Brasington v. Williams

• Decision Date: 30 November 1927
• Docket Number: 12325.
• Citation: 141 S.E. 375,143 S.C. 223
• Parties: BRASINGTON v. WILLIAMS et al.
• Court: South Carolina Supreme Court

141 S.E. 375

143 S.C. 223

BRASINGTON v. WILLIAMS et al.

No. 12325.

Supreme Court of South Carolina

November 30, 1927

Appeal from Common Pleas Circuit Court of Kershaw County; M. L Bonham, Judge.

Action by S. F. Brasington against Ellen M. Williams and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Watts C.J., dissenting.

E. D Blakeney, of Camden, and D. W. Robinson, of Columbia, for appellants.

RPT.CC.1928107775.00010

(Image Omitted) Mendel L. Smith and I. C. Hough, both of Camden, for respondent.

COTHRAN J.

I regard this case as one of the very greatest importance, the decision of which will control, in a measure, one of the most constantly recurring grounds of controversy in reference to a right which is held to as tenaciously, and asserted as vigorously, as the recognized love of the Anglo Saxon for his land: The right to the use of a road. I have accordingly given to it my most earnest and laborious consideration.

The action commenced January 20, 1923, is for damages and an injunction, by reason of the obstruction of a road leading from what is known as the "Charleston road," about four miles from Camden, through the lands of the defendant Ellen M. Williams, known as "Mulberry," to a farm owned by Dr. Brasington, the plaintiff, known as "Belmont," claimed by the plaintiff as a right of way.

A temporary injunction was issued at the time of the commencement of the action, and was subsequently continued until the hearing of the case upon the merits.

The law side of the case was tried before his honor Judge Bonham and a jury, in March, 1924, the result of which was a verdict in favor of the plaintiff for $1 damages; and, upon the rendition of that verdict, a decree for a permanent injunction was entered on the equity side. From the judgment entered upon the verdict, and from the decree, the defendants have appealed. (While Ellen M. Williams and her husband, David R. Williams, are both made defendants in the case, the title to the property appears to be in Ellen M. Williams, and I shall refer to the defendants as the defendant, meaning Ellen M. Williams.

The plaintiff seeks to establish his easement of a right of way upon two grounds: (1) That he is entitled to it as a right of way of necessity; (2) that he is entitled to it as a right of way, appurtenant to his land, by prescription.

The defendants moved for a directed verdict upon the following grounds:

"(1) Plaintiff has shown no right of way by necessity, because:

(a) He has not shown under the pleadings and evidence any such necessity as would entitle him to a right of way over the defendant's land;

(b) No such right of way exists under the Constitution and laws of this state at the present time.

(c) At the time of the sale and division of the Chestnut lands, the roadway leading along the dividing line between 'Mulberry' and the Deas or Barnes land, also known as the Getty's road, was agreed upon and accepted as the road to and from 'Belmont,' and the plaintiff is bound thereby.

(2) Plaintiff has shown no right of way by grant.

(3) Under the pleadings and evidence, plaintiff has shown no right of way by prescription, because:

(a) He has shown no continuous, uninterrupted user adverse and as of right of the identical way for a period of 20 years by himself and by his predecessors in title, in privity with whom he claims.

(b) The undisputed evidence shows that the use of any way over 'Mulberry' by the owners of 'Belmont' originated and began by license or permission, and there is no evidence showing a change of this character of user."

The motion was refused by his honor Judge Bonham. The exceptions of the defendants assign error in such refusal, and in certain charges, refusals to charge, and modifications of the requests to charge.

The situation cannot be completely explained or understood without reference to the blueprint in evidence, which, on a greatly reduced scale, omitting the multitude of courses and distances, should be incorporated in the report of the case. [See plat opposite]

The plaintiff's plantation, "Belmont," containing 801 acres, is largely embraced within, and almost completely surrounded by, a loop in the Wateree River, which begins at the northern end of the eastern line of the tract, and describes almost a circle, of about seven miles in length, back to the southern end of said eastern line, at a point about half a mile from the beginning. The tract is, roughly speaking, in the shape of a horseshoe. The eastern line referred to represents a line drawn between the two ends of the horseshoe, commonly called the "heel." The eastern line of the plaintiff's plantation divides it from the defendant's plantation and lands belonging to Deas and Barnes; the dividing line between the defendant's land and that of the other parties named striking the eastern line of the plaintiff's land nearly midway between the northern and southern ends of that line.

The road which the plaintiff claims as his right of way begins at a point within the limits of his tract, crosses the said eastern line of his land, quite near the northern end of it, extends 7,000 feet (1 1/3 miles), practically northeast, over the lands of the defendant to what is known as the "Mulberry quarters"; thence at right angle still over the defendant's land, practically due east, half a mile, to the "Charleston road."

A second road, referred to as the Getty's road, began at a point within the limits of the plaintiff's land, crossed the said eastern line of his land, quite near the southern end of it, extended practically northeast, over the land of the defendant, about eight-tenths of a mile to a point where it forked; the upper fork extended practically northeast, over the land of the defendant, about eight-tenths of a mile to a stone corner on the "Charleston road"; the lower fork, known as the Powell road, extended practically southeast, over the lands of Powell, about one and one-fourth miles, to a point on the "Charleston road," some half mile south of the stone corner.

I shall not consider, for I do not think it necessary, any other question in the case than whether there was sufficient evidence of the plaintiff's acquisition of an easement of right of way, of necessity, over the land of the defendant, to warrant a submission of the case to the jury.

It is conceded that all of the land involved or referred to in this litigation, the Belmont plantation, the Mulberry plantation, and the lands of Deas and Barnes lying south of Mulberry and east of Belmont, constituted an entire plantation, which, prior to 1869, belonged to General James Chestnut, whose home site was located upon Mulberry. In 1869 Belmont was conveyed to Clarke and Gettys. In 1873 Clarke conveyed his interest to Gettys. In 1883 Gettys conveyed Belmont to Witte. In 1919 the heirs of Witte conveyed to the plaintiff herein, Brasington. The chain of the defendant Mrs. Willaims' title does not so distinctly appear, but it is conceded that both Brasington and she claim from a common source of title, General Chestnut.

It appears that that part of the road claimed as a right of way by the plaintiff, leading from the northern end of the eastern line of Belmont, over the lands of Mulberry, up to what was known as the "Mulberry quarters," was opened by General Chestnut, and had been used by him and others for many years.

It also appeared that an old road, leaving the road just referred to at the "Mulberry quarters," led over the lands of Mulberry at right angles practically out to the "Charleston road." This old road was opened by General Chestnut, and was used by him and others for many years. It has been changed in some particulars, as will be noted, by the plaintiff, and it constitutes a link in his claimed right of way, leading from Belmont to the "Mulberry quarters," and thence to the "Charleston road."

As I view the matter, it does not make any difference whether or not the road claimed by the plaintiff had actually been opened and used by General Chestnut and others at the time the plaintiff purchased Belmont. The transmutation of the title from General Chestnut by deed to his immediate grantee carried the implication of a covenant that the grantee should possess whatever easement was reasonably necessary to the enjoyment of the granted premises; and such implied covenant was one "running with the land," which vested in each successive grantee.

The appellants contend that the question of acquisition of the easement by reason of necessity has been precluded by the order of his honor Judge Townsend sustaining a demurrer to the third cause of action which set up the right.

The order sustaining the demurrer to the third cause of action only determined that there was a defective statement in the particulars indicated in the order, and which were adjudged by the circuit judge as essential to a cause of action setting up a right of way of necessity, but did not adjudge that a right of way of necessity does not exist under our legal system. In holding that there was a failure to allege a unity of title, and also the degree of necessity required to establish such a way, does not by any means indicate that, if such facts had been alleged, there would not have been a proper statement of cause of action. The order simply adjudged a defective statement of a recognized right, but did not attempt to deny the existence of the right itself. In the case of Whaley v Stevens, 21 S.C. 221, the court held that the complaint was demurrable upon the ground that it did not state that the prescriptive right of way involved in that case was reasonably necessary for the enjoyment of the premises, and, therefore, failed to state a cause of action setting up an appurtenant right of way. It...