Civil Practice – Motion to Intervene – Prescriptive Easement – Fee Simple Title Claim – Rule 24 of the South Carolina Rules of Civil Procedure

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The circuit court erred in denying appellant’s motion to intervene.

We reversed the order denying appellant’s motion to intervene.

DeBordieu Colony Community Association, Inc. is a private coastal community in Georgetown County. DeBordieu sought intervention as a matter of right or, alternatively, permissive intervention in a lawsuit brought to determine the rightful titleholder to roughly 8,000 acres of marshlands abutting DeBordieu’s southern boundary. The circuit court denied intervention under both theories. Precedent and Rule 24(a) of the South Carolina Rules of Civil Procedure set a liberal standard for intervention. Denying intervention here was inconsistent with that standard.

The Belle W. Baruch Foundation owns approximately 8,000 acres of “high ground” in Georgetown County. The marshland over which Baruch claims title is adjacent to Baruch’s high ground. Baruch claims it owns this marshland under the original King’s Grant. DeBordieu’s southern boundary creates the northern boundary of the disputed marshland. DeBordieu has periodically dredged its canals to maintain its access to the marshland for recreational purposes. Baruch claimed it holds fee simple title to the marshlands and sought an order declaring it the rightful owner. The State asserted its status as the presumptive titleholder of all marshlands, and counterclaimed that the public held a prescriptive easement over the marshlands. DeBordieu filed a timely motion to intervene, opposed Baruch’s claim of fee simple title over the marshlands, and asserted its own claim for a prescriptive easement. The State consented to DeBordieu’s intervention. Baruch objected. The circuit court denied DeBordieu’s motion after a hearing. This appeal followed.

DeBordieu easily satisfied three of the four requirements. First, DeBordieu timely filed its motion. Second, through its counterclaim for a prescriptive easement, DeBordieu is unquestionably claiming “an interest” in the disputed property. Third, barring DeBordieu impairs or impedes DeBordieu’s ability to protect its claimed interest.

The “impairment” factor is not designed to be a difficult standard. Baruch’s complaint advertises the purpose of this suit as adjudicating its rights to the marshlands; a court order adjudicating Baruch’s claimed rights would necessarily be incomplete unless it also adjudicated DeBordieu’s claim. It would be inconsistent with our liberal application of Rule 24, and contrary to the mandate of judicial economy, to deny DeBordieu intervention in a suit that is meant to determine the rightful property owner of a parcel over which DeBordieu claims an easement.

Intervention as a matter of right also requires that DeBordieu’s interest not be adequately represented by existing parties. This, too, is a “minimal” burden and “the applicant need only show that the representation of his interests ‘may be’ inadequate.

It is true that DeBordieu and the State similarly claim that if Baruch owns the disputed marshlands, the marshlands are encumbered by the State’s and/or DeBordieu’s prescriptive easements. It is inaccurate, however, to categorize those easement claims as the same interest in the property.

Our supreme court clarified the test for a prescriptive easement in Simmons v. Berkeley Electric Co-op., Inc., stating “[i]n order to establish a prescriptive easement, the claimant must identify the thing enjoyed, and show his [or her] use has been open, notorious, continuous, uninterrupted, and contrary to the true property owner’s rights for a period of twenty years.” 419 S.C. 223, 233, 797 S.E.2d 387, 392 (2016). Exclusivity is not a requirement to make a prescriptive easement claim. The State’s and DeBordieu’s easement claims are independent of one another and are different claims requiring different proof. The fact that the claims are materially different amply demonstrates the State would not make all of DeBordieu’s arguments.

Reversed.

Ex Parte: DeBordieu Colony Community Association Inc. v. The State of South Carolina (Lawyers’ Weekly No. 011-003-24, 7 pp.) (Blake Hewitt, J.) Appealed from Georgetown County Circuit Court (Paul M. Burch, J.) Brian C. Duffy, Julie Lauren Moore, Robert Lewis Wehrman, and Patrick Coleman Wooten, all of Duffy & Young, LLC, of Charleston, for appellant; George Trenholm Walker, Thomas P. Gressette, Jr., and Jennifer Sue Ivey, all of Walker Gressette & Linton, LLC, of Charleston, for respondent. South Carolina Court of Appeals