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2012-UP-060 - 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Unpublished Opinion No. 2012-UP-060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.