On Wednesday, May 6, 2015, the South Carolina Supreme Court published a decision in Bundy v. Shirley. This was a declaratory action where Bundy sought a determination of whether Shirley established a prescriptive easement over a road on rural property owned by Bundy.
Shirley, whose property was landlocked by surrounding owners, used the disputed road on Bundy’s property from 1985 to 2004 for ingress and egress to his property. Shirley received permission from Bundy to erect a gate over the disputed road in an effort to limit public access. Bundy hired a logging company to clear out pine trees on the land and the logging truck blocked access to Shirley’s property. A dispute between Shirley and Bundy followed leading Bundy to file the declaratory judgment action.
The special referee assigned to the case found that Shirley was entitled to the easement. The court of appeals reversed. This Court granted Shirley’s petition for a writ of certiorari to review the decision and affirms as modified.
Shirley argued that the court of appeals violated his procedural due process under the 14th amendment by denying his petition for rehearing. The Court found this issue was moot as Shirley received the requested relief when this Court granted his petition for a writ of certiorari.
Shirley also argued that the court erred in reversing the referee’s grant of a prescriptive easement. The Court outlined the requirements to establish a prescriptive easement, one must show: (1) continued and uninterrupted use or enjoyment of the right for a period of twenty years; (2) the identity of the thing enjoyed; and (3) use or enjoyment which is either adverse or under claim of right. Pittman v. Lowther, 610 S.E.2d 479-80 (2005). Note that this Court joined the majority of state jurisdictions by holding that a party claiming a prescriptive easement has the burden of proving all elements by clear and convincing evidence. Ultimately, the Court rejected Shirley’s procedural issues raised in challenging the court’s decision and held as a matter of law that Shirley’s permissive use of the property defeated his acquisition of a prescriptive easement. As well, the Court found that the court of appeals correctly found that Shirley could not tack the Bennett (predecessors) family’s use to establish his prescriptive easement claim.
Therefore, Court affirmed the court of appeals reversal of the referee’s grant of a prescriptive easement to Shirley, and modified the decision holding that a party claiming a prescriptive easement has the burden of proving all elements by clear and convincing evidence.