Brasington v. Williams

Mr. Ci-iiee Justice Watts

(dissenting) : This was an action commenced January 20, 1923, by issuance of summons and complaint, together with an order to show cause and temporary restraining order. The' action was brought for the purpose of enjoining and restraining the defendants from interfering with, or obstructing, a right of way claimed

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by plaintiff as leading through the lands of defendant, Ellen M. Williams, known as Mulberry, to a farm owned by the plaintiff, known as Belmont. A temporary injunction was issued at the time of the commencement of the action, and was subsequently continued until the hearing on the merits.

The case was tried before his Honor, M. E. Bonham, and a jury on the 19th, 20th, and 21st days of March, 1924, and resulted in a verdict for the plaintiff for $1 damages, upon which judgment was entered for said damages, and for a permanent injunction.

The exceptions, eight in number, raise these questions as stated by the appellants’ attorneys in their argument:

This case presents two principal questions:

E Way of Necessity. (1) Are there any facts in the case from which such a way can be found? (2) Can such a way exist under the Constitution and laws? (3) The effect of the order of Judge Townsend, sustaining the demurrer as to the third cause of action, relating to right of way of necessity.

II. Way by Prescription. (1) Is there any evidence which could reasonably be submitted to the jury that plaintiff had shown a right of way

as appurtenant to his land

by prescription? (2) Rules of Eaw. There were motions by defendant for a directed verdict on all the issues, and these motions were overruled.

Under the Constitution of 1895 the respondent could not condemn the property and acquire an outlet that way. Constitution of 1895, Art. 1, § 17:

“Private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor.”

When Chestnut sold the property in 1869, there was a road established leading out of “Belmont” and along the dividing line between “Mulberry” arid lands south of one road going straight on out to the Camden road at a rock

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corner known as the “Gettys road,” the other forking off from the Gettys road, and going out to the Camden road through what is known as the Powell settlement, reaching the Camden road at a point further south than the original Gettys road, and this latter being known as the- “Powell road.” These roads were accepted and used as an outlet by the purchaser in 1869, and the appellants concede that the respondent has the road as an outlet, and not the one he now claims.

Chief Justice McIver, in

Bailey v. Gray,

53 S. C., 513; 31 S. E., 357 , lays down the rule thus:

“But the plaintiffs contend that the allegations contained in the X, XII, and XIII'paragraphs of their complaint are sufficient to constitute a cause of action. These allegations are long and detailed, and need not be set forth

in hcec verba,

as they can be seen by reference to the copy of the complaint, which will be incorporated in the report of this case. It is sufficient to say here, that, as we understand it, these allegations are intended to show that the plaintiffs are entitled to the easement which they claim: 1st. From necessity. 2nd. By prescription. Inasmuch as it appears in the complaint that plaintiffs’ premises are open, on two sides, to the public streets of Laurens, we do- not see how it is possible to base the claim of easement upon necessity. The fact that it would be very convenient for plaintiffs to have access to their lot from the south side as well as from the public streets on the north and east of their lot, does not constitute that

‘imperious necessity

as it is called in some of the books, which is necessary to- constitute a right of way by necessity. As is said by Nott, J., in

Lawton v. Rivers,

2 McCord, at page 448 [ 13 Am. Dec., 741 ], ‘there must be an actual necessity, and not a mere inconvenience, to entitle a person to such a right.’ It is true, that the distinguished Judge goes on to say that there need not be an absolute and irresistible necessity; an inconvenience may be

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so great as to amount to that kind of necessity which the law requires, and it is difficult and perhaps impossible to lay down with exact precision the degree of inconvenience which will be required to constitute a legal necessity.’ But he proceeds to show that, as the plaintiff in that case had access to the public road by a navigable water course flowing in front of his door, there was no legal necessity which entitled him to claim a right of way, by land, through his neighbor’s premises. So, here we say that as the plaintiffs had access to- their lot from the public streets on two sides, there was no legal necessity that he should have access from the south side.”

See, also,

Seabrook v. King,

1 Nott & McCord, 140;

Screven v. Gregorie, 8

Rich. Law, 158; 64 Am. Dec., 747 .

The respondent has not made out a case of necessity in this case, his land is on a navigable river, and there is a way of ingress and egress between Mulberry and the adjoining land known as the Deas tract. It may be more convenient to have a right of way across the lands of appellants, but certainly there is no necessity as the law recognizes.

Lawton v. Rivers,

2 McCord, 447 ; 13 Am. Dec., 741 .

Turnbull v. Rivers,

3 McCord, 139 ; 15 Am. Dec., 622 .

Jeter v. Mann,

2 Hill, 641 .

Bailey v. Gray, supra.

The law in regard to the right of way by prescription is :

(1) Continuous, Adverse, Identical. — Prescription presupposes a grant which has been lost, and is based upon continuous user as of right (adverse) of the identical way, for a period of 20 years, which user and length of time raises the presumption of a grant.

Williamson v. Abbott,

107 S. C., 400, 401; 93 S. E., 15 .

Lawton v. Rivers, 2

McCord, 449, 450, 451, 452; 13 Am. Dec., 741 .

Turnbull v. Rivers,

3 McCord, 138 , 139; 15 Am. Dec., 622 .

Bailey v. Gray,

53 S. C., 514, 515, 516; 31 S. E., 354 .

Craven v. Rose,

3 S. C., 75, 77.

Kirby v. Southern Railway,

63 S. C., 503 ; 41 S. E., 765 .

Brady v. Ivester,

118 S. C., 205; 110 S. E.,

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135.

Ouzts v. McKnight,

114 S. C., 306; 103 S. E., 561 .

Metz v. Metz,

48 S. C., 486; 26 S. E., 793 .

Mr. Justice Hydrick, in the

Williamson case,

above, thus lays down the doctrine:

“To establish a right by prescription, it is necessary to prove three things: (1) The 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 was adverse, or under claim of right.

Lawton v. Rivers,

2 McCord, 445 ; 13 Am. Dec., 741 .

Bailey v. Gray,

53 S. C., 503; 31 S. E., 354 . While it is true that, when it appears that claimant has enjoyed an easement openly,- notoriously, continuously, and uninterruptedly, in derogation of another’s rights, for the full period of 20 years, the use will be presumed to have been adverse, so as to cast upon the owner of the servient estate the burden of rebutting the presumption

(Chalk v. McAlily,

11 Rich. Law, 153), that rule does not apply when claimant’s own testimony shows that the use was permissive in its inception.

“ ‘It is the well-settled rule that use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since user as of right, as distinguished from permissive user, is lacking, if permissive in its inception, such permissive character-will continue of the same nature, and no adverse user can arise, until there is a distinct and positive assertion of a right hostile to the owner, and brought home to- him.’ 9 R. C. L., 778.

“As heretofore stated, the testimony offered by the plaintiff shows that the use was permissive in its origin, and there is no evidence of any distinct and positive assertion of a right hostile to the owner, until it was made by plaintiff in 1908.

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“The Court instructed the jury that the permission relied upon to defeat the easement claimed must have been given by the owner of the servient estate, or by some one duly authorized by him to give such permission. This was error. The asking and obtaining of permission, whether from the tenant or owner of the servient estate, stamps the character of the use as not having been adverse, or under claim of right, and, therefore, as lacking that essential element which was necessary for it to ripen into a right prescription. The question is not whether Mrs. Marco was bound by the permission given by her tenant, but it is whether the use of the ditch on her land was claimed and enjoyed as a right, or as a favor.”

There is overwhelming testimon}*- that the outlet road was used permissively in the beginning:

“It is not necessary to show that the user was, during the period of prescription, the subject of controversy between the parties; on the contrary, it is said in

Lawton v. Rivers [2

McCord, 445; 13 Am. Dec., 741 ] on the authority of Bord Coke, that it must be shown to be peaceable. It is enough, if the user of the way cannot be reconciled with the right of the owner of the land otherwise than by supposing a license or grant, and in that case, if sufficient time has elapséd, the law presumes a grant. It was requisite, therefore, to a verdict for the plaintiff, that it should appear that the right of way claimed by him was adverse to the right of the defendant in the sense above stated.”

Craven v. Rose,

3 S. C., 75.

And again at page 77:

“The fact of interference, on the part of the plaintiff, with the lane, might be of importance, had that interference changed the identity of the way so that plaintiff could not make claim to the same way for the whole period of twenty years

(Lawton v. Rivers, 2

McCord, 445 [ 13 Am. Dec., 741 ]), but the interference complained of is of an entirely different character.”

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(2) Permissive Possession Cannot Ripen into- a Right—

Williamson v. Abbott, supra; Golding v. Williams,

Dud., 94.

Sims v. Davis & Tygart,

Cheves, 1; 34 Am. Dec., 581 .

Civil v. Toomey,

103 S. C., 460; 88 S. E., 261 .

Frady v. Ivester,

118 S. C., 205; 110 S. E., 135 .

State v. Murphy,

124 S. C., 279; 117 S. E., 529 (2); 9 R. C. L., p. 778, § 37. “But a mere courtesy can never grow into a right.”

Witter v. Harvey

(1821) 1 McCord, 72 ; 10 Am. Dec., 650 .

Hutto v. Tindall

(1853), 6 Rich. Law, 403.

Right of way by prescription cannot be claimed, because-undisputed testimony shows user of road began by permission, and there is no' testimony tending to show any change in the character of the user, or that the defendant had notice of any change.

(3) Adverse Possession or User Must be 20 Years. — ■

State v. Gregg,

2 Hill, 389 .

Jeter v. Mann, 2

Hill, 642; 643.

Hutto v. Tindall,

6 Rich. Law, 400, and cases above. “It is somewhat difficult to perceive how the plaintiff, as the grantee of Hutchinson’s (Gettys’ and then Witte’s here) title, could assert a right to possession which was not in Hutchinson (Gettys or Witte) from whom he derived [it].”

Wilson v. So. Ry.,

123 S. C., 399; 115 S. E., 764 (8).

A. C. L. v. Searson,

Opinion filed November 9, 1926, 137 S. C., 468; 135 S. E., 567 .

Williamson v. Abbott,

107 S. C., 401; 93 S. E., 15 .

(7) Continuous. — “It has been said that, if there be one element more distinctly material than another in conferring title by adverse possession, where all requisites are so, it is the existence - of a continuous adverse possession. There must be such continuity of possession as will furnish a cause of action for every day during the whole period required to perfect title by adverse possession.”

Cathcart v. Matthews,

105 S. C., 340; 89 S. E., 1021 .

Hill v. Saunders, 6

Rich. Law, 67; 68.

Sims v. Davis & Tygart,

Cheves, 4; 34 Am. Dec., 581 .

Glenn v. Walker,

113 S. C., 9; 100 S. E.,

706. Clary v. Bonnett,

114 S. C., 452; 103 S. E., 779 .

Ouzts v.

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McKnight ,

114 S. C., 306; 103 S. E., 561 .

Frady v. Ivester, supra. Watt v. Trapp,

2 Rich. Raw, 136; 9 R. C. L., p.

777,

§ 36.

And in

Clary v. Bonnett,

Mr. Justice Hydrick says :

“There can be no constructive adverse possession of land against the owner, where there has been no actual possession which he couid treat as a trespass and bring action for.”

And in

Ouzts v. McKnight,

Mr. Justice Gage says :

“Adverse possession is hostile * * * and hostile possession * * * with intention to dispossess the owner.”

And in

Watt v.

Trapp the Court says:

“To give rise to .a prescription, the use must be continuous, and it cannot be pretended that a use, with an interval of at least five years, is anything like continuous.”

There is no doubt that the respondent was a tenant on the Mulberry plantation continuously from 1901 to 1923. The plaintiff, under the evidence and the law applicable to the facts of the case, has failed to make out his case, and his Honor was in error in not directing a verdict for the defendants as asked for.

The judgment of the Circuit Court should be reversed, and the case remanded for the purpose of entering up judgment for the defendants under Rule

27

of this Court.