In The Court of Appeals

Jennifer W. Richburg and Brock Richburg,        Respondents/Appellants,


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Unpublished Opinion No. 2003-UP-445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   


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 court’s 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 court’s denial of their motion for summary judgment as to Thomas Concrete’s counterclaim for damages to its building after the Richburgs allegedly graded their property in a manner that caused surface water to run onto Thomas Concrete’s land in increased quantities.  We find no error.


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 Concrete’s 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 Concrete’s 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.


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).


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 Askins’s 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 claimant’s 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 Concrete’s 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, you’d 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 “didn’t 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 don’t 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 one’s 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 plaintiff’s 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 Concrete’s counterclaim for damages from surface water runoff.  Pursuant to the supreme court’s 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 court’s denial of their summary judgment motion as to Thomas Concrete’s counterclaim.


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.