Bundy v. Shirley

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

W.H. Bundy, Jr., Appellant,

v.

Bobby Brent Shirley, Respondent.

Appellate Case No. 2012-208007

Appeal From Kershaw County
Roderick M. Todd, Jr., Special Referee

Unpublished Opinion No. 2013-UP-153
Heard January 9, 2013 – Filed April 10, 2013
Withdrawn, Substituted and Refiled May 8, 2013

REVERSED

M. Brent McDonald, of Smith Bundy Bybee & Barnett,
P.C., of Mount Pleasant, and Stephen A. Spitz, of
Charleston, for Appellant.

John W. Wells, of Baxley, Pratt & Wells, P.A., of
Lugoff, for Respondent.

PER CURIAM: This appeal arises out of a declaratory judgment action seeking a
determination as to whether Respondent Bobby Brent Shirley has a prescriptive
easement over a road (the Disputed Road) on rural property owned by Appellant
W.H. Bundy, Jr. The special referee found that Shirley established a right to use
the Disputed Road. On appeal, Bundy argues the special referee erred by: (1)
failing to require Shirley establish a right to a prescriptive easement by clear and
convincing evidence; (2) finding that Shirley established a prescriptive easement
over the Disputed Road; and (3) failing to rule that Shirley's inequitable conduct
barred any relief sought by him in this action due to the doctrine of unclean hands.
We reverse.

1. As to Bundy's argument that the special referee erred by finding that Shirley
established a prescriptive easement over the Disputed Road, we agree because
Shirley did not establish his use of the Disputed Road was adverse or under a claim
of right for twenty years. See S.C. Dep't of Transp. v. Horry Cnty., 391 S.C. 76,
82, 705 S.E.2d 21, 24 (2011) (stating an appellate court "will not overturn a trial
court's finding that an easement exists unless that conclusion is controlled by an
error of law or without evidentiary support"); Jones v. Daley, 363 S.C. 310, 316,
609 S.E.2d 597, 599-600 (Ct. App. 2005) ("In order to establish an easement by
prescription, a party must only show: (1) the continued and uninterrupted use or
enjoyment of a right for a full period of twenty years; (2) the identity of the thing
enjoyed; and (3) that the use or enjoyment was adverse or under a claim of right.").
Relying on Revis v. Barrett, 321 S.C. 206, 467 S.E.2d 460 (Ct. App. 1996), the
special referee found that permission "does not defeat an easement by prescription
based on a claim of right." We find this to be an error of law. See Williamson v.
Abbott, 107 S.C. 397, 401, 93 S.E. 15, 16 (1917) ("The asking and obtaining of
permission, whether from the tenant or owner of the servient estate, stamps the
character of the use as not having been adverse, or under claim of right, and
therefore as lacking that essential element which was necessary for it to ripen into
a right by prescription."). Here, the parties stipulated the property Shirley now
owns was transferred to Shirley's parents on May 10, 1985. The parties also
stipulated: "In 2004, Shirley put up a gate located on the property line between the
Bundy Property and the property owned by the Miller Family with the permission
of Bundy." Assuming Shirley's use of the Disputed Road was not permissive from
1985 until Bundy gave Shirley permission to build the gate in 2004, the nineteen-
year time period is insufficient to establish a prescriptive easement. In Revis, the
landowner did not give the party asserting a prescriptive easement permission to
use the disputed road; rather, the landowner recognized the right of the party to use
the road. See Revis, 321 S.C. at 210, 467 S.E.2d at 462 (finding evidence
supported the master's finding that Revis' right to use the disputed road flowed
from a "claim of right" and not from a grant of permission). Based on the parties'
stipulations, Bundy's grant of permission for Shirley to build the gate defeats a
claim of right or adverse use of the Disputed Road because the use of the Disputed
Road was permissive. See McCrea v. City of Georgetown, 384 S.C. 328, 332, 681
S.E.2d 918, 921 (Ct. App. 2009) (noting stipulations are binding on the parties as
well as the court); Paine Gayle Properties, LLC v. CSX Transp., Inc., 400 S.C.
568, 585-86, 735 S.E.2d 528, 537-38 (Ct. App. 2012) (discussing permissive use of
the disputed property and finding the granting of permission to use the property
defeats a prescriptive easement claim). Furthermore, we also find the special
referee erred by determining that because Shirley established "a prescriptive
easement during the Bennett ownership period, it is unnecessary to establish a
prescriptive easement during the Shirley ownership period." The Bennett family
owned the property Shirley now owns from 1947-1968. In order to use the Bennett
family's prescriptive use of the Disputed Road, Shirley was required to offer
evidence that the Disputed Road continued to be used under a claim of right or in
an adverse manner between the Bennett family's use and the Shirley family's use.
However, Shirley presented no evidence that the use of the Disputed Road between
1968 and 1985 was adverse or under a claim of right. See Kelley v. Snyder, 396
S.C. 564, 575, 722 S.E.2d 813, 819 (Ct. App. 2012) (noting parties may "tack" the
period of prior owners to satisfy the twenty-year prescriptive easement period if
the prior owners are in privity and the prior owners' use was adverse or under a
claim of right). Therefore, even if the special referee was correct that the Bennett
family had a prescriptive easement over the Disputed Road, Shirley is unable to
tack the Bennett family's use to establish his prescriptive easement claim. For the
foregoing reasons, we find the special referee erred by finding Shirley established a
prescriptive easement.

2. As to Bundy's remaining arguments on appeal, we decline to address these
issues because the above findings are dispositive of the appeal. See Young v.
Charleston Cnty. Sch. Dist., 397 S.C. 303, 311, 725 S.E.2d 107, 111 (2012)
(declining to address additional remaining issues when the disposition of a prior
issue was dispositive of the appeal).

REVERSED.

FEW, C.J., and WILLIAMS and PIEPER, JJ., concur.