Ever Wondered Why That Storm Drain is in Your Yard?


January 17, 2017 10:46 am, Published by
Telephone pole against a bright blue sky.
Have you ever wondered why that storm drain or telephone pole is in your backyard, or why the telephone company can come dig up your yard and you can’t do anything to stop them?

The answer: Easements. An easement is a right someone has over land owned by someone else.

Many easements are documented (and will be discovered in a title search when buying a piece of property) but others are not. When a party makes a claim on a land without permission for an extended period of time, it may result in a “prescriptive easement.” It’s up to the property owner to take action against someone making a claim on their land to prevent such an easement from becoming established.

That’s the central legal issue in a case that recently was decided by the Supreme Court of South Carolina, in which a Johns Island man took utility companies to court for claims on his newly purchased land. Before getting into the case, let’s talk more about easements first.

What Easements Are

Some examples of common easements are:
  • Right of railroad company to install railroad tracks
  • Right of utility company to install electric lines, water mains, etc.
  • Rights of way allowing others to enter or cross the property, for example to reach a beach or roadway
An example of a prescriptive easement may be when a trespasser gains rights to some land after occupying it in a manner determined by state statute.

These are examples of positive easements, which allows for something to happen. Negative easements prevent something from happening. For example, a light-and-air easement may prevent someone from building an addition to their house that would block the view of their neighbors.

How Prescriptive Easements Are Established in South Carolina

To establish a prescriptive easement in South Carolina, three things must be shown:
  1. There was continued and uninterrupted use for a period of twenty years,
  2. The identity of the thing enjoyed,
  3. The use was adverse under claim of right.
To show adverse use, the use of the land must have been enjoyed “openly, notoriously, continuously, and uninterruptedly, in derogation of another’s rights.”

What does it mean to use land “openly” and “notoriously”? That’s one of the main legal issues in the case in hand.
Telephone pole against a bright blue sky.

Simmons v Berkeley Electric Cooperative

Roosevelt Simmons bought two parcels of undeveloped wooded land on Johns Island in 2003. Two previous owners had granted easements to Berkeley Electric, one in 1956 and one in 1972, to construct and keep transmission lines on the property.

In 1977, Charleston County authorized St. John’s Water to put in a water main along the road, using an “encroachment permit,” and the water main was completed in 1978. In 2005, Simmons found a water meter under some bushes on his property. He contacted the water company, who said they would not move the water main.

Simmons took action against Berkeley Electric and St. John’s Water over trespassing and unjust enrichment. Both companies moved for summary judgment, a judicial procedure commonly used when parties agree on the facts of the case and want to avoid or simplify the trial process, and received a ruling in their favor. The case went to the Court of Appeals, which also determined that Berkeley Electric and St. John’s Water had rights to use Simmons’ property, as both had established prescriptive easements.

A request for the Court of Appeals to rehear the case was denied, and the case was taken up by the South Carolina Supreme Court.

Failing the Test

In its decision (PDF), the Supreme Court agreed that Berkeley Electric had established a prescriptive easement. However, it didn’t agree that St. John’s Water had. That’s because St. John’s Water failed the “open, notoriously, continuously, and uninterruptedly” part of the test to establish a prescriptive easement.

Though the use was continuous and uninterrupted, it was not open and notorious. The water main was located in the ground and the water meter was discovered by Simmons under a bush, and therefore the use was not open. To be “notorious,” something “is actually known to the owner, or is widely known in the neighborhood.” The Court didn’t find clear and convincing evidence that neighbors or Simmons himself knew the location of the water main, which is what they would have had to prove.

Simmons did what any landowner who wants to protect their property rights should do – he took action. By ignoring someone else’s claim on your land, you may be helping them establish limited legal rights to it.

Contact Commercial Real Estate Attorney Gem McDowell About Your Property

Easements and property rights can be complex legal issues that need the advice of an experienced commercial real estate attorney. Gem McDowell has over 20 years of experience handling complex real estate transactions in South Carolina, including easements.

Call the Law Office of Gem McDowell in Mount Pleasant to reach Gem and his associate Lauren so they can help you with your commercial real estate transaction today. Schedule your free initial consultation today by calling (843) 284-1021 or filling out this contact form online.


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