Beaudrot v. Murphy

• Decision Date: 06 August 1898
• Citation: 30 S.E. 825,53 S.C. 118
• Parties: BEAUDROT v. MURPHY.
• Court: South Carolina Supreme Court

30 S.E. 825

53 S.C. 118

BEAUDROT v. MURPHY.

Supreme Court of South Carolina

August 6, 1898

Appeal from common pleas circuit court of Greenwood county; James Aldrich, Judge.

Action by M. A. Beaudrot against H. H. Murphy for injunction. Judgment for plaintiff. Defendant appeals. Affirmed.

Giles & Magill, for appellant.

Sheppards & Grier, for respondent.

POPE J.

H. H Murphy, under a supposed right to do so, began tearing down the fencing of Mrs. M. A. Beaudrot, in the town of Greenwood in this state, which fencing inclosed her lands in said town. Mr. Murphy claimed his right to molest the property rights of Mrs. Beaudrot, because, under sections 1175 to 1180 of the Revised Statutes of this state, he conceived that he could obtain a right of way from his dwelling house over the lands of Mrs. Beaudrot, without her giving him any consent therefor, when, in fact, he had already a right of way whereby he could enter his lot and leave the same, but which he thought was somewhat inconvenient, and also when, in fact Mrs. Beaudrot's land did not entirely surround his lot. Upon complaint of Mrs. Beaudrot setting forth these facts and upon the answer of Mr. Murphy, and on agreed statement of facts, the case was heard by Judge Aldrich. He very promptly made an order perpetually enjoining Mr. Murphy from interfering with the property of Mrs. Beaudrot, on the ground that, under the constitution of our state adopted in 1895, even if Murphy had pursued the course pointed out in sections 1175 to 1180 of our Revised Statutes, inasmuch as Mrs. Beaudrot had never consented to allow her property to be used by him, such sections 1175 to 1180 were unconstitutional, and therefore void. From this order of Judge Aldrich, Mr. Murphy now appeals to this court.

It seems that under sections 1175 to 1180 it is provided that in the event the owner of a piece of land, surrounded on all sides by lands owned by private persons, is without any right of way from the land so surrounded to the nearest highway, he may obtain the aid of a referee named by himself, with the right in the owner of the land whereon the right of way is to be located to name a second referee, and these two referees to select a third referee, to locate this private way. These sections were made up from the provisions of an act of the general assembly passed in the year 1872. Those sections received a construction in the suit State v. Stackhouse, 14 S.C. 417. By that decision ...