41 S.E. 525 | S.C. | 1902
Lead Opinion
April 15, 1902. The opinion of the Court was delivered by On the 16th February, 1900, this action was commenced. It is admitted that the title to an alleyway in the city of Columbia is owned by the plaintiff, which alleyway is about twelve feet wide, extending the whole depth of plaintiff's lot, to wit: 267 feet, and that said alleyway runs through from Main street to Sumter street. Defendant while admitting that the fee to said alleyway for twelve feet in width and to 267 feet in depth is in plaintiff in fee simple, contends that he and the public generally have acquired a right to use the same, not by license, but by right; said alleyway having "been so used continuously and adversely for a period of time whereof the memory of man runneth not to the contrary; and has been for many years, certainly for more than fifty years last past, recognized as a public alleyway or street of the city of Columbia, and so used to the knowledge of plaintiff, his predecessors and grantors. That this defendant is the owner of premises abutting on the said alleyway, on the southern side thereof, and he purchased these premises with said alleyway so open and used, and by reason thereof without any claim of plaintiff to close the same." The defendant also admits that on the 6th day of February, 1900, he did tear down and remove from said alleyway a fence, the plaintiff on the same day had erected across said alleyway. On these issues the cause came on to be tried before his Honor, Judge Gage, and a jury. The verdict was for the defendant.
And now the plaintiff, after judgment, appeals to this Court. In his grounds of appeal he insists that the Circuit Judge erred in refusing to admit certain testimony; also erred in refusing to direct a verdict for plaintiff, with *442 nominal costs; also erred in refusing to charge certain requests of the plaintiff; and also erred in charging certain requests of the defendant.
We will reproduce the text of these exceptions as follows:
"1. Because his Honor refused, upon objection of the defendant, to allow the witness, F.S. Earle, offered on behalf of the plaintiff, to reply to the question, `What did Mrs. Heinitsh tell you?' the same being with reference to her rights in the alley and her purpose in allowing the use thereof by the public.
"2. Because his Honor refused plaintiff's motion to instruct the jury, at the close of the case, to find a verdict for the plaintiff, with nominal damages.
"3. Because his Honor refused plaintiff's first request to charge, `That a public alley cannot be created without a dedication, express or implied, by the owner of the land over which it passes.'
"4. Because his Honor refused plaintiff's third request to charge, `That when the owner of land across which there is an alleyway, used by the public, continues to claim the ownership of it by paying taxes on it and conveying it as private property, he cannot be held by presumption to have dedicated it to the public.'
"5. Because his Honor refused plaintiff's fifth request to charge, that `The right of the public to use an alley cannot be established by adverse user alone in analogy to the statute of limitations, and the jury can presume a dedication to the public only by such user as indicates the purpose of the owner to dedicate it to the public.'
"6. Because, upon request of the defendant, his Honor charged the jury as follows, to wit: `If the public at large, the people of Columbia, have used this alley to pass from Main street to Sumter street and from Sumter street to Main street, in this city, for any twenty years continuously and uninterruptedly next before the commencement of this action, a grant to the public of such use by the owners of the soil will be presumed;' thereby erring in indicating, first, that mere *443 user by the public would be sufficient to establish the right of the public to use the same; and second, by indicating that the law would absolutely presume a grant to the public.
"7. Because his Honor charged the jury as follows, to wit: `Twenty years or more of use by the public of a way in the same place continuously gives the public the right to go that way by prescription;' thereby indicating that even if such user was with the acquiescence of the landowner and accompanied by his use of the same for his own purposes, that the absolute right of user would be established by prescription.
"8. Because his Honor charged the jury as follows, to wit: `The issue is whether all of Columbia and all of the public have for twenty years continuously passed and repassed along this way leading from Main street to Sumter street;' thereby indicating that even if the alley had been left open for the convenience of the plaintiff and those who owned the lot over which the same passes and the public had been allowed to use the same, merely because their user was not inconsistent with use thereof by the owner and those under whom he claims, without any intention on his or their part to dedicate the same, that such user would settle the issue in favor of the defendant.
"9. Because his Honor charged the jury as follows, to wit: `I charge you, if you conclude that this is a way leading from Main street back to Sumter street, and if the public has heretofore traveled that unmolested for twenty years continuously in one place leading from one highway to another highway, then I charge you the public has acquired by long user the right to use, to travel it;' thereby indicating, first, that it was not necessary for defendant to show that user of the alley by the public for twenty years had been adverse in its character; second, further indicating that it was not necessary to show that the user was of such a character as to indicate an acknowledgment on the part of the plaintiff, or those under whom he claims, of the right of the public to use the same; third, thereby indicating that even if the user *444 was by the acquiescence of the plaintiff and those under whom he claims, because not inconsistent with his or their own private use of the alley, it would still establish the right of the public to use the same."
We will now consider the first exception. When the plaintiff's witness, Dr. F.S. Earle, was on the stand, he was asked the question, "What did Mrs. Heinitsh tell you?" Just preceding this question, Dr. Earle had stated, "When I bought the property, I thought I was buying the alley; I bought the property from Mrs. Heinitsh. I made the agreement with her." Then the question was asked, "What representations were made by her to you as to the ownership of that alley?" This is the question to which the answer of the witness would have been made, if the objection of defendant had not been sustained by the Circuit Judge. Considerable latitude has been allowed along this line both in England and in America — especially where the boundary lines are concerned — as will fully appear by the cases of Sexton v. Hollis,
2. We think and so hold, that the Circuit Judge committed no error when, at the close of the whole testimony, he refused to grant the motion of plaintiff, that he (the Circuit Judge) should direct the jury to render a verdict for the plaintiff, with nominal damages. This is what occurred in that connection: "Mr. Lyles: I am going to ask your Honor to instruct the jury to find for the plaintiff, with nominal damages. We now make that motion — that your Honor instruct the jury to find for the plaintiff, with nominal damages — upon the ground that it is admitted *445 that we are the owners of the property in question, and the affirmative defense is set up that this has become a public alley. The only proof of it is the proof of user, which is perfectly consistent with the right of owners to use an alley — their dominion over it. It is shown it was kept open all the time for their convenience, and that mere use of it by the public cannot ripen into the right, no matter how long continued. Not a tittle of evidence here that there has been any recognition of that right by the owners of the property; on the contrary, there is considerable testimony that they had repeatedly asserted their right to close it up by putting a bar or something of the kind across it; that the gate was knocked down by Poat, the chief of police or anybody else, does not alter the relation." To this the Circuit Judge replied: "I cannot direct a verdict at the close of the testimony. Plaintiff's counsel moved for a direction of the verdict for the plaintiff, with nominal damages, upon the ground that the testimony of defendant failed to disclose, or did not tend to prove, that the use testified to by defendant's witnesses of the alley was adverse to the owners of the fee, and, therefore, did not establish the right in the public or in the defendant to use the alley. It would not be proper for me to comment on the testimony even at this stage, and it is not necessary now to hold that the testimony must establish the adverse use. I think, though, from the testimony, there is enough to go to the jury, even to say whether or not the use testified to by the parties was with the consent of the owner, or was it adverse to the right of the owner. Upon that ground I cannot direct the verdict." We think, as before stated, that the Circuit Judge was not in error. Indeed, we regard the statement of the grounds upon which he based his ruling as conclusive. This exception is, therefore, overruled.
3. We will next consider the refusals of the Circuit Judge to charge the requests of plaintiff. While the Circuit Judge refused to grant this request in the form in which it was presented, yet in the body of his charge he substantially responded thereto. It will be remembered that there *446 was no testimony submitted at the trial which referred to or alleged a formal dedication by the owner of this alleyway to the use of the public; so that, strictly speaking, when the plaintiff started to ask the Circuit Judge to charge upon a dedication — express as well as implied dedication — he may have mingled a good proposition with one which was irrelevant to the issues. It is well established that an appellant must stand or fall upon his request in its entirety; and if part is unsound, the Circuit Judge is justified in a refusal to charge the request as thus presented. This exception is overruled.
4. His Honor, the Circuit Judge, very properly refused to charge the fourth request of plaintiff, for the reason that such a charge involved a charge upon the facts. This exception is overruled.
5. This fifth request of plaintiff is faulty, in that if the Circuit Judge had so charged, he would have invaded the province of the jury, by charging upon the facts. This exception is overruled.
We propose to consider the matters involved in the sixth, seventh, eighth and ninth exceptions in a group. In order to do this fairly, we will produce his Honor's charge in this cause in its entirety:
"This is an action by J.J. Earle, called the plaintiff, against C.J. Poat, called the defendant. John J. Earle alleges that he owns a lot of land on Main street, betwixt Taylor and Blanding streets, of certain dimensions — thirty-nine feet, I believe — which dimensions include also an alley, or open way, about twelve feet wide, lying betwixt his place and the place of the defendant, C.J. Poat. Mr. Earle's allegation is that the land belongs to him, or, in the language of the law, that the fee of the land is in him, and he says that Poat, as the owner of the adjoining piece of property, knocked down an obstruction which he put in that alley, and which he had the right to put there, because it was his own alley. Here is the allegation of the complaint that refers to that alley. Earle says in his complaint, alleges in his complaint, *447 that the alley was left open and has been used for the convenience of the owners and tenants of the plaintiff's lot. He admits the alley is there, but is there for his own purpose.
"Now, what is the allegation of the answer? Mr. Poat, not by his pleading, but by his counsel in Court, admits that the fee of the land is in Earle, but that it is subject to an easement — that is, that the public have the right to go over it; that is called a way. He alleges that in almost this language, that there is an alley twelve feet (says Poat in his answer) betwixt his lot and Earle's, running from Main street to Sumter street, used as of right and not by license, by the landowners on both sides of the alley and by the public generally, and so sued continuously and adversely for a period of time whereof the memory of man runneth not to the contrary, and has been for more than fifty years last past, recognized as a public street, and so used to the knowledge of Earle and those under whom he claims.
"Now, what is the issue for you? The issue for you is as to whether or not the public have acquired by user for a sufficient length of time, the right to pass and repass that alley from Main street to Sumter street. That is the issue for you. And now upon that line, gentlemen, both sides request me to charge.
"The plaintiff's first request I cannot grant; the second request I can grant in this language: `That when the owner of land allows the public to use an alleyway across his land, but has made no express dedication of it to the public, no dedication can be presumed, when the owner occasionally places bars across it.'
"The third I cannot grant. The fourth I modify. It is in this language: `That a mere user of a private alley by the public, which is not inconsistent with the use of it by the owners, cannot of itself ripen into a right on the part of the public to use it' — that is correct; and I add this language: `but it is for the jury to say if the alley in question is a private or a public way.'
"The fifth request I cannot grant. *448
"The defendant makes these requests: `First. The grant of a street, alley or other thoroughfare in a city may be accepted by formal action of the city council, or by the assumption by the city of control over it, or by the public using it;' and I add: `continuously for twenty years or more.' That is correct.
"`Second. If the public at large — the people of Columbia — have used this alleyway (sometimes called Heinitsh alley) to pass from Main street to Sumter street, and from Sumter street to Main street, in this city, for any twenty years continuously and uninterruptedly' — next before the commencement of this action — `a grant to the public of such use by the owners of the soil will be presumed.' That is correct.
"`Third. Where the public have acquired the use of an alleyway in a city, no acts of occasional trespass thereafter will affect the rights of the public to its continued use.' That is correct.
"`If the jury find that this Heinitsh alley was a thoroughfare of the city of Columbia which the public had a right to use, then any obstruction to its free use put there by any person after such alley became a thoroughfare, was a nuisance which any other citizen had a legal right to remove.' Correct.
"Now, briefly, in my own language. As I said to start with, this is an action for damages by Earle against Poat, because it is alleged Poat knocked down an obstruction which Earle had the right to put upon his own land. And Poat alleges, while the land is Earle's the great public, and he is part of the public, had the right to go over it; in other words, had a way. It is not necessary for me to define what a way is, because you know. It does not involve the ownership of land, but it involves the right to go over land; in the language of the law, it is an easement. One man may own the land, but another man may have the right to go over it.
"Well, how are ways acquired? The public has the right under the terms of the Constitution to condemn ways for public purposes; so that the public may acquire the right to *449 go over a man's land by condemnation proceedings — that is, empanel a jury, fix a price upon it, lay it out, claim it, pay for it, whether he wants to or not. That is by condemnation. The public may acquire the right in another way: A man may set it aside for the public — that is called dedication; as if he had set it aside by word of mouth, or by deed signed with his name, or by act. If a man has a block of land, lays it out in lots, lays off a street through them, having the purpose to dedicate this street to the use of the public, that is called a dedication; that involves the purpose on the part of the man who has the land, who owns the title to it. That is another way. Now, there is a third way. The third way is called by prescription — that is to say, the public acquires the right to go over the land by long practice, by long use; twenty years or more of use by the public of a way, in the same place continuously, gives the public the right to go that way by prescription.
"Now, then, what sort of ways are there, gentlemen? As one of the counsel told you, there are three sort of ways: First, a public highway, called a public highway, not so much because the public use it, but because the public maintains it, keeps it in repair at public expense; a public highway, on the roll of the county, or on the roll of the city, maintained, kept up and worked by the public. Then there is the second, I shall denote as a public way (if I give you the other definition it will confuse you) — I will simply call it a public way. That way is called public, not because the public works it, because the public might not work it, it may not be on the books; it is called public because the public uses it, not because every man uses it, or many men, but because every man has the right to travel it. And thirdly, a private way. A private way is where one or two individuals or families have the right to travel it, but the public has not the right. Now, what sort of way does Poat claim this is? You heard his counsel; he claims that it was a public way, that of the second class, not a public highway, and not a private way, but a public way — that is, a way on which all the *450 public have the right to travel, if they want to travel it. Therefore, gentlemen, this is a contest not so much between Poat and Earle as between the public and Earle — Poat claiming to be one of the great public, and claiming the right to travel this road as other people in Columbia claim the right to travel it.
"Now, then, what is the issue? The issue is whether all of Columbia and all the public have for twenty years continuously passed and repassed along this way leading from Main street to Sumter street? Now, the point of controversy between counsel is — right here I am going to make it sharp and decisive, so if right or wrong, it may be determined hereafter: It is contended by counsel for Earle that the public must use this way, running from Sumter street to Richardson street, twenty years, and must do more than that, they must use it twenty years continuously, and must use it adversely to Earle — that is, in derogation of Earle's right, denying Earle's right and asserting their own right by acts, words, and must do that for twenty years. That is their contention. The contention of the other side is, it is sufficient if the public used that road in the same place twenty years continuously, and if they did, that gives them the right. I charge you that is my view of the law. I charge you that is my view of the law, not so much because my original view, but because it seems to be the law laid down by our Court, State v. Floyd, and affirmed by our Supreme Court. This language was used: `The right to a neighborhood road' — which I called a public road — `the right to a neighborhood road' — or, as I shall put it, `the right to a public road' — which is the same thing — `may be established by proving twenty years use over that same place.' The Supreme Court affirmed that. I charge it so plainly and explicitly, that, if I am right, there may be no question about it hereafter; and if I am wrong, there may be no question about it hereafter. Unfortunately, the law has not been built in a day. It has not been laid by fine architecture at the beginning and built by skilful workmen in a day; but it *451 has been laid day by day by workmen after workmen, a piece put on here and a piece put on there as the needs of society required it, as new conditions arose. For that reason all its parts sometimes seem not to be in harmony; but the law I cite to you is the law as I understand it to be declared by our Court, and for this case you must take it. Therefore, I charge you, if you conclude that this is a way leading from Main street back to Sumter street, and if the public has heretofore traveled that unmolested for twenty years continuously in one place, leading from one highway to another highway, then I charge you, the public has acquired by long user the right to use, to travel it; and if you so conclude, find a verdict for the defendant; if you conclude otherwise, find a verdict for plaintiff. So the form of your verdict will be, if you find for the plaintiff, say we find for the plaintiff so many dollars or cents. The object of this action is to contest a right. It is a friendly suit between two citizens to contest a right. If you find for the plaintiff, say we find for the plaintiff so many dollars damages or it may be one dollar damages; if you find for the defendant, say we find for the defendant; and sign your name as foreman. Take the record and find a verdict."
"The jury thereupon retired and shortly afterwards returned with the following verdict, to wit: `We find for the defendant.'"
This observation may be made in every instance that a charge of the Circuit Judge is being reviewed — that such charge must always be construed with reference to the facts of each particular case. The remarks of the respondent's attorney in this connection are well put, when he says: "This Court, referring to one of its previous decisions, said in Roberson v. McCauley,
It is the judgment of this Court, that the judgment of the Circuit Court is affirmed.
Dissenting Opinion
I am unable to concur in the opinion prepared by Mr. Justice Pope in this case, in so far as it relates to the 6th, 7th, 8th and 9th exceptions. The rule undoubtedly is, that in order to acquire a private way by prescription, the user must be adverse to the owner of the soil. Rowland v. Wolfe, 1 Bail., 56; McKee *455
v. Garrett, 1 Bail., 341; Golding v. Williams, Dudley, 94. This is also the rule in determining what is a "traveled place," under the statute regulating railroads. Hankinson
v. Railroad,
For these reasons, I think that a new trial should be ordered. *458