Billings v. McDaniel

• Decision Date: 14 July 1950
• Docket Number: 16384.
• Citation: 60 S.E.2d 592,217 S.C. 261
• Parties: BILLINGS et al. v. McDANIEL.
• Court: South Carolina Supreme Court

60 S.E.2d 592

217 S.C. 261

BILLINGS et al. v. McDANIEL.

No. 16384.

Supreme Court of South Carolina.

July 14, 1950

Charles W McTeer, Chester, for appellant.

McFadden & McFadden, Chester, for respondents.

TAYLOR, Justice.

Action in this case was commenced June 17, 1949, by respondents, seeking to enjoin 17, 1949, by respondents, seeking to enjoin the appellant from obstructing a certain alleyway or right-of-way at the rear of properties fronting on Saluda Street in the Town of Chester, South Carolina. All of the property involved was once a portion of the estate of S.W Mobley, deceased, which was divided into various lots on or about February 20, 1909, as is more fully shown by plat bearing this date by James McLarnon and recorded in the office of the Clerk of Court of Chester County in Vol. 123 page 256.

Appellant interposed the defense first, that no necessity exists for the alleyway; second, that said alleyway had been abandoned and third, that respondents are estopped from claiming an easement in said alleyway.

All respondents, with the exception of W. H. Peden, base their contentions upon grants by deeds, al of which refer to the plat, heretofore referred to, in which the alleyway was created for the benefit and convenience of the owners of the lots abutting thereon. Respondent Peden is the owner of a plot, 50 feet square, at the northern end of Lot No. 10, as shown on the plat, which is located on the southern side of the alleyway in question and immediately to the rear of Lot No. 6, which is owned by appellant, and his only means of ingress to and egress from his lot is by and over the alleyway in question. Therefore, actual necessity exists as to this lot.

The deed by which Lot No. 6 of Block 'A' was acquired by appellant shows such lot to be 50 feet wide and 158 feet deep, being bounded on the west side by the alley. Appellant testified that, when he purchased this property in 1942, he knew that his lot was bounded by the alleyway in question and that such was not included in the property he purchased. He also testified that he knew that respondent Peden owned a lot immediately to the rear of his and that, should he be successful in closing this alleyway, Peden would have no means of ingress and egress except over property belonging to others. His position, however, is that this alleyway was abandoned prior to his purchase of Lot No. 6 in 1942, that neither respondents nor their predecessors in title had made use of said alleyway, but on the contrary had obstructed same bybuilding fences across and various buildings thereon, and that bushes and large trees had been permitted to grow in such a way as to render the alleyway useless.

Respondent Peden, who has been familiar with this property since it was sold by lots in 1909, testified that he lived on Lot No. 2 from approximately 1910 until 1946; that the said alleyway was in use regularly during that period of time, particularly for the hauling of coal and wood, etc.; that the alleyway had always been in use during that time and had never been closed; that in 1946 he sold this property to Mrs. Pauline Ross; that prior to that time he and the other people whose property adjoined this alley made use thereof and that it was never closed.

Mrs. Ross testified that the alleyway was used during the months of June, July and August of 1949 and that she would have used it much more frequently but for the fact that appellant ordered trucks not to use the alley.

Respondent Plyler testified that, when he purchased his property in 1937, the alleyway was open and usable, that he had since used this alleyway and had observed his neighbor, Mr. Taylor, doing likewise.

Respondent Miss Mary Bradford, testified that, when she her sister purchased their home in 1935, the alleyway was open to Walnut Street and that it was never obstructed in such way as to render it unusable until appellant placed a gate across it.

Respondent Billings testified that for the past seven years the alleyway had been open and usable, that the city trash wagon hauled trash therefrom in 1949, and that he had observed a neighbor using it as a means of access to the back of his lot.

It seems to be uncontradicted that some of the adjoining roperty owners encroached over the line at various places along the alleyway, but the jury, after hearing the testimony and viewing the exhibits, decided and found that the alleyway had not been abandoned, and there is ample evidence to support such findings.

'Generally where property sold is described with reference to a plat or map upon which streets and ways are shown, an easement therein is implied. * * * There is an implied covenant that such ways exist and shall kcontinue to exist. Easements implied in accord with...