Johnson v. Time Warner Entertainment-Advance/Newhouse Partnership et al

Filing 120

OPINION AND ORDER denying 109 Motion for Summary Judgment. Signed by Honorable Cameron McGowan Currie on 7/5/2016.(cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Stanley Johnson, individually and on behalf of
all others similarly situated,

C/A No. 3:15-cv-01727-CMC

Plaintiff,
v.
Time
Warner
Entertainment-Advance/
Newhouse Partnership d/b/a/ Time Warner
Cable, and Time Warner Cable Southeast LLC
d/b/a Time Warner Cable,

Opinion and Order
Denying Second Motion
for Summary Judgment (ECF No.109)

Defendants.

This matter is before the court on Defendants’ Third Motion for Summary Judgment (ECF
No. 109). For the reasons set forth below, the motion is denied. 1
BACKGROUND
As explained in the order denying Defendants’ Second Motion for Summary Judgment:
Through this action, Plaintiff Stanley Johnson (“Johnson”), seeks recovery
on behalf of himself and others similarly situated for alleged unauthorized
placement of cable transmission lines and related equipment (“Cable Lines”) on or
under land he purchased on July 1, 2014. . . . Relief is sought under various legal
theories, all of which depend on the dual premises that (1) Defendants Time Warner
Entertainment Advance/Newhouse Partnership and Time Warner Cable Southeast,
LLC (collectively “Time Warner Cable”), or their predecessors in interest, placed
the Cable Lines on or under the Property without authorization prior to Johnson’s

1

This is Defendants’ third motion for summary judgment. Defendants filed their first motion for
summary judgment on August 6, 2015. ECF No. 70. That motion was denied without prejudice
to renewal after discovery on specified issues germane to Plaintiff’s individual claims. See ECF
No. 82. After discovery on the specified issues, Defendants filed their second (or renewed first)
motion for summary judgment on November 12, 2015. ECF No. 90 (“Second Motion for
Summary Judgment”). That motion was denied by order entered January 25, 2016. ECF No. 102.
The present motion was filed following additional discovery germane to Plaintiff’s individual
claims. ECF No. 109.

purchase and (2) the Cable Lines remained on the property without authorization
after Johnson’s purchase.
For purposes of this order, the court distinguishes between two types of
lines: “Trunk Lines,” which are capable of carrying signals to multiple subscribers;
and “Service Lines,” which carry the signal from the Trunk Line[s] to an individual
subscriber’s residence or other individual location. Johnson’s challenge is
primarily if not exclusively directed to the presence of Trunk Lines running over
(and possibly under) his property.
ECF No. 102 at 1-2 (footnote omitted).
Time Warner Cable’s Second Motion for Summary Judgment advanced two related
theories: (1) “placement of the lines was authorized because service was requested by and
provided to a tenant [(“Tenant”)] of the property,” with the landowner’s consent, from roughly
1994 to 2002; and (2) the cable service provider was not required to remove the lines after service
ended until a reasonable time after the landowner objected to the continued presence of the lines
(which request was made by Johnson in early 2015). Id. at 2-3 (summarizing opening arguments).
On reply in support of that motion, Time Warner Cable appeared to concede Trunk Lines serving
other properties were present on the Property before Tenant requested service in 1994. It,
nonetheless, argued the earlier presence was irrelevant because Johnson may not assert a claim for
any pre-1994 trespass and the lines were present by permission thereafter (based on Tenant’s
request for service with landowner’s consent) until Johnson objected to their presence. Id. at 4. It
also pointed to an “absence of evidence that the original placement was non-permissive.” Id. at 5.
Finally, Time Warner Cable argued Johnson’s position as to absence of authority predating 1994
was ‘self-defeating because a twenty-plus year trespass would establish an easement by
prescription which ripened prior to Johnson’s purchase” in 2014. Id. at 5.
The court found Time Warner Cable’s opening arguments ineffective, despite a number of
favorable assumptions, because they focused on authorization of Trunk and Service Lines
2

necessary to provide service to Tenant’s residence, rather than Trunk Lines necessary to provide
service to customers downstream of the Property. Id. at 6-7. 2 Noting the absence of “authority
for [Time Warner Cable’s] specific premise that Tenant’s request for service authorized placement
or presence of Trunk Lines for the purpose of serving downstream customers[,]” the court held it
could not “find that Time Warner Cable is entitled to judgment as a matter of law on this point or
the dependent argument that Time Warner Cable could not be required to remove previously
authorized lines without being given a reasonable time to relocate the lines.” Id. at 7 (emphasis in
original)).
The court declined to consider Time Warner Cable’s reply arguments on the merits for two
reasons. First, those arguments were not raised until reply and, second, they addressed issues
beyond the scope of the limited discovery that had been allowed. Id. at 8 (addressing arguments
Johnson had failed to adduce evidence that placement of lines prior to 1994 was unauthorized or,
alternatively, that Time Warner Cable was entitled to an easement by prescription and noting
“[d]iscovery to date has . . . been limited, in part by the court’s oral ruling on Time Warner Cable’s
original motion for summary judgment and in part by Time Warner Cable’s discovery responses
suggesting Time Warner Cable was relying on Tenant’s authorization rather than an absence of

2

The court assumed without deciding:
(1) Tenant’s request for service was sufficient to authorize such lines as were
necessary to provide service to Tenant’s residence, which might include Trunk
Lines to the point where Tenant’s Service Line connected; (2) Tenant’s
authorization would be effective going forward, even if the Cable Lines were
unauthorized prior to his request for service; (3) Time Warner Cable was not
required to remove any previously authorized lines upon termination of service
unless and until Tenant or property owner requested removal; and (4) once removal
was requested, Time Warner Cable was allowed a reasonable time to complete the
removal of previously authorized lines.
ECF No. 102 at 6.
3

evidence as to whether the initial placement was authorized.”). As to the issue of authorization,
the court noted possible inferences favorable to Johnson that might arise from the absence of
certain evidence or Time Warner Cable and its predecessor’s practices regarding easements. Id.
As to the issue of prescriptive easement, the court noted factual and legal issues requiring further
development. Id. at 9 (noting “discovery may be needed as to whether there have been changes in
the physical cables or nature and extent of usage of those cables over the relevant period as well
as legal argument on the impact of any such changes on the existence and scope of a prescriptive
easement.”).
DISCUSSION
I.

MOTION FOR SUMMARY JUDGMENT
Time Warner Cable now seeks summary judgment on two grounds similar to those raised

in its reply in support of its Second Motion for Summary Judgment. First, it argues Johnson has
failed to adduce evidence “that the prior landowner did not acquiesce in the presence of cable
infrastructure on the property[.]” ECF No. 109-1 at 1 (addressing what it characterizes as common
element of all claims). Second, it argues “the uncontroverted record establishes Time Warner
Cable’s entitlement to a prescriptive easement because it constructed its facilities in the early
1980’s based on a belief that it had the right to piggyback on utility easements.” Id. at 2.
A.

STANDARD

Summary judgment should be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). It is well established that summary judgment should be granted “only when it is clear that
there is no dispute concerning either the facts of the controversy or the inferences to be drawn from
those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).
4

The party moving for summary judgment has the burden of showing the absence of a
genuine issue of material fact, and the court must view the evidence before it and the inferences to
be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962).
Rule 56(c)(1) provides as follows:
(1)
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A)
citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers or other materials;
or
(B)
showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
A party “cannot create a genuine issue of material fact through mere speculation or the
building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
Therefore, “[m]ere unsupported speculation . . . is not enough to defeat a summary judgment
motion.” Ennis v. National Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
B.

FAILURE TO ADDUCE EVIDENCE OF NON ACQUIESCENCE

Time Warner Cable’s Opening Argument. In its opening brief, Time Warner Cable
notes Johnson has the burden of proving the presence of lines “was non-permissive from the
standpoint of his predecessor in title.” ECF No. 190-1 at 10 (emphasis added). It then argues
Johnson has “not adduced any evidence from which the finder of fact could conclude that the prior
landowners did not acquiesce in the presence of the cable facilities on the property[,]”, despite
having the opportunity for discovery on this issue. Id.. at 11 (emphasis added).
5

In support of this argument, Time Warner Cable cites a South Carolina law treatise for the
proposition “lack of permission is an essential element of a cause of action for trespass.” Id. at 10
(citing SC Jurisprudence CIVIL § 4-41). It also cites a Texas decision for the premise a landowner
bears the burden of proving lack of consent. Id. (citing Envtl. Processing Sys. v. FPL Farming
Ltd., 457 S.W.3d 414, 424 (Tex. 2015). In its introduction, Time Warner Cable cites two South
Carolina cases requiring proof of unauthorized entry to establish trespass. Id. at 9-10 (citing Ravan
v. Greenville Cnty., 434 S.E.2d 296, 306 (S.C. Ct. App. 1993); Willoughby v. Ne. R. Co., 11 S.E.
339, 347 (S.C. 1890)). Time Warner Cable does not, however, cite any authority for the more
specific proposition that Johnson must prove non-acquiescence in order to establish the challenged
entry was “unauthorized,” or without permission or consent. 3
Johnson’s Response. In his response, Johnson agrees that “trespass will not lie where the
landowner has granted permission.” ECF No. 114 at 7. Characterizing Time Warner Cable’s
arguments as requiring him to “disprove speculation that a prior owner of the Property granted
permission,” Johnson points to “ample facts giving rise to a triable issue concerning nonpermissive use.” Id. He notes, inter alia, that the 1989 Pole Attachment Agreement between South
Carolina Electric and Gas Company (“SCE&G”) and Time Warner Cable’s predecessor required
the cable company to “secure any necessary consent” from landowners before attaching lines to
SCE&G’s poles. Id. at 7. Johnson also notes the absence of evidence of landowner consent to

3

In a footnote to the introduction, Time Warner Cable states it has “not abandoned its additional
arguments based on the establishment of service from 1994-2002[,]” though it is not advancing
those arguments in this memorandum. Id. at 10 n.4. Though not expressly identified, these
“additional arguments” are clearly the permissive-use arguments Time Warner Cable advanced in
its Second Motion for Summary Judgment.
6

placement of Trunk Lines on the Property (to serve downstream customers), despite discovery
requests for the same. Id. at 8-14. 4 Johnson points to evidence Time Warner Cable and its
predecessors have presumed they had a right to piggyback on existing utility easements rather than
seeking landowner consent despite notice that such consent was required in the very document that
gave them the right to attach to SCE&G’s poles. Id. at 11, 14. Johnson also argues that, by
suggesting he must prove non-acquiescence, Time Warner Cable is impermissibly requiring him
to “prove a negative.” Id. at 15. Finally, he argues the evidence is sufficient to allow a jury to find
Time Warner Cable and its predecessors’ presence on the property was “non-permissive[,]” which
is all he is required to prove. Id. at 15-18.
Time Warner Cable’s Reply. On reply, Time Warner Cable concedes that discovery
conducted after denial of its Second Motion for Summary Judgment is sufficient to allow “a jury
to conclude that [Time Warner Cable’s predecessor] did not receive express permission from the
landowner in 1981.” ECF No. 117 at 3 (stating it has never argued otherwise). It maintains,
nonetheless, that this absence of express permission does not matter and that the “actual issue
raised” is the absence of evidence the “prior landowners did not acquiesce in the continuous
presence of the cable facilities on the property” despite their presence since 1981. Id.

4

Johnson suggests there is an inconsistency between a concession defense counsel made in a prior
hearing (that there were “no documents that show landowners signing off, giving permission . . .
to attach to poles on [the] property”) and Time Warner Cable’s subsequent denial of requests to
admit there is “no writing evidencing permission to use the Plaintiff’s Property” and Time Warner
Cable has “no records evidencing permission given by any owner . . . of what is now Plaintiff’s
Property.” Id. at 8. The court does not find the statements inconsistent in light of Time Warner
Cable’s reliance on the service agreement with Tenant and Tenant’s declaration regarding his
authority as writings collectively evidencing the landowner’s permission to place lines necessary
to provide service to Tenant.
7

Discussion. To the extent it relates to Johnson’s burden of proof as to the elements of his
claims (all of which depend on a theory of trespass or unauthorized entry), Time Warner Cable’s
first argument is misplaced. What Johnson must prove is that placement of the Trunk Lines was
not authorized, either at the time the lines were originally installed or at some later time predating
Johnson’s objection to their presence. As Time Warner Cable concedes, there is evidence from
which a jury could conclude there was no express authority at the time of installation or thereafter.
There is also evidence from which a jury could find either an absence or existence of
implied authority to install the Trunk Lines. For example, as the court noted in denying the Second
Motion for Summary Judgment, the establishment of service to Tenant may be some evidence of
implied permission to install whatever lines were necessary to provide that service, including a
Trunk Line to the point where Tenant’s Service Line attached, which implied permission may
carry forward until a reasonable period after an objection was made. See ECF No. 102 at 7 n.8
(noting likely jury issue “[w]hether the time required to reroute the cable was reasonable[,]”
assuming permissive use based on service to Tenant). On the other hand, it is “doubtful that
Tenant’s request for service, alone, could have authorized placement or presence of Trunk Lines
serving downstream properties.” Id. There are also jury issues regarding the inferences to be
drawn from Time Warner Cable and its predecessors’ practice of assuming the existence of an
easement despite contrary terms in Pole Attachment Agreements (“PAA”) with SCE&G. See infra
Prescriptive Easement Defense, Third Element (noting Time Warner Cable’s reliance on “assumed
easements” or “pretense” of an easement, regardless of the language in the PAA, may support jury
finding that it did not act under a claim of right). Collectively, the disputed evidence and inferences
to be drawn from the evidence (or lack of evidence) preclude summary judgment on the issue of
implied authority.
8

Finally, Time Warner Cable has pointed to no authority, and the court is aware of none,
that would require Johnson to prove “non-acquiescence” in order to prove the lines were placed
and remained without authority or consent. While acquiescence may be relevant to Time Warner
Cable’s prescriptive easement defense (which requires proof as to a twenty-year period), nonacquiesence is not something Johnson must prove to establish his claims. To hold otherwise would
be to engraft an additional element (one that looks very much like an element of a prescriptive
easement defense) onto a trespass and related claims. Time Warner Cable’s first argument for
summary judgment, therefore, fails.
C.

PRESCRIPTIVE EASEMENT DEFENSE

Time Warner Cable’s second argument is that it has established a prescriptive easement as
a matter of law. 5 To establish this defense, Time Warner Cable must prove the following elements
by clear and convincing evidence: “(1) the continued and uninterrupted use or enjoyment of a
right for a full period of twenty years; (2) the identity of the thing enjoyed; and (3) that the use [or
enjoyment] was adverse or under a claim of right.” ECF No. 117 at 4 (reply brief) (quoting Jones
v. Daley, 609 S.E.2d 597, 599-600 (S.C. Ct. App. 2005)). While there is evidence to support this
defense, that evidence is not so clear as to support summary judgment.
First Element: Continuous and uninterrupted use for a period of twenty years.
Evidence adduced following entry of the order denying Time Warner Cable’s Second Motion for
Summary Judgment indicates the Trunk Line crossing Johnson’s property was installed in or

5

Time Warner Cable advances this argument as a defense, rather than as an affirmative
counterclaim.

9

around 1981. 6 An “Amplifier” and related “Multi-Party Backfeed Lines” have been in place for
roughly the same period of time. 7 There appears to be little if any dispute that these lines and
equipment have been in place in one form or another long enough to satisfy the first element of a
prescriptive easement claim or defense. The court, therefore, assumes for present purposes that
this element is satisfied.
Second Element: Identity of the thing enjoyed. The second element is, however, in
dispute. Time Warner Cable concedes that its use has changed in at least two ways during the
prescriptive easement period. First, the use of the claimed prescriptive easement has “evolved”
from delivery of cable television signal to include both telephone and internet services. Second,
the Multi-Party Backfeed line (as well as the Tenant’s Service Line) have been replaced with a
different type cable. It is unclear precisely when these changes occurred, though there is no claim

6

This evidence consists of a request for and grant of permission to cross a railroad line
downstream of the Property. It appears to be undisputed that the original cable lines would have
been installed soon after this permission was given.
7

As the court understands the technology, the signal carried by a Trunk Line must pass through
an Amplifier before being delivered to Time Warner Cable’s customers. The lines between the
Amplifier and customers are referred to as Backfeed Lines. To distinguish those Backfeed Lines
serving multiple customers and the portion installed solely to serve Tenant, the court refers to the
former as “Multi-Party Backfeed Lines” and the latter as “Tenant’s Service Line.” Johnson’s
property is burdened by (1) an aerial Trunk Line that runs roughly North to South along the Old
Garners Ferry Road side of Johnson’s Property and is attached to two SCE&G poles located on
the Property; (2) a short underground segment of Trunk Line running from the pole near the South
end of the property to the edge of the property and continuing on to provide service to downstream
customers; (3) an Amplifier attached to an SCE&G pole near the South end of the property, (4) an
aerial Multi-Party Backfeed Line (running roughly South to North) along the same poles and
continuing beyond the property to serve several customers (including, at one time, Tenant), and
(5) Tenant’s Service Line, running from the Multi-Party Backfeed Line to the location of the
Tenant’s former residence on the Property (mostly underground).
10

they occurred sufficiently long ago to independently support a prescriptive easement defense
without sharing an “identity” with the original installation.
Time Warner Cable argues it satisfies the second element as a matter of law despite these
changes because they do not constitute the sort of change that would support a finding of change
of identity of the thing enjoyed. In support of this argument, Time Warner Cable relies on two
South Carolina cases involving public easements for highway purposes. See ECF No. 109-1 at
16-17 (discussing Lay v. State Rural Electrification Auth., 188 S.E. 368 (S.C. 1936), and Leppard
v. Central Carolina Tel. Co., 30 S.E.2d 755 (S.C. 1944)); ECF No. 117 at 4-5 (same). 8 In both
cases, the court construed the easements broadly to allow placement of electric (Lay) and telephone
(Leppard) lines in the public highway right of way, even though the particular use might not have
been contemplated at the time the easements were given. Leppard, 30 S.E.2d at 757-58 (holding
“the grant or a condemnation of a public street or highway must be presumed to have been made
not for such purposes and usages only as were known to the landowner at the time of the grant,
but for all public purposes, present and prospective, consistent with its character as a public
highway, and not detrimental to the abutting real estate”); Lay, 188 S.E. at 370 (holding “in the
light of modern invention and modern progress[,] . . . the use by the [Electrification Authority] of
the highways for its transmission lines under the act of the Legislature is not an additional

8

Leppard addressed a “public easement” conveying an “unqualified right of way for the
construction of a state highway.” Leppard, 30 S.E.2d at 756. Lay addressed “an easement to the
state for highway purposes.” Lay, 188 S.E. at 368.

11

servitude, and . . . does not constitute a taking of private property for public use without just
compensation”). 9
Johnson, in contrast, relies on Gressette v. South Carolina Electric & Gas Co., 635 S.E.2d
538 (S.C. 2006), which remanded a class action challenging alienation of easement rights for
consideration of the specific language in the underlying, written easements. See ECF No. 114 at
19-20. The easements at issue granted SCE&G “the right to construct, operate, and maintain
electric transmission lines and all telegraph and telephone lines . . . necessary or convenient in
connection therewith.” Id. at 539 (quoting easement, emphasis in Gressette). The class action
challenged SCE&G’s sale of excess capacity on fiber optic lines to third parties. The class did not
challenge either SCE&G’s right to install the fiber optic cable or its right to use that cable for its
own communications purposes. It challenged only the sale of excess capacity to third parties who
would be using the communications lines for something other than communications “in
connection” with electric transmission. The court found this distinction sufficient to require
further consideration of the impact of the limiting language.
Gressette is not only more recent, but more on point as it involved a private easement
allowing for a specific use and an alienation with minor modification. The nature of the alienated

9

Time Warner Cable also relies on decisions from other states and the Restatement (Third) of
Property: Servitudes § 4.10 (2000). ECF No. 117 at 5 (quoting Restatement for propositions
easements will continue, despite changes in function or use, where there is “no physical change in
the use of the easement” or the physical change imposes no greater burden on the landowner, and
suggesting the same rule applies to prescriptive easements). While the authority on which Time
Warner Cable relies may state the majority rule, it does not necessarily reflect the rule accepted in
South Carolina, which the court concludes favors a narrower interpretation of prescriptive
easements for reasons discussed below.

12

use (general communications) was very similar to the permitted use (communications in
connection with electrical transmission) and, presumably, imposed no greater burden on the
landowner. 10
While not directly on point, Gressette suggests the South Carolina Supreme Court would
follow a similar course when construing the second element of a claim for prescriptive easement
(identity of the thing enjoyed). To do otherwise would give greater breadth to a prescriptive
easement than a written easement. The very nature of a prescriptive easement, which is in
derogation of property rights and requires proof of each element by clear and convincing evidence,
suggests the state court would construe prescriptive easements at least as narrowly as written
easements. At the least, the issue is one involving an open issue of state law that should not be
resolved on anything less than a fully developed record.
Third Element: Use that was adverse or under a claim of right.
The third element may be established by proving “either a justifiable claim of right or
adverse and hostile use.” Jones v. Daley, 609 S.E.2d at 599-600. These two means of proof are
not mutually exclusive. See also Kelley v. Snyder, 722 S.E.2d 813 (S.C. Ct. App. 2012) (finding
use of property was both adverse and under a claim of right).
To establish a claim of right, claimant “must show a substantial belief that he had the right
to use the property based on the totality of circumstances surrounding his use. . . . A claim of right
is without recognition of the rights of the owner of the servient estate.” Paine Gayle Props., LLC,
v. CSX Transp. Inc., 735 S.E.2d 528, 536-37 (S.C. Ct. App. 2012) (internal marks and citation

10

Time Warner Cable does not address Gressette, either in its opening brief or on reply.
13

omitted). A belief need not be correct to be substantial. See Loftis v. S.C. Elec. & Gas Co., 604
S.E.2d 714, 717 (S.C. Ct. App. 2004) (noting “very mistaken belief” may support claim of right).
Because a claim of right does not recognize the rights of the owner, permissive use
(whether express, implied, or by license) cannot ripen into a prescriptive easement regardless of
the length of the use. Id. (indicating same rule applies to claim of right and adverse use).
Therefore, asking and obtaining permission from either the tenant or owner of the servient estate
indicates the use is not adverse or under a claim of right. Id.
A presumption of adverse use arises when claimant establishes the use was open, notorious,
continuous and uninterrupted. Boyd v. BellSouth Tel. Tel. Co., 633 S.E.2d 136, 141 (S.C. 2006).
If an adequate showing to raise this presumption is made, “the burden shifts to [the landowner] to
rebut the presumption that the use was adverse.” Kelley v. Snyder, 722 S.E.2d at 819. As noted
above, use which is permissive is not adverse. See Paine Gayle Props., 735 S.E.2d at 537; see
also Black’s Law Dictionary (10th ed. 2014) (defining adverse use as “[a] use without license or
permission”).
Claim of Right. As to Time Warner Cable’s claim of right, a jury could find the claimed
“belief” not to be substantial under the totality of the circumstances. The court notes, in particular,
that the cable lines in question were attached to SCE&G poles pursuant to two PAAs, both of
which required the cable company to obtain permission from the landowner before attaching to
the poles. While two defense witnesses testified to a “belief” that the company could attach to
SCE&G’s poles without further permission, neither explains why that belief was reasonable in
light of the language in the PAAs. The testimony may, moreover, suggest either willful blindness
or intentional disregard of the PAAs’ limiting language rather than actual belief in the right. For
example, one witness stated “the company took the position that we had the right to put our cable
14

on the utility company’s poles, period.” See Tribshrany dep. at 18-19 (explaining he believed the
cable company could attach to SCE&G’s poles without permission from the landowner, despite
language to the contrary in the PAA) (emphasis added). Another stated the cable company entered
land to install cable “under the pretense that we had the right to be there” and characterized the
right as an “assumed right-of-way.” Walker dep. at 22-23 (emphasis added). 11
The jury might also find Time Warner Cable’s claim of right inconsistent with its argument
that placement of cable was permissive during Tenant’s use and thereafter until Johnson objected
to the presence of the lines. 12 If the jury accepted this argument in full, it might defeat Johnson’s
claim for other reasons, but would be inconsistent with a claim of right (or adverse use). If the
jury accepted it only in part, for example finding permissive use from 1994 when Tenant obtained
service until early 2015 when Johnson first objected to the lines, there would be an insufficient
period of non-permissive use to support prescriptive easement.

11

Time Warner Cable also suggests its claimed belief was reasonable based on its understanding
of the federal Cable Communications Policy Act of 1984, 47 U.S.C. § 541 (“Cable Act”), as
supported by the Eleventh Circuit decision in Centel Cable Television Co. v. Admiral’s Cove
Assocs., 835 F.2d 1359 (11th Cir. 1988), and the South Carolina Court of Appeals decision in
Timberlake Plantation Co. v. Cty. of Lexington, 415 S.E.2d 824 aff’d as modified, 431 S.E.2d 573
(S.C. 1993). It, nonetheless, notes that the Fourth Circuit rejected the Eleventh Circuit’s
interpretation of the Cable Communications Policy Act in Media Gen. Cable v. Sequoyah Condo.
Council of Co-Owners, 991 F.2d 1169 (4th Cir. 1993) (holding right of access under Cable Act is
expressly limited to easements dedicated for public use). In light of the Fourth Circuit’s decision
in Media Gen. Cable, a jury could find any reliance on the Cable Act within this circuit reasonable,
if at all, only from 1984 to 1993. Thus, it would not support the existence of a “substantial belief”
in the right either at the time the lines were first installed or the full twenty years required for a
prescriptive easement, at least not as a matter of law.
12

While Time Warner Cable does not now advance that argument for purposes of summary
judgment, neither has it abandoned the argument. See supra n.3 (addressing ECF No. 109-1 at 10
n.4).
15

For these reasons, the court finds disputed issues of fact and inferences to be drawn from
the facts preclude a summary judgment finding for Time Warner Cable on this method of proving
the third element of a prescriptive easement claim.
Adverse Use. While stronger, Time Warner Cable’s adverse use argument is still not so
strong as to support summary judgment. Certainly, there is evidence from which a jury could find
that the alleged encroaching lines and related equipment were open and notorious from the time
they were originally placed in or around 1981 until Johnson objected to them in 2015. This is
particularly true as to the aerial cables and equipment and somewhat less so as to the limited
portion of the Trunk Line that runs underground. This is, however, an issue the court finds
inappropriate for summary judgment because a jury is the best authority for what a reasonable
person would understand from the physical appearance of the cables or any additional “notice”
that might flow from the relatively short time during which cables were being attached to poles on
and run under one portion of the Property (on which the owner did not reside). While the court
agrees there is no requirement that the lines be labeled either as television cable lines or as
belonging to a particular entity, neither can it conclude as a matter of law that a reasonable person
would have understood the lines present on the Property were not electrical lines.
CONCLUSION
For reasons explained above, Time Warner Cable’s Motion for Summary Judgment (ECF
No. 109) is denied.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
July 5, 2016
16