THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Jennifer W. Richburg and Brock Richburg,
Respondents/Appellants,
v.
H.L. Thomas d/b/a Thomas Concrete,
Appellant/Respondent.
Appeal From Clarendon County
Thomas W. Cooper, Jr., Circuit Court
Judge
Unpublished Opinion No. 2003-UP-445
Submitted May 12, 2003 Filed June
26, 2003
AFFIRMED
M.M. Weinberg, Jr. and M.M. Weinberg, III, both
of Sumter; for Appellant-Respondent.
Kristi F. Curtis, of Sumter;
for Respondent-Appellant.
PER CURIAM: In this cross appeal, Thomas
Concrete appeals the trial courts grant of summary judgment to Brock and Jennifer
Richburg on their cause of action for the removal of a septic tank that encroaches
upon their property. The Richburgs appeal the trial courts denial of their
motion for summary judgment as to Thomas Concretes counterclaim for damages
to its building after the Richburgs allegedly graded their property in a manner
that caused surface water to run onto Thomas Concretes land in increased quantities.
We find no error.
FACTS/PROCEDURAL HISTORY
The Richburgs and Thomas Concrete own
adjacent parcels of land. Thomas Concrete purchased its land in 1990 from C.B.
Askins Corporation. Askins purchased the land in 1974 and installed a septic
tank the same year. The septic tank has been in its current location since
that date.
The Richburgs purchased their parcel in 1998, and
shortly thereafter, they rented a backhoe to clear the land. H.L. Thomas, owner
of Thomas Concrete, informed the Richburgs of the location of the septic tank
so it would not be damaged by the backhoe. When the Richburgs had their property
surveyed, it was discovered that the septic tank and its appurtenant drainage
field were located entirely on their property. After determining there were
no easements or references made to the septic tank in the platting or chain
of title, the Richburgs sued Thomas Concrete to have the septic tank removed
from their property.
Thomas Concrete answered, asserting it had acquired
ownership of the land over the septic tank and its drainage field by adverse
possession. Thomas Concrete also filed a counterclaim against the Richburgs
seeking recovery for damages caused to its building by surface water flowing
from the Richburgs property. The Richburgs moved for summary judgment as to
both their claim and Thomas Concretes counterclaim. The trial court granted
the Richburgs summary judgment motion on their claim, ruling Thomas Concrete
failed to establish that it acquired the land through adverse possession. Specifically,
the trial court found Thomas Concrete failed to establish possession that was
open, notorious, exclusive, or hostile. However, the trial court denied the
Richburgs motion for summary judgment as to Thomas Concretes counterclaim
for damages from the surface water runoff, finding genuine issues of material
fact existed as to whether the runoff created a nuisance. Both parties appeal.
STANDARD OF REVIEW
Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. Conner v. City of Forest Acres, 348 S.C. 454, 462,
560 S.E.2d 606, 610 (2002). When determining whether triable issues of fact
exist, all evidence and reasonable inferences drawn therefrom are viewed in
the light most favorable to the nonmoving party. Osborne v. Adams, 346
S.C. 4, 7, 550 S.E.2d 319, 321 (2001). An appellate court uses the same standard
applied by the trial court when reviewing the grant of summary judgment. Id.
If the facts and the inferences indicate genuine issues of material fact exist,
those issues must be presented to the jury. Worsley Cos. v. Town of Mt.
Pleasant, 339 S.C. 51, 55, 528 S.E.2d 657, 660 (2000).
LAW/ANALYSIS
I. Grant of Summary Judgment
on the Encroachment Claim
Thomas Concrete alleges the trial court erred when
it granted the Richburgs motion for summary judgment on their claim to remove
the septic tank, arguing a genuine issue of material fact existed as to whether
it owned the property above and appurtenant to the septic tank through adverse
possession. We disagree.
The party claiming title to property through adverse
possession must establish by clear and convincing evidence possession that is
actual, open, notorious, hostile, continuous, and exclusive for the full statutory
period. Clark v. Hargrave, 323 S.C. 84, 87, 473 S.E.2d 474, 477 (Ct.
App. 1996). The statutory period in South Carolina is ten years. S.C. Code
Ann. § 15-67-210 (1976). Adverse possession was asserted as an affirmative
defense in this action, and the burden of proof was therefore upon Thomas Concrete.
Clark, 323 S.C. at 88, 473 S.E.2d at 477.
First, we address whether Thomas Concrete meets
the ten-year statutory period. The Richburgs commenced this action in 1998,
only eight years after Thomas Concrete purchased its property. Because Thomas
Concrete is not an heir of the prior owner, it cannot tack Askinss period of
ownership to fulfill the ten-year statutory period. Getsinger v. Midlands
Orthopaedic Profit Sharing Plan, 327 S.C. 424, 429-30, 489 S.E.2d 223, 225
(Ct. App. 1997) (stating that tacking under the ten-year statute is only allowed
between an ancestor and an heir). On the other hand, Thomas Concrete has satisfied
the twenty-year time period required for presumption of a grant by tacking its
time of ownership with that of Askins. Id., 327 S.C. at 430, 489 S.E.2d
at 225-26 (stating that South Carolina common law recognizes a twenty-year presumption
of a grant, pursuant to which tacking is allowed between ancestors and heirs
as well as between parties in privity). The elements of adverse possession
must also exist for the twenty-year time period when claiming under presumption
of a grant. Id. Accordingly, we must analyze whether a genuine issue
of material fact existed regarding the required elements of adverse possession.
A claimants ownership is open and notorious when
the true owner has actual notice of the adverse use throughout the statutory
period or when the claimant uses the property in such a manner that any reasonable
person would believe the claimant is the owner. See Graniteville Co.
v. Williams, 209 S.C. 112, 120-21, 39 S.E.2d 202, 206 (1946) (stating actual
knowledge of the adverse claim is not necessary where the possession is so open,
visible, and notorious that the true owner should have knowledge of the adverse
character of the claim). In support of Thomas Concretes claim that its possession
was open and notorious, Mr. Thomas testified that the soil above the septic
tank is red clay while the remainder of the Richburgs property has no red clay.
He specifically stated: Just take a shovel, youd know [the clay] was hauled
in.
Importantly, however, Mr. Thomas admitted there was
grass growing over the septic tank. Accordingly, one would have to dig beneath
the surface to discover the red clay. Mr. Thomas also admitted that the area
around the septic tank had never been fenced and its location had never been
identified with signs or markers. In fact, Mr. Thomas stated that no signs
or fences were put in place because he didnt know exactly where [the septic
tank] was at. When asked if the septic tank had ever been excavated or if any
work had ever been performed on it, Mr. Thomas replied, No. We dont use it
very much. Finally, Mr. Thomas stated that a person could not tell from looking
at the land where the septic tank was located.
Because the septic tank is underground, we find it
difficult to conceive how the Richburgs should have reasonably known that Thomas
Concrete adversely claimed ownership of the land within which the tank was buried.
There is no evidence indicating that Thomas Concrete exercised dominion over
the land above the septic tank so as to place the Richburgs on notice of its
claim of possession. See Gilinsky v. Sether, 66 P.3d 584, 590
(Or. App. 2003) (finding adverse possession was established and noting: [W]e
question whether an underground septic system by itself constitutes an open
and notorious use of disputed parcel of property. Nonetheless, the area above
the septic system was used for parking [by the claimant] . . . .). (emphasis
added). See also Clark, 323 S.C. at 90, 473 S.E.2d at 478 (finding
that claimant established open and notorious possession by posting no trespassing
and no hunting signs and controlled access to the property by locked gate).
Without a fence, a sign, or other visible demarcation, and because Thomas Concrete
did not use the land above the tank in a manner that should have placed a reasonable
person on notice that it claimed ownership, we find the trial court properly
ruled as a matter of law that Thomas Concrete did not establish open and notorious
possession of the disputed land.
We also find Thomas Concrete failed to establish the
requirement of exclusive possession of the disputed property. Thomas Concrete
asserts it and Askins were the only ones to have used the property where the
septic tank was located since 1974. Exclusive possession means that adverse
possession must be such as to indicate ones exclusive ownership of the property,
and not only must the possession be without subservience to or recognition of
the title of the true owner but it must also be hostile as to the whole world.
Curtis v. DesChamps, 290 S.C. 315, 324-25, 350 S.E.2d 201, 207 (Ct. App.
1986). Here, Askins and Thomas Concrete may have been the only users of the
actual septic system, but this fact is not dispositive of whether the parties
had exclusive possession of the land above the septic tank. Because we find
no evidence in the record that Thomas Concrete or Askins maintained exclusive
ownership of the land above the tank, we find the trial court properly granted
summary judgment in favor of the Richburgs. [1]
II. Prescriptive Easement Claim
Thomas Concrete contends the trial court erred when
it found that Thomas Concrete failed to establish a prescriptive easement to
use the property for its septic tank. We disagree.
Thomas Concrete did not plead a prescriptive easement
in its answer, and the trial court did not address any argument relating to
a prescriptive easement in its written order. The only reference made to a
prescriptive easement was during the hearing on summary judgment where the trial
court stated:
So the fact that it was not open, that it was not exclusive,
indeed that it was not possible as the case is defeats the adverse possession
claim. The prescriptive right of easement is defeated by the same fact, that
it was not open.
Prescriptive easements do not require exclusive use because
it assumes that the use is shared by someone else and normally has to do with
roads that people are using in common, things of that nature.
But the use must be open in any event once again to allow
the rightful owner to object if he or she so chooses. None of those things
are present in this particular case and for that reason[,] the plaintiffs motion
for summary judgment on its cause of action as to the removal of those encroachments
is granted.
Thomas Concrete never raised the prescriptive easement
issue during the trial, and the trial court did not rule upon it in its written
order; thus, the issue is not preserved for our review. Holy Loch Distribs.,
Inc. v. Hitchcock, 340 S.C. 20, 24, 531 S.E.2d 282, 284 (2000). In any
event, Thomas Concrete cannot establish a prescriptive easement because it presented
no evidence of use which is adverse to that of the Richburgs. See Revis
v. Barrett, 321 S.C. 206, 209, 467 S.E.2d 460, 462 (Ct. App. 1996) (stating
that to establish an easement by prescription, a claimant must prove continued
use for twenty years, the identity of the thing enjoyed, and use which is either
adverse or under a claim of right).
III. Denial of Summary Judgment as
to the Counterclaim
The Richburgs appeal the denial of their summary
judgment motion as to Thomas Concretes counterclaim for damages from surface
water runoff. Pursuant to the supreme courts recent decision in Olson v.
Faculty House of Carolina, Inc., Op. No. 25632 (S.C. Sup. Ct. filed April
28, 2003 Shearouse Adv. Sh. No. 16 at 24), we find this issue is not ripe for
appeal.
In Olson, the court noted that the denial
of summary judgment does not fully determine anything about the merits of the
underlying cause of action and does not have the effect of striking any defense
because that defense may be raised again later in the proceeding. Id.
(citing Ballenger v. Bowen, 313 S.C. 476, 443 S.E.2d 379 (1994)). While
in the past this court has, in its discretion, heard an appeal from the denial
of summary judgment where there was another appealable issue before the court,
that is no longer the rule in South Carolina. Olson expressly holds
the denial of a motion for summary judgment is not appealable, even after final
judgment. In so holding, the supreme court expressly overruled cases that
are inconsistent with this rule. Id. Accordingly, we dismiss the Richburgs
appeal from the trial courts denial of their summary judgment motion as to
Thomas Concretes counterclaim.
AFFIRMED.
CONNOR and STILWELL, JJ.,
concur.
[1] Having found that Thomas Concrete failed to establish the existence
of any issue of material fact regarding possession that is open, notorious,
and exclusive, we need not address the element of hostility.