THE STATE OF SOUTH CAROLINA In The Supreme Court

Roosevelt Simmons, Petitioner,

v.

Berkeley Electric Cooperative , Inc. and St. John's Water Company, Inc., Respondents.

Appellate Case No. 2013-001477

ON WRIT OF CERTIORARI TO THE COURT O F APPEALS

Appeal From Charleston County Mikell R. Scarborough, Master-in-Equity

Opinion No. 27674 Heard October 20, 2015 – Filed November 2, 2016

AFFIRMED IN PART, RE VERSED IN PART, AND

REMANDED

Edward A. Bertele, of Charleston, for Petitioner.

John B. Williams and J. Jay Hulst, both of Williams & Hulst, L.L.C., of Moncks Corner; Gaines W. Smith and Jeffrey C. Moore, both of Legare, Hare & Smith, of Charleston, all for Respondents.

ACTING CHIEF JUSTICE BEATTY: In this property dispute concerning utility easements, we granted Roosevelt Simmons' pet ition for a writ ofcertiorari to review the Court of Appeals' decision in Simmons v. Berkeley Electric Cooperative , 404 S.C. 172, 744 S.E.2d 580 (C t. App. 2013). Simmons assert s the Court of Appeals erred in affirming the master-in-equity's gran t of summary judgment in favor of St. John's Water Company, Inc. ("St. John' s Water") on the basis that it had established a prescriptive easement. Simmons further asserts the Court of Appeals erred in affirming the master's grant of summa ry judgment in favor of Berkeley Electric Cooperative, Inc. ("Berkeley Electri c") on the grounds that it had been granted an express easement and that it had es tablished a prescriptive easement to maintain the power lines in their curr ent configuration. We affirm in part, reverse in part, and remand.

I. Factual/Procedural History

In 2003, Simmons acquired title t o two parcels of land, TMS # 283-00-00

- 498 ("Tract 498") and TMS # 282-00-00-135 ("Tract 135"). Both parcels are undeveloped, wooded, and located along Kitford Road on Johns Is land. The parcels are separated by an a bandoned railroad right-of-way and were previously part of a larger tract owned by two of Simmons' predecessors-in -title, Edward Heyward and E.C. Brown. In 1956, Heyward granted an easement t o Berkeley

Electric to construct and maintain transmission lines over what is now Tract 498 and Tract 135. In 1972, Brown granted an easement to Berkeley Electric to

construct and maintain distribution lines over Tract 498.

In 1977, Charleston County issued an encroachment permit author izing St. John's Water to install a water main along Kitford Road pursuan t to an accompanying map that illustrated the water main's approved loc ation. St. John's

Water finished construction on the water main in 1978. In 2005 , Simmons

discovered a water meter under bushes on Tract 135. Simmons su bsequently contacted St. John's Water, which informed Simmons that it would not move the

water main because it believed it had an easement giving it the right to use the property. St. John's Water based its belief on the encroachmen t permit and its understanding that the water main had been in its current locat ion for more than twenty years. Pursuant to a request by Simmons, St. John's Wat er "blue-flagged" the property. The blue flags showed the water main crossing bo th Tract 135 and

Tract 498. 1

1 The blue flags also showed the water main was not located alo ng Kitford Road, but north of Kitford Road across Simmons' property.In 2008, Simmons commenced this action against Berkeley Electri c and St. John's Water alleging trespass a nd unjust enrichment. Specifically, Simmons alleged Berkeley Electric and St. John's Water trespassed on hi s property by constructing, placing, and maintaining unauthorized power and w ater lines. In doing so, Simmons claimed Berkeley Electric and St. John's Wate r had been "furnished with a non-gratuitous and valuable benefit without p aying for its reasonable value." Simmons also sought a declaration that neit her utility company had property interests or rights to his property.

Both Berkeley Electric and St. John's Water moved for summary j udgment. After presiding over the summary judgment hearings, the master granted both motions for summary judgment. With respect to Berkeley Electri c, the master determined any transmission and distribution lines over Simmons ' property were permitted under the 1956 and 1972 easements. To the extent the lines were not within the scope of the expre ss easements, the master found Ber keley Electric established a prescriptive easement to the lines in their curre nt configuration. As to St. John's Water, the master determined the encroachment per mit served as an express easement granting St. John's Water the right to use Sim mons' property to

construct the water main. To th e extent that the water main wa s not covered under the express easement, the master held St. John's Water establis hed a prescriptive easement to maintain the water main in its current configuratio n. Simmons appealed.

The Court of Appeals affirmed the master's grant of summary jud gment in favor of Berkeley Electric, finding Berkeley Electric did not e xceed the scope of the express easements. Simmons , 404 S.C. at 179-80, 744 S.E.2d at 584-85. In addition, the Court of Appeals affirmed the master's finding th at Berkeley Electric established a prescriptive easem ent for the power lines in thei r current configuration. Id . at 181-82, 744 S.E.2d at 585-86 . As to St. John's Water, the Court of Appeals affirmed the master's grant of summary judgmen t in favor of St. John's Water on the basis that it established a prescriptive ea sement, but reversed the master's finding that it had an express easement after dete rmining Charleston County lacked the authority to grant a right to use property ow ned by another. Id. at 183-85, 744 S.E.2d at 586-87. The Court of Appeals remanded the action to the

master for a determination of w hether there are additional wate r lines under Simmons' property. Id. at 185, 744 S.E.2d at 587. We granted Simmons' petition for a writ of certiorari following the Court of Appeals' denial of his petition for rehearing.II. Standard of Review

When reviewing the grant of a summary judgment motion, this Co urt applies the same standard that governs the trial court under Rule 56(c) , SCRCP, which provides that summary judgment is proper when there is no genui ne issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fleming v. Rose , 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002); Rule 56(c), SCRCP. "When determining if any triable issues of fact exist, the evidence and all

reasonable inferences must be vie wed in the light most favorabl e to the nonmoving party." Fleming , 350 S.C. at 493-94, 567 S.E.2d at 860.

III. Discussion

A. St. John's Water

Simmons asserts the Court of Appeals erred in affirming the mas ter's grant of summary judgment in favor of St. John's Water. We agree.

"An easement is a right given to a person to use the land of an other for a specific purpose." Bundy v. Shirley , 412 S.C. 292, 304, 772 S.E.2d 163, 169 (2015). "A prescriptive easement is not implied by law but is established by the

conduct of the dominant tenement owner." Boyd v. BellSouth Tel. Tel. Co. , 369

S.C. 410, 419, 633 S.E.2d 136, 141 (2006). To establish a pres criptive easement, the claimant must prove by clear and convincing evidence: "(1) the continued and uninterrupted use or enjoyment of the right for a period of 20 years; (2) the identity of the thing enjoyed; and (3) the use [was] adverse under claim of right." Darlington Cnty. v. Perkins , 269 S.C. 572, 576, 239 S.E.2d 69, 71 (1977). "[W]hen it appears that claimant has enjoyed an easement openly, notoriously, continuously, and uninterruptedly, in derogation of another's r ights, for the full period of 20 years, the use will be presumed to have been adver se." Williamson v.

Abbott , 107 S.C. 397, 400, 93 S.E. 15, 16 (1917). "[A] party claiming a prescriptive easement has the burden of proving all elements by clear and convincing evidence." Bundy , 412 S.C. at 306, 772 S.E.2d at 170.

In Horry County v. Laychur , this Court articulated the third element of a prescriptive easement as requiring the claimant's use to be "ad verse or under a claim of right." 315 S.C. 364, 367, 434 S.E.2d 259, 261 (1993) . In relying on this language, the Court of Appeals has recognized two methods of pr oving the third element: one established through "adverse use" and one through a "claim ofright." 2 According to the Court of Appeals, "[t]o establish an easemen t by prescription, one need only establish either a justifiable claim of right or adverse

and hostile use." Jones v. Daley , 363 S.C. 310, 316, 609 S.E. 2d 597, 600 (Ct. App. 2005) (emphasis added). Therefo re, if a claimant cannot prove the elements of adverse use, then, under the Court of Appeals' approach, the cl aimant could establish a prescriptive easement under a claim of right. "[I] n order for a party to earn a prescriptive easement under claim of right he must demon strate a substantial belief that he had the right to use the [property] based upon the totality of circumstances surrounding his use." Hartley v. John Wesley United Methodist Church of Johns Island , 355 S.C. 145, 151, 584 S.E. 2d 386, 389 (Ct. App. 2003).

Here, the Court of Appeals determined "St. John's Water establi shed the water main was installed under a claim of right." Simmons , 404 S.C. at 184, 744 S.E.2d at 587. To support its d etermination, the Court of Appe als relied on an affidavit of Hugh S. Miley, an e ngineer involved in the design, permitting, and

construction of the water main. Id. In his affidavit, Miley attested that: Charleston County issued an encroachment permit for the water m ain; construction on the water main began in 1977 and was completed in 1978; and that, to the best of his knowledge, the water main has been used continuously and uninterruptedly for more than twenty years. The Court of Appeals found "Miley's affidavit demonstrates his belief that the encroachment permits obtained from Charleston County covered the installation of the water main as illustrate d on the map." Id. The Court of Appeals continued, stating "[t]he fact the claim m ay have been based on a mistake does not negate the claim of right required to establish a prescriptive

easement." Id.

As a threshold matter, we hold the Court of Appeals erred in re cognizing two methods of proving the third element of a prescriptive ease ment. We acknowledge that this Court's d ecisions have helped give rise t o this error and now take this opportunity to clarify the third element of a prescri ptive easement.

While this Court has recently ar ticulated the third element of a prescriptive easement as requiring the claimant's use be "adverse or under a claim of right," this

2 See

, e.g. , Loftis v. S.C. Elec. & Gas Co. , 361 S.C. 434, 440-41, 604 S.E.2d 714, 717 (Ct. App. 2004) (finding respon dent established a prescript ive easement under claim of right because it believed it had the right to use the property for the power lines); Revis v. Barrett , 321 S.C. 206, 210, 467 S.E. 2d 460, 462 (Ct. App. 1996) (determining plaintiff established a prescriptive easement to t he use of an old road under claim of right based on he r belief that she had the right to use the road).3 Court has not always articulated the third element this way. I n 1823, the Constitutional Court of Appeals of South Carolina determined th ree things are necessary to establish a right by prescription: (1) use and oc cupation or enjoyment; (2) the identity of the thing enjoyed; and (3) that it is adverse to the right of some other person. Lawton v. Rivers , 13 S.C.L. 445, 451 (2 McCord) (1823). In 1917, this Court relied on Lawton and determined: "To establish a right by prescription, it is necessary to prove three things: (1) Th e continued and uninterrupted use or enjoyment of the right for the full period of 20 years; (2) the identity of the thing enjoyed; (3) that the use or enjoyment wa s adverse, or under claim of right. " Williamson , 107 S.C. at 400, 93 S.E. a t 15-16 (emphasis added). By placing a "comma" after the term "adverse," this Court inten ded to modify the term "adverse," not create another method to establish a claim. 3 Accordingly, the third element of a prescriptive easement should be interpreted as requiring the claimant's use be adverse or, in other words, under a claim of right contrary to the rights of the true property owne r. A brief review of additiona l authority on this

issue is instructive.

Williamson is not the only case in which this comma appears after the term "adverse." For example, in Brasington v. Williams , 143 S.C. 223, 261, 141 S.E. 375, 387 (1927) (Watts, C.J., dissenting), Poole v. Edwards , 197 S.C. 280, 283, 15 S.E.2d 349, 350 (1941), and Sanitary & Aseptic Pa ckage Co. v. Shealy , 205 S.C. 198, 203, 31 S.E.2d 253, 255 (1944), this Court cited the Williamson test, with the comma, verbatim. Approximately eight months before Sanitary , however, this

Court cited the Williamson test, but, for the first time, without the comma behind

the term "adverse." See Steele v. Williams , 204 S.C. 124, 133, 28 S.E.2d 644, 648 (1944) ("Three things are necessa ry to establish a right by prescription: . . . (3) that the use or enjoyment was adverse or under claim of right."). T he Court offered no explanation for dropping the co mma. While the comma reappeared after the term

"adverse" in Sanitary eight months after Steele , it is around this time when this Court moved away from articulating the third element with a com ma following the

term "adverse." See

, e.g. , Babb v. Harrison , 220 S.C. 20, 24-25, 66 S.E.2d 457, 458 (1951) ("It has long been recognized that the requirements necessary to establishing a right by prescription are: . . . (3) that the u se or enjoyment was adverse or under claim of right." (citing Lawton

, Williamson

, Poole

, Steele , and Sanitary & Aseptic Package Co. )). Because this Court offered no explanation for dropping the comma, and because, in later cases, this Court rel ies on decisions in which the comma appears, we believe the failure to cite the third element with the

comma behind "adverse" was unintentional.First, the terms "adverse use" a nd "claim of right" are, in eff ect, quite

similar. For example, Black's Law Dictionary defines "adverse use" as "a use without license or permission." Black's Law Dictionary 1681 (9th ed. 2009). "Claim of right" is defined as: (1) The possession of a piece of property with the intention of claiming it in hostility to the true owner; or (2) A party's manifest intention to take over land, regardless of title or right. Black's Law Dictionary 283 (9th ed. 2009). American Jurisprudence also recognizes that "[u]nder the law of prescriptive easements, the esse nce of a 'hostile' use, which h as been referred to interchangeably in the case law as 'adverse,' 'hostile,' 'nonpe rmissive,' or 'under a claim of right,' is a lack of permission from the true owner." 68 Am. Jur. Proof of

Facts 3d 239 § 15, at 287 (2002). American Jurisprudence further states: " Many courts have phrased the issue of adverse use in terms of a clai m of right. Although some have phrased the elements of prescription to include both adverse or hostile use and a claim of right, in practice, proof of adverse use and of a claim of right merge." 2 Am. Jur. Proof of Facts 3d 125 § 5, at 144 (1988).

Secondly, it "is well-established that evidence of permissive u se defeats the establishment of a prescriptive easement because use that is pe rmissive cannot also

be adverse." Bundy , 412 S.C. at 310, 772 S.E.2d at 173; see 2 Am. Jur. Proof of

Facts 3d 197 § 6, at 218 (1988) ("Any use of property which is not h ostile or

adverse to the interests or title of the property owner cannot ripen into a prescriptive right."). Therefore, to the extent that there is a difference between the two terms, there still could not b e a legitimate claim of right without adverse use.

Accordingly, we hold adverse use and claim of right cannot exis t as separate methods of proving the third element of a prescriptive easement as the two terms are, in effect, one and the same. Thus, we overrule those deci sions that express a contrary conclusion of law. We also take the opportunity to emphasize that a claimant's belief regarding the permissiveness of his use of pr operty is irrelevant when determining the existence of a prescriptive easement. Ins tead, courts in this state should only determine whet her the claimant's use was inde ed adverse.

In sum, we conclude that when analyzing the third element of a prescriptive easement, courts in this state should apply the test for advers e use. See

Williamson , 107 S.C. at 400, 93 S.E. at 16 ( "[W]hen it appears that claimant has enjoyed an easement openly, not oriously, continuously, and unin terruptedly, in derogation of another's rights, for the full period of 20 years , the use will be presumed to have been adverse."). However, because the "continuous" and "uninterrupted" elements for adverse use are already required t o establish a prescriptive easement, the subtest for "adverse use" only furth er requires theclaimant's use be "open" and " notorious." Thus, we believe the test for a prescriptive easement can be simplified as follows:

In order to establish a prescrip tive easement, the claimant mus t identify the thing enjoyed, and show his use has been open, not orious, continuous, uninterrupted, and contrary to the true property ow ner's rights for a period of twenty years.

Applying this test to the case at hand, as will be discussed, w e find there is a genuine issue of material fact as to whether St. John's Water c an prove the "open"

and "notorious" elements of a prescriptive easement; therefore, we conclude the Court of Appeals erred in affirming the master's grant of summa ry judgment in

favor of St. John's Water.

1. Open

"'Open' generally means that the use is not made in secret or s tealthily. It may also mean that it is visible or apparent." Restatement (Th ird) of Property (Servitudes) § 2.17(h) (2000). Here, the wa ter main is located underground. Both

Tract 498 and Tract 135 are heav ily wooded and undeveloped. Ac cording to Simmons, the water meter was hi dden under bushes when he first discovered it.

The water main also had not been "blue-flagged" at that time. Considering these conditions, we find there is a g enuine issue of material fact a s to whether St. John's Water's use was open. While this finding is sufficient to warr ant a reversal of the Court of Appeals' decision to uphold the master's grant of summary judgment in favor of St. John's Water, we proceed to address the "notorious " element of a prescriptive easement for the b enefit of the parties on remand.

2. Notorious

"'Notorious' generally means that the use is actually known to the owner, or is widely known in the neighborhood." Restatement (Third) of P roperty (Servitudes) § 2.17(h) (2000). Simmons claims he was unaware of the water ma in because he lived on another parcel located further up Kitford Road, which used well water. Nevertheless, the master determined that because a majority of the area's residents are getting their water out of a spigot, the f act that there is a water main being used to supply the water is widely known, or "notori ous." We disagree

with this determination because Simmons' water also came from a spigot, but was supplied by a water well. Further, even if it is widely known that a majority of the neighborhood's water comes from a water main that does not nece ssarily mean the4 location of the water main is widely known. Or, in other words , it does not necessarily mean it is widely known that St. John's Water is us ing Simmons ' property for the use of the water main.

Consequently, we hold there is a genuine issue of material fact as to whether

St. John's Water has establishe d each element of a prescriptive easement by clear and convincing evidence. 4 Thus, we reverse the portion of the Court of Appeals' decision affirming the master's grant of summary judgment in fa vor of St. John's Water and remand this matter for additional proceedings consist ent with the test for a prescriptive easement as articulated in this opinion.

Our holding is consistent with oth er jurisdictions that have co nsidered this issue. As articulated in American Law Reports:

Where the pipes or other conduits as to which easements have be en claimed were buried underground and their presence was not physically apparent throughout the prescriptive period, the cou rts have generally concluded that there was insufficient notoriety of th e user to permit prescription to run against the servient estate. This r esult has

often been reached where there was an absence of substantial evidence that the servient parties had any notice or informatio n of the existence of the facility and its user.

J. H. Crabb, Annotation, Easement by prescription in artificial drains, pipes, or

sewers , 55 A.L.R.2d 1144, 1167 (1957 & Supp. 2015); see City of Montgomery v.

Couturier , 373 So. 2d 625, 628 (Ala. 1979) (affirming the trial court's finding that the City of Montgomery did not establish a prescriptive easemen t to an underground pipe because the pip e was hidden under a large hedg erow and because water flowed through the pipe only during heavy rains); Holman v.

Richardson , 76 So. 136, 138 (Miss. 1917) ( holding a prescriptive easement was not established over underground drain tiles since they were unknow n to the property owner until three years prior to the start of the litigation and their existence was not open and notorious); Maricle v. Hines, 247 S.W.2d 611, 613 (Tex. Civ. App. 1952) (determining claimant did not e stablish a prescriptive easement to the use of an underground sewer line because he failed to prove his use was " open, notorious and adverse").B. Berkeley Electric

1. Express Easements

Simmons next contends the Court of Appeals erred in determining Berkeley Electric did not exceed the scope of the express easements. To support his contention, Simmons relies on la nguage from this Court's opinio n in Hill v. Carolina Power & Light Co. , 204 S.C. 83, 28 S.E.2d 545 (1943). In Hill , we stated, "a grant or reservation of an easement in general terms is limited to a use which is reasonably necessary a nd convenient and as little burd ensome to the servient estate as possible for the use contemplated." Hill , 204 S.C. at 96, 28 S.E.2d at 549. While Simmons recognizes that the 1972 easement permits Berkeley Electric to maintain distribution lines over Tract 498 , Simmons asserts Berkeley Electric exceeded the scope of the easement by unreaso nably extending distribution lines over a portion of Tract 498. Specifically, Simmons argues Berkeley Electric could have placed its distribution lines in a way that would have

been less burdensome to the use a nd enjoyment of his property. We decline to reach the merits of this argumen t. Because Simmons failed to r aise this issue in his petition for rehearing before the Court of Appeals, we find it unpreserved for our

review. See Sloan v. S.C. Dep't of Transp. , 365 S.C. 299, 307-08, 618 S.E.2d 876, 880 (2005) (providing that in order for an issue to be preserve d for the Supreme Court's review, the issue must have been raised in a petition f or rehearing before the Court of Appeals).

2. Prescriptive Easement

Finally, Simmons asserts the Court of Appeals erred in affirmin g the master's grant of summary judgment in favor of Berkeley Electri c because Berkeley Electric failed to prove each element of a prescriptiv e easement by clear and convincing evidence. In add ition, Simmons argues he presen ted more than a scintilla of evidence to survive Berkeley Electric's summary ju dgment motion. Simmons believes that, in finding otherwise, the Court of Appea ls improperly weighed the evidence instead of d eciding whether there was a ma terial dispute of fact. We disagree.

"[T]he determination of the exi stence of an easement is a question of fact in

a law action." Jowers v. Hornsby , 292 S.C. 549, 551, 357 S.E.2d 710, 711 (1987).

This Court reviews the trier of fact's determination of whether an easement exists

as an action at law. Id. Therefore, our scope of review is limited to the correction of errors of law, and we will not disturb the master's factual findings that havesome evidentiary support. Townes Assocs., Ltd. v. City of Greenville , 266 S.C. 81, 87, 221 S.E.2d 773, 776 (1976).

Simmons contends, and Berkeley El ectric agrees, that Berkeley E lectric must show that any distribution lines crossing Tract 135 are co vered under a prescriptive easement since neither the 1956 easement nor the 1 972 easement grants Berkeley Electric the right to run distribution lines ov er Tract 135. To support Berkeley Electric's position that any distribution line s crossing Tract 135 were acquired under a prescriptive easement, Berkeley Electric submitted affidavits from Thomas Seeney a nd Richard Frank, one current an d one former supervisor over Berkeley Electri c's operations in the Johns Isl and District. Both Seeney and Frank worked for Berke ley Electric since the late 19 70's. Both stated: they were familiar with the age, configuration, and characteris tics of the distribution line located at 3507 Kitford Road; the line is cle arly visible from Kitford Road; to the best of their recollections, the line had never been moved; the power poles for the line have birthmarks of 1984 and 1986; and that they believed the line has been in its current configuration since at least 1 980. Based on this testimony, both the master and Court of Appeals determined Berk eley Electric established a prescriptive easement to the distribution line in its current configuration.

We decline to overrule the portion of the Court of Appeals' dec ision affirming the master's grant of summary judgment on this issue. Both Seeney and Frank were able to identify the power line, both attested the line had been in its current location for at least twenty years without interruption , and that the line was visible from Kitford Road. Thus, we conclude Berkeley Electric has presented evidence to prove each element of a prescriptive easement.

Simmons contends he presented enough evidence to contradict the two affidavits and survive Berkeley Electric's motion for summary j udgment. To support his contention, Simmons relies on two plats, two system maps, and an affidavit. The plats Simmons relies on are of neighboring prop erties. A portion of Simmons' property, however, is illustrated on the plats. That portion does not show all of the power lines Simmons contends run across his pro perty. According to Simmons, this discrepancy is enough to create a material dis pute of fact. Viewing the evidence in a light most favorable to Simmons, we d isagree. As discussed, the plats were not cr eated to show Simmons' property , nor do they purport to illustrate all of the power lines encumbering the ar ea. Thus, we find these plats do not create a di spute of material fact.Simmons next relies on two system maps Berkeley Electric produc ed during discovery. According to Simmons, these maps show the distribut ion line in two different locations which creates a dispute of material fact as to whether the distribution line has been in the same location for over twenty years. We disagree. The system maps are not drawn to scale, nor do they identify an y property lines. Without additional testimony as to what these maps depict, we f ind these maps do not create a dispute of material fact.

Finally, Simmons relies on his affidavit, which he contends con tradicts Frank's and Seeney's affidavits by stating he had personal know ledge the

distribution line was not in the same location in 1980. While Simmons did attest that he had personal knowledge the distribution line in question has not been in its current location for over twenty years, in support of that statement he references and relies on one of the plats discussed a bove. He does not st ate how he personally was aware of the power line's location over the years. Therefore, we conclude Simmons has not presented evidence which gives rise to a disput e of material fact.

Consequently, we hold the Court of Appeals properly affirmed th e master's grant of summary judgment in favor of Berkeley Electric.

IV. Conclusion

In conclusion, we affirm the portion of the Court of Appeals' d ecision that upheld the master's grant of summary judgment in favor of Berke ley Electric. We reverse the portion of the Court of Appeals' decision that uphe ld the master's grant of summary judgment in favor of St. John's Water and remand for additional proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSE D IN PART, AND REMANDED.

KITTREDGE and HEARN, JJ., concur. Acting Justices Jean H. Toal and James E. Moore, concur.