Babb v. Harrison

• Decision Date: 27 July 1951
• Docket Number: No. 16526,16526
• Citation: 66 S.E.2d 457,220 S.C. 20
• Court: South Carolina Supreme Court
• Parties: BABB v. HARRISON.

Page 457

66 S.E.2d 457

220 S.C. 20

BABB v. HARRISON.

No. 16526.

Supreme Court of South Carolina.

July 27, 1951.

Cain & Earle, Greenville, for appellant.

E. M. Blythe, Jr., J. D. Lanford, Greenville, for respondent.

TAYLOR, Justice.

This action was brought in the County Court of Greenville County to establish title to a small triangular portion of appellant's land which had been used by respondent as a portion of her driveway. The complaint states in substance that respondent owned and occupied certain property on West Stone Avenue in the City of Greenville and for ten years prior thereto had held the open, notorious, exclusive, hostile, continuous and unbroken possession of the driveway in question and that appellant was attempting to erect a fence into a portion of said driveway in such a way as to deprive respondent of her use and asked that appellant be permanently enjoined from interfering with respondent's use thereof. Simultaneously appellant was served with a rule to show cause why she should not be enjoined from doing the acts complained of and that she in the meantime be restrained pending the hearing. Prior to the hearing, respondent amended her complaint and contended further that she was entitled to the use of the disputed property by way of prescription, contending that the driveway as now exists had been used and occupied by respondent and her predecessors in title for a period of more than twenty years and prayed that she be declared the owner of the driveway as it now exists or in the alternative be declared to have an easement over same. Appellant filed her answer and return simultaneously, wherein she sought to have the restraining order dissolved, admitted the existence of the driveway and the use thereof by respondent from time to time, but denied that respondent's use had been open, nortorious, exclusive, hostile, continuous, unbroken or adverse and prayed that the injunction sought be dismissed.

On August 7, 1950, His Honor, the Presiding Judge, filed his decree holding that respondent had established her right to an easement by prescription over said disputed area and enjoined the appellant from obstructing the same and refused to pass upon respondent's claim of title by adverse possession.

Respondent carries with her the burden of proving that the use of such disputed area was adverse for the full period of twenty years in order to establish an easement by prescription. About the year 1946, respondent's husband stated that he 'claimed to the hedge.' Prior to this, there is no testimony as to any words or acts evidencing such claim. A survey of the property was not made until shortly prior to the commencement of the proceedings in this case. After the corner was definitely established by survey, it was proposed that, if appellant would grant respondent an easement over the disputed area, respondent would in turn grant a like privilege over the back of respondent's lot. It is therefore clear that neither party knew the exact location of the line which renders it difficult to see how respondent could have intended to assert any adverse claim to any portion of appellant's land. Certainly respondent was not claiming beyond the boundary at the time the proposition for an easement thereon was made as there would be no reason for such request. If she was not and had at no time prior thereto claimed beyond the confines of her bounds as she understood them, there could have been no intention to usurp possession beyond such boundaries within which she had good title. It is evident that she was claiming only that which she had purchased, and there was no occasion for her to claim otherwise prior to the making of the survey and learning of the encroachment on appella...