A farmer in Newberry County, SC, purchased land that was cut off from the main road. To access his land, he habitually used a dirt road on land owned by a neighbor. This went on for years. At first, the neighbor on the adjacent parcel gave the farmer permission to use the dirt road, but after many years, he no longer wanted the farmer using the road.

Should the farmer have the right to use the neighbor’s land to access his own farm? Or does the neighbor have the right to deny the farmer access to the dirt road on his land?

What do you think?

Easements: Rights to Land You Don’t Own

The scenario above is real, and it’s at the center of the 2024 South Carolina Court of Appeals case Braswell v. Amick (read it here).

The court ruled that the farmer, James L. Braswell, Sr., does have the right to use the dirt road partially located on land owned by his neighbor, James F. Amick.

But why should someone have rights to another’s land? Because of easements. In this case, a prescriptive easement, to be exact.

An easement is the right a party has to land owned by another for a specific purpose. Many common easements, such as utility easements, are typically established by contract, deed, or other legal instrument.

In contrast, a prescriptive easement is not established through documentation but through habitual land use. The party claiming the easement must show open, continuous, and adverse use of the land for a certain period of time to establish the easement.

We previously covered prescriptive easements in a blog here on the Supreme Court of South Carolina case Simmons v. Berkeley Electric Cooperative (2016). The Braswell case aligns with and reinforces the Simmons decision. (Note that the Braswell opinion goes into exceptional detail, but this blog will only address the pertinent background and facts.)

Factors to Establish a Prescriptive Easement in South Carolina

In the Simmons opinion, the court laid out the following requirements for establishing a prescriptive easement in South Carolina:

“In order to establish a prescriptive easement, the claimant must identify the thing enjoyed, and show his use has been open, notorious, continuous, uninterrupted, and contrary to the true property owner’s rights for a period of twenty years.”

Open means the use has not been stealthy or done in an attempt to hide use from the landowner.

Notorious means the use was known by the landowner or widely known in the neighborhood.

Continuous and uninterrupted means use that’s consistent over a long period of time (in South Carolina, that’s 20 years) without large pauses or gaps in use.

Contrary to the true property owner’s rights means use that is somehow disruptive, obtrusive, or otherwise unwanted by the true property owner.

Once a prescriptive easement has been established, the property owner cannot interfere with the other party’s specific rights to the land. For example, the true property owner could not block a road that the other party has rights to under a prescriptive easement.

Braswell v. Amick Background and Decision

For years, Braswell, his sons, his employees, and others accessed the Braswell Property by taking a dirt road partially located on the Amick Property. Amick was okay with this at first, and even gave Braswell a key to the gate he installed on the dirt road after buying the property. Later, he no longer wanted anyone on his property, saying that Braswell started “abusing the situation.”

Braswell then sought a judgment declaring a right-of-way over Amick’s property from Highway 76 to his (Braswell’s) farm. Amick denied the existence of the right-of-way.

The circuit court found in Braswell’s favor. Amick appealed and brought up two main issues the appeals court addressed:

1. Was Braswell’s use “open” and “notorious”?
2. Can the 20 years of continuous, uninterrupted use include time when the land in question was leased?

Let’s look at both in turn.

Issue 1: Was Braswell’s use “open” and “notorious”?

Amick contended that the circuit court erred by not applying the test set forth in Simmons correctly.

In its opinion, the appeals court says that while the exact words “open” and “notorious” were not used in the circuit court’s order, the circuit court did address whether Braswell used the land in an “adverse” manner under a claim of right contrary to Amick. It determined that he did, and adverse use implies open and notorious use. Therefore, the fact that the lower court failed to use the words “open” and “notorious” does not constitute a reversible error.

Unfortunately for Amick, it was the fact that he objected to Braswell’s use of his land after so many years that allowed Braswell to make the claim of adverse use. If Amick had given full permission to Braswell to use the dirt road, Amick could have raised a defense of permissive use, which would have undermined the requirement of using the land contrary to the true owner’s rights.

Issue 2: Can the 20 years of continuous, uninterrupted use include time when the land in question was leased?

Braswell leased land for a time from Sula Miller in order to run his farm before purchasing the land in 1972. Amick contended that during that time, Miller presumably gave Braswell the right to use the land he now claims a right-of-way on. Therefore, that time period cannot be counted towards the 20 years of “continuous, uninterrupted” use as required to establish a prescriptive easement, since use during that time was not adverse, argued Amick.

The appeals court disagreed. It ruled that Braswell did satisfy the requirement of 20 years of “continuous, uninterrupted” land use to establish a prescriptive easement, as there was no evidence of permissive use at the time in the record. The court also cited previous case law (specifically, Simmons and Kelley v. Snyder [SC Court of Appeals, 2012]) rulings that the 20-year time period can be satisfied by “tacking” together periods of adverse land use on the same land as long as those periods were continuous and uninterrupted.

Additionally, aerial photos from the 1980s show a dirt road on the present day Amick Property running to the present day Braswell Property, countering Amick’s testimony that the land was overgrown and inaccessible for a period of time. “These photographs support Braswell’s claim and the circuit court’s finding that Braswell was able to continuously use the road,” says the court.

You Must Be Proactive in Preventing Prescriptive Easements from Being Established

Ultimately, the SC Court of Appeals affirmed the lower court’s decision in favor of Braswell. He now has the right to use the dirt road partially located on Amick’s land, and Amick can’t stop him from doing so.

If you are looking to establish a prescriptive easement, you can see the factors (listed above) that are required in South Carolina. You can also see that in recent years, some important decisions coming out of South Carolina’s courts have been favorable to parties seeking a prescriptive easement.

But if you are a landowner who wants to prevent a prescriptive easement from being established, you need to be proactive when you see parties using your land. Some options:

• Stop the land use: Post “no trespassing” signs, erect fences or other physical barriers, send written notices to the party using your land to stop, and/or speak with an attorney about legal actions you can take
• Give permission: Allow the party to use the land so the land use is permissive rather than adverse; be sure to document this in writing and provide a copy to the party using your land
• Sell the land: Consider selling part of the land outright to the party using it

(Note: This list is not exhaustive and does not constitute legal advice.)

Once a prescriptive easement is established, it’s hard to have it reversed. An easement on your property can mean loss of privacy, loss of control, inconvenience, and disruption for you. It can also affect your property’s value and your ability to sell it in the future by complicating or clouding the title and turning potential buyers off.

Call Attorney Gem McDowell for Legal Help and Advice

For help with commercial land transactions, contracts, and more, contact Gem and his team at the Gem McDowell Law Group. He helps individuals, families, and businesses in South Carolina from his offices in Myrtle Beach and Mount Pleasant, SC. Gem is a problem solver who can help you avoid mistakes and protect your interests. Schedule an appointment or a complimentary consultation by calling 843-284-1021 today.