Brief Fact Summary.
Plaintiff sued Defendant, alleging that she possess an easement by necessity or by pre-existing use to a driveway, which Plaintiff used for years before Defendant blocked it with a fence. A special referee heard the case and granted summary judgment in Defendant’s favor.
Synopsis of Rule of Law.
An easement by pre-existing use arises where an easement is reasonably necessary for enjoyment of the dominant estate.
BellSouth Telephone Telegraph Co., Inc. (Defendant) owned a parcel of land in Denmark, South Carolina. The parcel was bound on three of its sides by public streets. A three-story building sat on the front portion of the parcel. Defendant later built a driveway extending from the double doors at the back of the building to the street behind the home. In 1988, Defendant divided the parcel in two and sold the front lot to the City of Denmark (the City). The City used the property, including the driveway, for about three years before conveying the property to Caroline Boyd’s (Plaintiff’s) husband. Plaintiff’s husband then conveyed the lot to Plaintiff for Plaintiff’s antique business. Part of the Boyds’ decision to purchase the property was based on the accessibility of the driveway. For years, Plaintiff used the driveway to receive deliveries that were too large to receive through the front entrance. However, after the terrorist attack in 2001, Defendant decided to increase security by installing a fence around its lot. The fence ran along Plaintiff’s back property line and cut off her access to the driveway. Plaintiff sued Defendant, arguing that she possessed an easement by necessity or by pre-existing use. A special referee heard the case and granted summary judgment in Defendant’s favor.
Whether an easement by pre-existing use arises where an easement is reasonably necessary for enjoyment of the dominant estate.
Yes. The special referee’s ruling is reversed. An easement by pre-existing use arises where an easement is reasonably necessary for enjoyment of the dominant estate.
An easement by necessity exists if there is: (1) unity of title; (2) severance of title; and (3) necessity of the easement. Under this doctrine, the element of necessity requires more than mere inconvenience in the absence of an easement. Necessity exists when there is no other way to access the dominant estate. The driveway is not the only means to access the dominant estate because public streets run along three sides of Plaintiff’s property. Therefore, the special referee properly ruled in favor of Defendant’s motion for summary judgment on this issue. An easement by pre-existing use exists if: (1) the dominant and servient estates are from a common grantor; (2) the use was existent at the time of severance; and (3) the use was apparent, continuous, and necessary for enjoyment of the dominant estate. Under this doctrine, if there is no other reasonable way to enjoy the dominant estate, an easement is deemed necessary. Before conveying the front parcel to Plaintiff, Defendant was the common owner of both parcels. At the time Defendant severed the parcel, it used the driveway to access the back doors of the building. This use was both apparent and continuous. The City also used the driveway during its period of ownership. The only issue is whether driveway access is necessary for the enjoyment of Plaintiff’s property. Plaintiff’s property is accessible through its front entrance and its back doors. Plaintiff can only receive large deliveries through the back doors, which is only accessible through the driveway. Thus, a reasonable question of fact exists as to whether use of the driveway is reasonably necessary for Plaintiff’s enjoyment of the property.