B. Elements

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

B. Elements

For a century, South Carolina courts said that to establish a prescriptive easement, a party had to show: (1) continued and uninterrupted use or enjoyment of the right for a period of 20 years; (2) the identity of the thing enjoyed; and (3) use or enjoyment that is either adverse or under claim of right.¹⁵ Moreover, courts said that the third element could be established either through "adverse use" or a "claim of right." In Simmons v. Berkeley Elec. Coop., Inc.,¹⁶ the South Carolina Supreme Court rejected that proposition and in effect rewrote the elements.¹⁷ Under its ruling the claimant now has to:

(1) identify the thing enjoyed
(2) show his or her use has been open, notorious, continuous, uninterrupted, and contrary to the true property owner's rights for a period of 20 years.

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Notes:

^[15] Williamson v. Abbott, 107 S.C. 397, 93 S.E. 15 (1917). See also Bundy v. Shirley, 412 S.C. 292, 304, 772 S.E.2d 163, 169-70 (S.C. 2015). Some courts in other jurisdictions require that the use be "exclusive." Comment, Balancing Interests: How the Prescriptive Easement Doctrine Can Continue to Efficiently Support Public Policy, 50 Wake Forest L. Rev...