A. Definition

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

A. Definition

"A prescriptive easement is not implied by law but is established by the conduct of the dominant tenement owner."¹ It should be distinguished from easements implied by prior use and implied by necessity which have different elements and apply to different factual scenarios.² Prescriptive easements generally arise when a claimant makes use of the easement without permission of the servient owner and as a result acquires an easement without compensating the owner for it.³ Property receiving the benefit of an easement is called the dominant estate, while property burdened by it is called the servient estate.⁴

The burden is on the party claiming a prescriptive easement to prove all the elements.⁵ Because a prescriptive easement results in diminished rights, the claimant seeking one has the burden of proving those elements by clear and convincing evidence.⁶ The determination that an easement exists is a question of fact in a law action, but the determination of the extent of the grant of an easement is in equity.⁷ A prescriptive easement is generally limited to the use acquired by prescription.⁸

Relatively few South Carolina cases that have discussed prescriptive easements. However, adverse possession jurisprudence may be helpful. Decisions on adverse possession are instructive because the right to an easement by prescription is substantially the same in quality and characteristics as acquisition of title by adverse possession.⁹ However, the prescriptive easement doctrine is narrower in that it can only be used to award an easement that grants the dominant owner the right to use the property in a specific way while adverse possession generally awards a possessory interest in the land at issue.¹⁰

An action for a prescriptive easement may be the primary one,¹¹ or may be raised as a defense.¹² It may be brought as a request for an injunction,¹³ or for a declaratory judgment.¹⁴

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Notes:

^[1]Boyd v. BellSouth Tel. Tel. Co., 369 S.C. 410, 419, 633 S.E.2d 136, 141 (2006).

^[2]Boyd v. BellSouth Tel. Tel. Co., 369 S.C. 410, 633 S.E.2d 136 (S.C. 2006).

^[3] Comment, Balancing Interests: How the Prescriptive Easement Doctrine Can Continue to Efficiently Support Public Policy, 50 Wake Forest L. Rev. 1253, 1254 (2015) (prescriptive easement can also arise when parties agree to create servitude, but failed to do so because they either did not put their agreement in writing or some other formal requirement for creating it was missing). Note that on...