James L. Braswell, Sr. v. James F. Amick (2)

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

James L. Braswell, Sr., Respondent-Appellant,

v.

James F. Amick, Appellant-Respondent.

Appellate Case No. 2020-000458

Appeal From Newberry County
Grace Gilchrist Knie, Circuit Court Judge

Opinion No. 6054
Heard April 20, 2023 – Filed March 27, 2024

AFFIRMED

Karl Stephen Brehmer, of Brown & Brehmer, and James
Donald Floyd, of Gibbs Law Firm, LLC, both of
Columbia, for Appellant.

Jennifer Dowd Nichols and Samuel M. Price, Jr., both of
Nichols & Price, of Newberry, for Respondent.

MCDONALD, J.: In this declaratory judgment action, James F. Amick argues the
circuit court erred in finding James L. Braswell, Sr. 1 had an appurtenant
prescriptive easement across Amick's land. Amick contends the circuit court used
an incorrect test in declaring the existence of the easement and failed to make

1
Braswell chose not to file a final appellant's brief; therefore, his cross-appeal is
dismissed.
findings necessary to show Braswell's "use of the dirt road was open and notorious
by clear and convincing evidence." We affirm.

Facts and Procedural History

Braswell sought a judgment declaring the existence of a right-of-way over Amick's
property in order to access his farmland from Highway 76 in Newberry County.
Braswell owns 120 acres (the Braswell Property) with no access to Highway 76;
Amick owns a 17.08-acre tract along Highway 76 (the Amick Property). Both
properties border a tract to the west known as the Ballentine Property. 2 The dirt
road over which Braswell claims an easement runs across the Amick Property
along the side of the Ballentine Property. However, title searches and surveys
performed in connection with this litigation revealed a 12.5-foot gap between the
Ballentine Property and the Amick Property; this gap property, owned by Sula
Miller, was never conveyed to Amick. Thus, although Braswell sought a
twenty-five-foot easement, the circuit court addressed only the 12.5-foot portion of
the road on the Amick Property.

In 1964, Miller conveyed a 4.04-acre parcel and a three-acre parcel to L.K.
Bedenbaugh. In 1966, Bedenbaugh conveyed his land to Henry Bickley; the
property was described as bound "on the West by a dirt road which separates same
from lands of Ballentine." Later that year, Bickley's estate conveyed
approximately twenty acres to Bedenbaugh, including a seven-acre parcel
described as bound "by a dirt road which separates the conveyed premises from the
lands of Ballentine." In 1967, Bedenbaugh conveyed the land to Oscar Harley and
again the deed described "a dirt road which separates the conveyed premises from
the lands of Ballentine." In 1971, Harley conveyed the property to Steven and
Lynn Gaston; this deed again referenced the dirt road. The Gastons conveyed the
land to Grady Tarlton in 1972 and although the description did not reference the
dirt road, it was the same land conveyed to the Gastons by Harley, other than a
one-acre parcel the Gastons retained. In 1979, Grace Tarlton conveyed 17.08 acres
to H.L. and Thelma Brock, including the land from the Gastons. This deed's
property description incorporated by reference a 1979 plat prepared by Claude
Johnson.3

2
The Braswell family (and others) refer to the western parcel as the "Ballentine
side" and the eastern parcel as the "Parr side."
3
A 1964 plat, also prepared by Johnson, shows the 12.5-foot strip bordering the
Ballentine Property. This 12.5-foot strip from the 1964 plat is referred to as a
On June 8, 1988, Amick and his wife purchased their tract from the Brocks. This
deed describes the Amick Property as:

All that certain piece, parcel or tract of land, consisting of 17.080
acres, more or less, located on U.S. Highway No. 76, in the County of
Newberry, State of South Carolina, with the following buttings,
boundings and delineations, to-wit: beginning at the northernmost
point and running on a southeasterly direction along the right-of-way
of U.S. Highway No. 76 for a distance of 268.43 feet to an iron pin;
thence running in a southwesterly direction along the tract of land
conveyed to Grace K. Tarlton by Grady Tarlton for a distance of 410
feet to an iron pin; thence running in an southeasterly direction along
the tract of land conveyed to Grace K. Tarlton for a distance of 290
feet to an iron pin; thence running in a southwesterly direction along
the right-of-way of a farm road and the lands now or formerly of Sula
Miller Harley for a distance of 457.53 feet to an iron pin; thence
running along the lands, now or formerly of Sula Miller Harley in the
aggregate of 320.22 feet to an iron pin located in a pond; thence
running in a northwesterly direction along the lands of James Braswell
for a distance of 329.31 feet to an iron pin; thence running in a
northeasterly direction for a distance of 887.27 feet along the lands of
James Braswell to an iron pin; thence [] running in a northwesterly
direction for a distance of 198.05 feet to an iron pin; thence running in
a northeasterly direction along the lands of William Ballentine for a
distance of 604.97 feet to an iron pin, the point of beginning.
Reference is hereby craved to and incorporated as a part of this
description to a plat entitled "Tarlton Tract", prepared by Claude E.
Johnson, L.S., dated August 14, 1979, which plat is of record in the
office of the Clerk of Court for Newberry County in Plat Book AU at
page 14.

ALSO, all our right, title and interest which we own in a twenty-five
(25) foot right-of-way which is located on the eastern boundary of the
property herein conveyed and on the eastern boundary of a 2.996 acre
tract conveyed to Grace Tarlton September 7, 1979.

12.5-foot R/W. At trial, an expert testified "R/W" may have been a surveyors'
annotation, and a dotted line indicates the surveyor did not actually measure the
boundary.
This is the identical property conveyed to the grantors herein by deed
of Grady Tarlton dated September 7, 1979, recorded in the office of
the Clerk of Court for Newberry County in Deed Book 165 at page 6.

In the 1960s, Braswell began leasing several pieces of land from Sula Miller to
grow feed for his existing dairy business. On June 20, 1972, Braswell purchased
the property from Miller. The Braswell Property deed includes:

All that piece, parcel or tract of land containing one hundred twenty
and eighty-one-hundredths (120.80) acres, more or less, situate, lying
and being in Tax District No. 3, in the County of Newberry, State of
South Carolina, said property being bounded by lands of Harold Long,
by lands of William Ballentine; by lands of Sula S. Miller, and by
lands of Henry Parr. This tract of land is more particularly described
on a Plat made by Claude E. Johnson, L.S. 1373, surveyed May
1962-September 1964-October 1971, and recorded in the office of the
Clerk of Court for Newberry County in Plat Book AG at page 28.
This is a portion of the property conveyed to A.B. Miller and Sula S.
Miller by deed dated March 14, 1960, and recorded in the office of the
Clerk of Court for Newberry County in Deed Book 75 at page 575,
and a portion of the property inherited by Sula S. Miller from the Last
Will and Testament of A.B. Miller on file in the office of the Probate
Judge for Newberry County.

On the western (or Ballentine) side of his property, Braswell grew row crops for
feed for his dairy business. As long as Braswell's sons could remember, when they
needed to reach the area containing these row crops, they accessed it through what
is now the Amick Property. In 1984, Braswell constructed two ponds on his land;
he later installed an irrigation system.

Shortly after Amick purchased his property in 1988, he installed gates across the
dirt road because he began noticing trash in certain areas and he needed to keep his
horses from getting loose. Braswell, who purchased gates in large quantities, gave
Amick the gates for the road. Amick started locking the gates after some property
was stolen, but he gave Braswell a key.

In 2015, Amick became concerned about Braswell's employees driving too fast
down the dirt road. Amick also complained that trucks coming to and from the
Braswell Property had started inching further onto his land.
In 2017, Braswell filed this action seeking a judgment to declare the dimensions of
the right-of-way and easement he claimed over the Amick Property. He further
asked that the court enjoin Amick "and his heirs and assigns from interfering in
any manner with" Braswell's use of the right-of-way "for the purpose of access,
ingress and egress" from the Braswell Property to Highway 76. Amick denied the
existence of any such easement or right-of-way. Amick admitted that while he had
previously given Braswell permission to use the dirt road to access his farmland,
he later revoked this permission.

The first nonjury trial of this matter began in December 2018, but the circuit court
ultimately ordered a new trial, and Braswell appealed. Braswell later withdrew
that appeal, which this court dismissed in April 2019.

On October 1, 2019, Braswell filed a motion seeking an injunction pendente lite
and advancement on the trial calendar. In January 2020, the circuit court granted
Braswell a temporary restraining order prohibiting Amick from obstructing
Braswell's use of the claimed right-of-way. The court further ordered Braswell and
his employees to lock the gate each time they entered and exited Amick's property.

Following a second nonjury trial, the circuit court declared Braswell had an
appurtenant prescriptive easement over Amick's property. The circuit court found
Braswell demonstrated by clear and convincing evidence that he met all elements
necessary to establish the easement. The court held Amick took his property
subject to Braswell's easement and Amick was not a purchaser for value without
notice. Moreover, Amick could not assert the defense of permissive use because
there was evidence in the record that Amick objected to Braswell's use of the dirt
road. Finally, the circuit court found Braswell's construction of the two ponds in
1984 did not unreasonably expand the scope of the easement because even
Braswell's largest piece of equipment, a twenty-foot wide combine, could navigate
the road and stay within the easement. Amick appealed these findings.

Standard of Review

"[T]he determination of the existence of an easement is a question of fact in a law
action." Simmons v. Berkeley Elec. Coop., Inc., 419 S.C. 223, 236, 797 S.E.2d
387, 394 (2016) (alteration by court) (quoting Jowers v. Hornsby, 292 S.C. 549,
551, 357 S.E.2d 710, 711 (1987)); see also Pittman v. Lowther, 363 S.C. 47, 50,
610 S.E.2d 479, 480 (2005) ("The determination of the existence of an easement is
a question of fact in a law action and subject to an any evidence standard of review
when tried by a judge without a jury.").
Analysis

Amick argues the circuit court erred in finding Braswell had a prescriptive
easement from Highway 76 across his property. He contends the circuit court did
not properly use the test for prescriptive easements set forth in Simmons, 419 S.C.
at 236, 797 S.E.2d at 394, and failed to address whether Braswell's use of the
purported easement was open and notorious. Amick further argues the circuit
court erred in finding Braswell's twenty-year period of continuous use began in
1964 when Miller sold the 4.04-acre tract to Bedenbaugh because Braswell cannot
tack the time he leased the property from Miller to establish twenty years of
continuous use from 1964 to 1984. Amick maintains that because Miller must
have given Braswell permission to use the road prior to her selling the property to
Bedenbaugh in 1964, Braswell's use could not ripen to a prescriptive easement.
We disagree.

"An easement is a right given to a person to use the land of another for a specific
purpose." Bundy v. Shirley, 412 S.C. 292, 304, 772 S.E.2d 163, 169 (2015). "A
prescriptive easement is not implied by law but is established by the conduct of the
dominant tenement owner . . . ." Boyd v. BellSouth Tel. Tel. Co., 369 S.C. 410,
419, 633 S.E.2d 136, 141 (2006). "To establish a prescriptive easement, the
claimant must prove by clear and convincing evidence: '(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.'"
Simmons, 419 S.C. at 229, 797 S.E.2d at 390 (alteration by court) (quoting
Darlington County v. Perkins, 269 S.C. 572, 576, 239 S.E.2d 69, 71 (1977)).

"To satisfy the twenty-year prescriptive period, the claimant can tack his use to use
by prior owners, provided the prior owners' use also satisfies the prescriptive
easement elements." Carolina Ctr. Bldg. Corp. v. Enmark Stations, Inc., 433 S.C.
144, 155, 857 S.E.2d 16, 22 (Ct. App. 2021).

Successive uses of land by different persons may be tacked, or added
together, to satisfy the prescriptive period. Tacking is permitted when
the successive adverse users are in privity of estate. Although the
requirement of privity has been variously defined, the prevailing view
is that there must be some relationship whereby the successive users
have come into possession under or through their predecessors in
interest. It follows that [a] claimant may not tack the [the] claimant's
adverse use to that of strangers, nor may a claimant tack the claimant's
adverse use to that of a predecessor in title when the predecessor's
usage terminated before claimant acquired the land. Moreover, a
claimant cannot tack adverse use with prior adverse use when
intervening parties used land with permission. Nor is tacking
permissible when it is unclear that use by [the] claimant's predecessor
was adverse. In order to establish continuity of use by tacking, a
claimant must show that predecessors in title actually used the alleged
easement.

Bundy, 412 S.C. at 313–14, 772 S.E.2d at 175 (footnotes omitted by court)
(quoting James W. Ely, Jr. and Jon W. Bruce, The Law of Easements and Licenses
in Land, § 5:19).

In Simmons, our supreme court clarified the test to be used in analyzing a
prescriptive easement claim. 419 S.C. at 230, 797 S.E.2d at 391. The court
explained, "[W]e hold adverse use and claim of right cannot exist as separate
methods of proving the third element of a prescriptive easement as the two terms
are, in effect, one and the same. Thus, we overrule those decisions that express a
contrary conclusion of law." Id. at 232, 797 S.E.2d at 392. The court concluded
South Carolina courts should apply the test for adverse use when analyzing the
third element of a prescriptive easement. Id. at 232–33, 797 S.E.2d at 392.
"However, because the 'continuous' and 'uninterrupted' elements for adverse use
are already required to establish a prescriptive easement, the subtest for 'adverse
use' only further requires the claimant's use be 'open' and 'notorious.'" Id. at 233,
797 S.E.2d at 392. Thus, the supreme court simplified the test 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 twenty years." Id.
"'Open' generally means that the use is not made in secret or stealthily. It may also
mean that it is visible or apparent." Id. (quoting Restatement (Third) of Property
(Servitudes) § 2.17(h) (2000)). "'Notorious' generally means that the use is
actually known to the owner, or is widely known in the neighborhood." Id. at 234,
797 S.E.2d at 392 (quoting Restatement (Third) of Property (Servitudes) § 2.17(h)
(2000)).

In Kelley v. Snyder, this court addressed whether the time a property owner leases
land prior to purchase may be used to establish the twenty years of continuous use
required for a prescriptive easement. 396 S.C. 564, 722 S.E.2d 813 (Ct. App.
2012). Kelley purchased his property in 1977, and the adjacent landowners
(Respondents) purchased their land—which they had previously leased—in 1989.
Id. at 569, 722 S.E.2d at 815–16. Kelley's property description did not mention it
was subject to an easement, but Respondents' deed included an easement for a
twenty-foot access road from the highway across Kelley's property. Id. at 569, 722
S.E.2d at 815–16. In 2008, Kelley sought injunctive relief, claiming Respondents
had impermissibly "created a twenty-foot private roadway on his property." Id. at
571, 722 S.E.2d at 816. Considering whether Respondents used the road against a
claim of right, this court explained:

Kelley asserts the master erred in ruling that the claim of right existed
against both Kelley and his grantor for more than twenty years
because there was no evidence that any claim of right existed prior to
the deed to Respondents in 1989. Respondents purchased their land
on June 29, 1989, and Kelley filed his complaint on June 4, 2008;
therefore, Respondents' claim of right as landowners extends back just
shy of nineteen years. Regardless, "[a] party may 'tack' the period of
use of prior owners in order to satisfy the 20-year requirement."
Morrow [v. Dyches, 328 S.C. 522, 527, 492 S.E.2d 420, 423 (Ct. App.
1997)] (citing 25 Am.Jur.2d Easements and Licenses § 70 (1996)).
"[T]he time of possession may be tacked not only by ancestors and
heirs, but also between parties in privity in order to establish the
20-year period." Getsinger v. Midlands Orthopaedic Profit Sharing
Plan, 327 S.C. 424, 430, 489 S.E.2d 223, 226 (Ct. App. 1997).
Tacking of periods of prescriptive use is permitted where "there is a
transfer between the prescriptive users of either the inchoate servitude
or the estate benefitted by the inchoate servitude." Matthews v.
Dennis, 365 S.C. 245, 249, 616 S.E.2d 437, 439 (Ct. App. 2005)
(quoting Restatement (Third) of Property: Servitudes § 2.17 (2000)).
If tacking is used, the use by the previous owners must have also been
adverse or under a claim of right. See Morrow, 328 S.C. at 528, 492
S.E.2d at 424. Therefore, tacking the [prior owners'] claim of right
over the road to Respondents' claim of right, Respondents have well
over twenty years of use of the roadway.

Id. at 575, 722 S.E.2d at 819.

In the current matter, Braswell's son, James Braswell, Jr., testified that for as long
as he could remember, his family used the dirt road on the Amick Property
whenever they needed to access the Ballentine side of their farm. James explained
that after installation of the irrigation system, the Braswells and their employees
started using the road more frequently because the irrigation system's pumps
required regular refueling. Although James admitted farm workers could access
the Braswell Property through a farm road on the Parr side, he clarified that this
road is too narrow to transport large farm equipment. And, some of the farm
equipment is too heavy to cross the pond dams on the Parr side farm road route.

Another of Braswell's sons, Mark Wayne Braswell, testified he began working for
his father in 1979 or 1980 at age fourteen; he is now responsible for cultivating and
maintaining row crops. Mark explained his family accessed the Braswell Property
from roads on both sides of the property, but certain pieces of farming equipment
were too heavy or too wide to use the alternate route on the Parr side. According
to Mark, to safely maneuver the combine requires a road width of approximately
twenty feet. The Braswells grew row crops along the Ballentine side of their
property, and workers regularly and frequently used the dirt road across the Amick
Property to access these crops and transport large farming equipment. For as long
as Mark could remember, when the Braswells needed to access that area, they used
the dirt road on the Amick Property.

Mark further testified that Amick put up gates to block the road shortly after
Amick bought the property. Although Mark had a key, there were occasions when
the lock had been changed and Mark had to remove the gates from their hinges to
reach the Braswell Property. Mark believed Amick installed the gates to corral his
animals and keep them away from the Braswell crops.

According to Braswell, the dirt road has existed since at least the mid-1960s when
he first started leasing land from Miller. 4 Braswell recalled that Johnson's father
used the dirt road to access his airplane, and Braswell leased land from Miller in
the area where Johnson's father kept the plane. He noted the posts on either side of
the road had been there since before Amick bought the property, but he could not
remember which prior owner erected the posts. Braswell had no problem with
Amick installing the gates until Amick started changing the locks.

Amick's ex-wife testified the Amick Property was overgrown when the family
purchased it and it took Amick and their son two to three years to clear the land;
she claimed there was no way to drive through the property prior to this clearing.
She said Amick put up the gates around 1994 "[b]ecause he liked his privacy and

4
In 1964, Miller conveyed property to the southeast of the Braswell Property and
reserved an easement for ingress and egress to what is now the Braswell Property.
However, there is no evidence to suggest Miller's right to use the easement was
ever assigned.
he didn't want people driving on his land." Amick's friend, Mark Richardson, also
testified the property was overgrown and that it took Amick and his son two or
three years to clear it.

Amick's wife testified traffic on the road increased significantly in 2007. She
noted, "Not only trucks, there were other people. There were people, we actually
had one that had a fishing boat in the back of their truck that came out and we have
had men and women, older men and women, several people have come across our
property."

Amick testified that when he bought the land, it was overgrown and you could only
pull off the driveway a little. However, he admitted a four-wheel drive vehicle
could access the property once he and his son started clearing it.

Although Amick and his witnesses claimed the land was overgrown when Amick
bought it in 1988—and that it took two to three years to clear it—photos in the
record show the dirt road existed prior to Amick's purchase of the tract. The road
is visible in aerial photographs of the property taken in 1981 and 1989. Amick
admitted he initially gave Braswell permission to cross his property—until
Braswell began "abusing the situation." Eventually, Amick changed the locks to
keep people out, including "[t]he Braswells, everybody that was going fishing,
people going hunting coming after dark, people of the public in general." Amick
also complained that Braswell and others using the route began inching further and
further onto his property. So, in 2018, he parked trailers across the dirt road to
keep people from using it.

Amick contends that because Miller must have given Braswell permission to use
the road while she owned the property (before her 1964 sale to Bedenbaugh),
Braswell's use cannot ripen to a prescriptive easement. However, Braswell
testified he started leasing land from Miller "in the middle of the late '60s."
Miller's grandson (Johnson) testified that when he was nine or ten in 1962 or 1963,
he visited his grandmother's property and used the road to access his father's
airplane. Johnson believed Braswell was not cultivating the fields in the early
1960s when his father had the airplane. However, Braswell recalled Johnson's
father driving to the airplane. It is unclear from the record whether Miller had
already conveyed the 4.04 acres at issue (and now part of the Amick Property)
prior to Braswell's leasing the property and using the dirt road. Further, there is no
evidence Braswell had permission from any other prior property owner to use the
dirt road. Therefore, we find the record lacks evidence of permissive use sufficient
to render erroneous the circuit court's finding of a prescriptive easement.
Nor was the circuit court's finding that Braswell had a 12.5-foot easement over the
Amick Property controlled by an error of law. Although the circuit court did not
specifically use the words "open" and "notorious" in its order, it addressed whether
Braswell used the easement "in a manner that was adverse and under a claim of
right contrary to" the owners of the Amick Property. See Simmons, 419 S.C. at
231, 797 S.E.2d at 391 ("[T]he third element of a prescriptive easement 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."). As the circuit
court's finding tracks the supreme court's Simmons language and is supported by
evidence in the record, we disagree with Amick's contention that the circuit court's
failure to use the terms "open and notorious" constitutes reversible error.

In sum, we find the evidence in the record supports the circuit court's finding that
Braswell has a prescriptive easement. Aerial photos from the 1980s show a dirt
road or clearing on the Amick Property running along the side of the Ballentine
Property and ending at the Braswell Property, even though Amick claims the entire
property was overgrown and inaccessible at that time. These photographs support
Braswell's claim and the circuit court's finding that Braswell was able to
continuously use the road. And, because the road goes directly onto the Braswell
Property from the Amick Property, we find Braswell's use of the dirt road was
visible, apparent, and discoverable by ordinary diligence. See Taylor v. Heirs of
William Taylor, 419 S.C. 639, 651, 799 S.E.2d 919, 925 (Ct. App. 2017) ("For
possession to be open and notorious, 'the legal owner need not have actual
knowledge the claimant is claiming property adversely, [but] the hostile possession
should be so notorious that the legal owner by ordinary diligence should have
known of it.'" (alteration by court) (quoting Jones v. Leagan, 384 S.C. 1, 13–14,
681 S.E.2d 6, 13 (Ct. App. 2009)).

Conclusion

Based on the foregoing, the circuit court's order declaring Braswell has a
prescriptive easement over the Amick Property is

AFFIRMED.

THOMAS and HEWITT, JJ., concur.