Austin v. Stone

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

John D. Austin, Respondent,

v.

Jane Harden Stone, Appellant.

Appeal From Richland County

Joseph M. Strickland, Circuit Court Judge

Unpublished Opinion No. 2012-UP-060

Heard December 7, 2011 – Filed February 1,
2012   

AFFIRMED

William E. Booth, III, of West Columbia,
for Appellant.

Ronald R. Hall, of West Columbia, for
Respondent.

PER CURIAM:  Jane Harden Stone appeals the ruling of the
Master in Equity granting a 20 foot wide easement to John D. Austin over,
through and across Stone's property.  We affirm.

1) As to Stone's
argument that the master erred in establishing the width of the prescriptive
easement at 20 feet, no evidence was presented that the width should be 12.5
feet and plats were presented that showed the easement was 20 feet.

2) As to Stone's
argument that the master erred in finding Austin's use of the drive was not
permissive, there was sufficient evidence for the master to find a prescriptive
easement by claim of right for Austin.  The totality of circumstances
established his claim of right.  See Hartley v. John Wesley United
Methodist Church of John's Island, 355 S.C. 145, 151, 584 S.E.2d 386, 389 (Ct.
App. 2003) (stating that for a party to earn a prescriptive easement under
claim of right he must show that he had the right to use the road based on
totality of the circumstances).

3) As to Stone's
argument that the master erred in finding that Austin showed continuous and
uninterrupted use of the entire driveway for 20 years, the master found that
the requirement of 20 years continuous use had been met by Austin since he
purchased the property in 1980.  See Matthews v. Dennis, 365 S.C.
245, 249, 616 S.E.2d 437, 439 (Ct. App. 2005) (stating that the establishment
of a prescriptive easement requires the continued and uninterrupted use of the
right for 20 years).  The determination of the existence of an easement is a
question of fact in an action at law.  See Hardy v. Aiken, 369 S.C. 160,
165, 631 S.E.2d 539, 541 (2006) (stating the existence of an easement is
determined by an action at law).  The findings of the judge in a case at law
will not be disturbed upon appeal without evidence to support the judge's
finding.  See Townes Assocs., Ltd. v. City of Greenville, 266
S.C. 81, 86, 221 S.E.2d 773, 775 (1976) (stating findings of fact by a judge
are not disturbed on appeal unless found to be without evidence to support the
findings).

4) As to Stone's
argument that the terminus of the easement was owned by SCE&G, there was no
finding by the master on this issue therefore it was not preserved for appeal.  See Elam v. S.C. Dep't of Transp., 361 S.C. 9, 23, 602 S.E.2d
772, 779-80 (2004) (stating that an issue must be raised and ruled on to be
preserved for appeal).

5) The final
argument by Stone was that the master erred in granting a prescriptive easement
because the evidence showed that the easement did not have one of its termini
in the dominant property.  Stone did not
ask the master to hold that if an easement did exist, it was in gross rather
than appurtenant.  Accordingly, the master did not need to consider whether the
easement had one terminus on Austin's land.  See Windham v. Riddle,
381 S.C. 192, 201-202, 672 S.E.2d 578, 583 (2009) (stating "an appurtenant
easement inheres in the land, concerns the premises, has one terminus on the
land of the party claiming it, and is essentially necessary to the enjoyment
thereof," and "[u]nless an easement has all the elements necessary to
be an appurtenant easement, it will be characterized as a mere easement in
gross."). 

AFFIRMED.

HUFF, PIEPER,
and LOCKEMY, JJ., concur.