’s testimony that the county did not have a public dedication past the gate.

When looking at the evidence in the record as a whole, it is manifest that defendant and her predecessors had no intention of dedicating the portion of Shady Grove Road passing over their property to the public. The record indicates the exact opposite intent—that the gate was erected to prevent people from using the road to do “devilment.” We find by a preponderance of the evidence that plaintiff did not show the public adversely used the road, as the record indicates the public permissively used the road until the gate was installed in 1970, after which the only adverse users were plaintiff, its predecessors, agents, and guests (and only after 2009, as discussed above).

Reversed.

Raglins Creek Farms, LLC v. Martin (Lawyers Weekly No. 012-009-23, 7 pp.) (Per Curiam) Appealed from Richland County (Joseph Strickland, Master-in-Equity) Joey Randell Floyd, Wesley Dickinson Peel and Chelsea Jaqueline Clark for appellant; John Wells and Michael Brent McDonald for respondent. S.C. App. Unpub.