I think the second, third and fourth exceptions should be sustained. The trial in the Circuit Court proceeded on the theory that the complaint alleged a cause of action for the obstruction of an easement which plaintiffs claimed on two grounds: 1. By prescriptions. 2. As a quasi continuous and apparent easement, which was created in favor of plaintiffs' land and imposed as a burden upon defendants' land by one Reynolds, while he owned both tracts and was existing as such, when the unity of title and possession was severed.
After stating the issues and the law relative to surface water the presiding Judge instructed the jury with regard to an easement by prescription as follows: "Now, there is another thing. There is such a thing as an easement whereby you can get a right — buy a right — to go through a man's land, and you have that right; you have a deed to that. Or if some of your former grantors, persons who owned this land long before you did, had the right to go through there, cut a ditch through there, and the owners of the land through which this ditch goes allow it to stay open there, allow it to be used for twenty years or more, without objection or trouble, for twenty years or more, then an easement is acquired through that land; then it cannot be *Page 258 stopped. If it is allowed to stay open for twenty years or more, it cannot be stopped without the party becoming liable for whatever injury it may cause the party off whose land this ditch takes water." No other instruction on that subject was given, as will appear from the charge, which will be reported. This instruction authorized the finding that the easement was established by proof of twenty years' permissive use. This Court has never held that use alone, however long continued, will establish a private easement. On the contrary, it has always held that, to have that effect, the use must be adverse. Lawton v. Rivers, 2 McC. 445;Bailey v. Gray, 53 S.C. 514, 31 S.E. 354. The cases ofState v. Kendall, 54 S.C. 192, 32 S.E. 300, and State v.Tyler, 54 S.C. 295, 32 S.E. 422, do not hold a contrary doctrine. In the former, no such question was made or decided. In the latter, it was assigned as error that the trial Judge charged the jury that the public could acquire the right to travel a road merely by traveling it for twenty years. The exception on that point was overruled on the ground that the judge had not so charged. After analyzing the charge, the Court said: "Stated, then, briefly, the jury were instructed that a highway arises by prescription from the continuous, uninterrupted, adverse use thereof by the public, under claim of right, for twenty years." In the same case, it was said: "The general instruction that the use must not be permissive, but must be adverse and under claim of right, gave appellant the full benefit of the law applicable to establishing a private way by prescription. Whether the open and uninterrupted use by the public of a neighborhood road as a public road, for twenty years, with the knowledge and acquiescence of the landowner, and with no assertion of opposing right by him, would warrant a presumption that the use was adverse and under claim of right, or would warrant the presumption of a dedication by the landowner, and an acceptance by the public, need not *Page 259 now be considered or decided, but see State v. Sartor, 2 Strob. 66, and State v. Floyd, 3 9 S.C. 25."
The intimation, in the last quotation, that the kind of use there mentioned, running through a period of twenty years, would raise a presumption that it was adverse, or that the way had been dedicated to the public, does not infringe upon the universal rule that, to acquire a way by prescription, the use must be adverse. On the other hand, it implies the existence of that rule; for, if the use need not be adverse, there would be no need of the presumption. The presumption merely supplies, prima facie, at least, that which all our cases hold to be necessary to establish such right — to wit, proof that the use was adverse. The presumption shifts the burden upon the party denying the right to prove that the use was permissive. But, as will be readily seen, an instruction that twenty years' use of the kind described will raise a presumption that it was adverse and shift the burden upon the party denying the right to prove that it was permissive is vastly different from an instruction that it establishes the right. Because the presumption may be rebutted by proof that the use was permissive, or by proof of other circumstances which would defeat the easement, notwithstanding such use.
Moreover, we must not overlook the fact that, in each of the cases cited, the claim of an easement in the public — a public road — was involved, and that there is a difference between the quantum of proof necessary to establish a public and a private right of way, the former requiring less proof that the latter. In State v. Sartor, 2 Strob. 60, Judge O'Neall said: "In one respect, I think, there is a great difference as to the evidence from which a dedication to public use may be presumed, and prescription for a private way. In the latter no such right can arise in woodland, without some unequivocal act of adverse right, such as cutting out the road, or repairing it. The reason of that is obvious — a private way is an easement in favor of another, in derogation *Page 260 of the rights of the owner; and hence is not to arise without clear, unequivocal proof of such facts as will give the right from the owner to the claimant. In the case of a public way, every man holds his land subject to the right of the State to lay out roads over it for public purposes. This being so, if the way be found to exist long enough to presume a dedication, the right to regard it as public, if its other characteristics be found, is made out." See, also,State v. Rodman, 86 S.C. 158, 68 S.E. 343. But none of our cases hold that a private easement, such as that here claimed, can be established by use, unless it is adverse.
I think the Court erred also in the instruction as to the law applicable to the second ground upon which the plaintiffs claim the right to use the ditch — to wit, that it was what is called a quasi easement, which was created by Reynolds, when he owned both tracts, and was still in existence as a continuous and apparent quasi easement, when the unity of title was severed. There was testimony to show that the ditch was opened by Reynolds, when he owned both tracts; but it fails to show when the severance took place, and whether the several tracts were conveyed at the same time or at different times, and, if at different times, whether the dominant or the servient tract was first conveyed. The order of conveyance may be of controlling influence in determining such a right. Other circumstances being the same. If Reynolds conveyed the tract now owned by the plaintiffs first, their claim to the use of the ditch would rest upon stronger grounds than if he conveyed the other tract first. The rule and the reason for it are thus stated in 10 A. E. Enc. L. 2d 420: "According to the established English doctrine, which is supported by some of the later American authorities, if the owner of both thequasi dominant and the quasi servient tenements conveys the former, reserving the latter, all such continuous and apparent quasi easements as are reasonably necessary to the enjoyment of the property granted pass to the grantee, giving *Page 261 rise to easements by implied grant. If, on the other hand, the quasi servient tenement is granted, while the quasi dominant tenement is retained, no easement is reserved by implication, unless it is strictly necessary to the enjoyment of the property retained. These rules are founded on the principle that a grantor shall not derogate from his own grant." In the note, the case of Elliott v. Rhett, 5 Rich. L. 405, 57 Am. Dec. 750, is cited as sustaining the rule of the text.Cross land v. Rogers, 32 S.C. 130, 10 S.E. 874, is directly in point. In that case, plaintiff owned land which had been drained by a ditch for over thirty years, and sold part of it. The ditch ran partly through the tract sold and emptied into another ditch on that tract, whence it was vented into a creek. Defendant having acquired title to the quasi servient tract, obstructed the ditch which drained plaintiff's land, and plaintiff sued him for the obstruction, alleging that he had the right to use the ditch on the same grounds that the plaintiffs in this case base their claim. On appeal from judgment of nonsuit, after holding that there was no evidence of adverse use by plaintiff for the time requisite to acquire the right by prescription, the Court said, as to the second ground: "Was there any testimony introduced as to the facts necessary to imply an easement reserved in such a case? What facts are necessary? To this end, Mr. Washburne, in his work on easements, in section 111, discusses this matter fully, referring to many cases decided in the English Courts, as well as the different States, and while there is a want of uniformity in these decisions, we think the better doctrine seems to be that, in order to establish an easement by an implied reservation, where there has been a unity of possession and a subsequent sale of a portion of the land over which the easement is claimed, that said easement must have been apparent, continuous, and necessary at the time of said sale, the term "necessary" meaning that there could be no other reasonable mode of enjoying the dominant tenement without this easement. And it seems *Page 262 to be less difficult for the grantee of the portion sold to establish the easement than the grantor, for the reason that the grantor ought not to be allowed to derogate from his absolute deed by claiming rights and burdens over the land sold, in the face of his covenants of warranty, even though said burden might have been apparent and continuous at the time. There should be an element of absolute necessity in such cases. See Washburn on Easements, page 60, et seq. See, also, our own cases of Ferguson v. Witsell, 5 Rich. 284, and Elliott v. Rhett, 5 Id. 413, as to the element of necessity. In those cases the question was whether the easement claimed had passed to the grantee."
The foregoing citation shows that the burden was upon plaintiffs to prove at least two things before they could establish the right to use the ditch as an easement of necessity: First, that it was necessary to drain their land; and, second, that it was necessary to use this ditch to do it. In other words — the words of the Court in Crossland v. Rogers — "that there could be no other reasonable mode of enjoying the dominant tenement without this easement."
If we bear in mind the undisputed evidence, that Reynolds opened the ditch while he owned both tracts, that there was a low place in plaintiffs' land, which it was necessary to drain in order to make it arable, and that it had been drained through this ditch, we cannot resist the conclusion that the instruction, complained of in the fourth exception, that "where one owned a piece of land originally drained by a ditch, and sold off a portion through which the ditch drained, and it was necessary to drain that land, the use of the ditch passed with the land," was practically the direction of the verdict for the plaintiffs. But, as there was testimony that plaintiffs' land could be drained in another direction, which was the better and the natural course for the water to go, the issue whether that kind and degree of necessity existed which the cases above cited require to establish such an easement should have been submitted to the jury. *Page 263
As the testimony fails to disclose when the several parts of the original Reynolds tract were conveyed, it is difficult to understand how the doctrine of title by prescription could have been applied in the case at all, because it was impossible to tell whether there had been twenty years' use of the ditch by plaintiffs and their predecessors in title after the severance of the unity of title and possession which had existed in Reynolds. Of course, no part of the time that the ditch had existed and been in use before the severance could be added to the time that it was used afterwards to make up the twenty years. Yet it is by no means certain that this was not done. At any rate, the language of the instruction which has been quoted above was broad enough to warrant the conclusion by the jury that it might be done. The burden was upon the plaintiffs to prove the facts necessary to establish the right claimed by them, and to make the instruction, which was given at their request, applicable.
In Polson v. Ingram, 22 S.C. 545, the Court said: "One claiming an easement on the lands of another must prove his right to it clearly. The law is jealous of such claim, and the right cannot be established by intendment or presumption."
For these reasons I think the judgment should be reversed.
MR. JUSTICE FRASER concurs.