Buyck v. Jackson

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. Peter Buyck, Jr., Respondent,

v.

William C. Jackson, Appellant.

Appellate Case No. 2012-212463

Appeal From Calhoun County
Diane Schafer Goodstein, Circuit Court Judge

Unpublished Opinion No. 2014-UP-082
Heard January 7, 2014 – Filed February 26, 2014

AFFIRMED

William E. Booth, III, of Booth Law Firm, LLC, of West
Columbia, and James B. Richardson, Jr., of Columbia,
for Appellant.

Andrew Carl English, III, Mary Dameron Milliken, and,
George Albert Taylor, all of Callison Tighe & Robinson,
LLC, of Columbia, for Respondent.

PER CURIAM: This appeal arises from the circuit court's determination that
Respondent Peter Buyck, Jr. established a prescriptive easement on a road ("the
Red Road") located on Appellant William Jackson's property. On appeal, Jackson
argues the circuit court erred by: (1) refusing to presume the use of the Red Road
was permissive pursuant to the unenclosed woodlands rule; (2) finding Buyck
established a prescriptive easement; (3) determining the easement was appurtenant,
not in gross; and (4) finding Buyck may authorize the use of the Red Road to
anyone he choses. We affirm.

1. Evidence in the record supports the circuit court's finding that Jackson's
property is not unenclosed woodlands. Therefore, the circuit court did not err by
refusing to presume permissive use pursuant to the unenclosed woodlands rule.
See Crossmann Cmtys. of N.C., Inc. v. Harleysville Mut. Ins. Co., 395 S.C. 40, 46-
47, 717 S.E.2d 589, 592 (2011) ("In an action at law tried without a jury, the
appellate court will not disturb the trial court's findings of fact unless there is no
evidence to reasonably support them." (internal quotation marks omitted)); Hutto v.
Tindall, 40 S.C.L. (6 Rich.) 396, 400 (1853) (noting a distinction "between the
claim of a way through enclosed and cultivated land, and of a way over unenclosed
woodland"); id. at 401 (explaining the use of a way for twenty years through
unenclosed and uncultivated woodlands is merely permissive, but when the road
runs through enclosed and cultivated land, the use is implied to be adverse); Hogg
v. Gill, 26 S.C.L. (1 McMul.) 329, 332 (Ct. App. 1841) (providing the purpose of
the unenclosed woodlands rule is to put the landowner on notice because "[t]he
owner of the land might not know of the existence of the way, or having no
immediate use for the land, might have no inducement to oppose the use of it");
Darlington Cnty. v. Perkins, 269 S.C. 572, 576, 239 S.E.2d 69, 71 (1977) (finding
the unimproved and unenclosed woodland rule is inapplicable when the disputed
property is improved land).

2. Evidence in the record supports the circuit court's determination that Buyck
established a prescriptive easement by adverse use and a claim of right. See
Crossmann, 395 S.C. at 46-47, 717 S.E.2d at 592 ("In an action at law tried
without a jury, the appellate court will not disturb the trial court's findings of fact
unless there is no evidence to reasonably support them." (internal quotation marks
omitted)); Boyd v. Bellsouth Tel. Tel. Co., 369 S.C. 410, 419, 633 S.E.2d 136, 141
(2006) ("To establish a prescriptive easement, the party asserting the right must
show: (1) continued use for 20 years, (2) the identity of the thing enjoyed, and (3)
use which is either adverse or under a claim of right."). Specifically, evidence
supports a finding that Buyck's use was adverse because it was open, notorious,
continuous, and uninterrupted. See id. ("When the claimant has established that the
use was open, notorious, continuous, and uninterrupted, the use will be presumed
to have been adverse."). Further, the totality of the circumstances of Buyck's use
of the Red Road establishes the use was based upon a claim of right. See Hartley
v. John Wesley United Methodist Church of Johns Island, 355 S.C. 145, 151, 584
S.E.2d 386, 389 (Ct. App. 2003) (providing a party claiming a prescriptive
easement under a claim of right "must demonstrate a substantial belief that he had
the right to use the parcel or road based upon the totality of the circumstances
surrounding his use" (emphasis omitted)).

3. As to whether the prescriptive easement is appurtenant or in gross, we recognize
there is conflicting evidence in the record as to whether an alternative road
provides access to Buyck's property. However, based on our review of the
preponderance of the evidence, we find the Red Road is necessary for Buyck's
enjoyment of his property. Therefore, we affirm the circuit court's determination
that Buyck's easement is appurtenant. See Rhett v. Gray, 401 S.C. 478, 492, 736
S.E.2d 873, 880 (Ct. App. 2012) ("Determining whether an easement is in gross or
appurtenant is a question in equity because it involves the extent of a grant of an
easement."); Proctor v. Steedley, 398 S.C. 561, 571, 730 S.E.2d 357, 363 (Ct. App.
2012) ("Therefore, on appeal of such a determination, this court may take its own
view of the preponderance of the evidence."); Ballington v. Paxton, 327 S.C. 372,
380, 488 S.E.2d 882, 887 (Ct. App. 1997) (providing an "appurtenant easement
must inhere in the land, concern the premises, have one terminus on the land of the
party claiming it, and be essentially necessary to the enjoyment thereof"); Smith v.
Comm'rs of Pub. Works of City of Charleston, 312 S.C. 460, 467, 441 S.E.2d 331,
336 (Ct. App. 1994) ("[E]asements in gross are not favored by the courts, and an
easement will never be presumed as personal when it may fairly be construed as
appurtenant to some other estate." (citing 25 Am. Jur. 2d Easements & Licenses §
13 (1966))).

4. We disagree with Jackson's characterization that pursuant to the circuit court's
order, "anyone and everyone in the world" may use the Red Road. Although the
circuit court's language at the end of the order allows Buyck and those "to whom
he grants permission" to use the Red Road, we find the order, when read as a
whole, narrows who may use the road and for what purpose. Specifically, the
order defines the scope of the easement as those who performed certain activities
during the prescriptive period. Based on the entire order, the circuit court properly
restricted the use of the Red Road to the use that was established during the
prescriptive period. See Burrell v. Kirkland, 242 S.C. 201, 207, 130 S.E.2d 470,
473 (1963) (explaining the extent of a prescriptive easement is the use that
established the easement); 28A C.J.S. Easements § 233 (2013) ("Once established,
the owners of a prescriptive easement are limited to the use and frequency of use
that was established during the prescriptive period. The scope of a prescriptive
easement is determined by the scope of the use that established the prescriptive
right. . . ." (footnote omitted)).

AFFIRMED.

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