Cason v. Gibson

Citation61 S.E.2d 58,217 S.C. 500
Decision Date06 September 1950
Docket Number16405.
PartiesCASON v. GIBSON et al.
CourtSouth Carolina Supreme Court

Bowen & Bryson, Greenville, for appellant.

Love Thornton & Blythe, Wyche, Burgess & Wofford, and William I Bouton, all of Greenville, for respondent.

STUKES, Justice.

Minnie P. Cochran owned a tract of land which was near but is now, since 1947 within the limits of the City of Greenville. In 1937 she procured to be made by surveyors a subdivision of a portion of it and lots and streets were designated and mapped. The plat was recorded in 1938 and shows lot No. 47 facing northwest on an unnamed street which intersected another unnamed street at the corner of the lot, thus making it a corner lot with street frontage of 78.8 feet, running back 125.9 feet on the street which constituted the southwest boundary of the lot. The street last referred to is here in controversy. It was shown on the recorded map as being of a uniform width of 40 feet, meandered in a generally southerly direction and intersected West Augusta Place Street which was 50 feet in width. The subdivision map showed an irregular block composed of eleven lots, bounded on all sides by streets, of which lot No. 47 was the northwest corner.

By deed dated June 13, 1946, Mrs. Cochran conveyed lot No. 47 to Joseph H. Parrott and Mary C. Parrott describing it by the plat which had been recorded in 1938 and reference was had to the book and page of record and the streets were referred to as boundaries. On Sept. 18, 1946, the Parrotts conveyed by the same description to H. C. Smith and C. S. Fox and the latter two named conveyed to plaintiff by deed dated Dec. 31, 1946, using the same description.

Fox testified for plaintiff at the trial that he was the agent of Mrs. Cochran and as such made the sale of lot No. 47 to the Parrotts and in the negotiation he represented to them that the lot was a corner lot and in that connection showed them the 1937 recorded plat. Subsequently the witness and his partner, Smith, purchased the lot on their own account from the Parrotts and afterward sold it to the plaintiff, at that time showing him the recorded plat and representing to him that he was buying a corner lot. The witness had no information concerning the street in question except that obtained from the recorded plat and he had talked to Mrs. Cochran, his principal, about the lot sale and also to her son, Dan W. Cochran.

The latter testified that as an executor of his father's will and as agent for his mother he engaged the surveyor and attended to the recording of the 1937 plat which did not include all of his mother's adjacent land, omitting five acres lying to the west of the platted portion. There has never been any acceptance of the strip of land, constituting the street in controversy, by Greenville County or City and it has not been used by the public. In 1949 witness' mother had a new plat made which took in land to the west of that originally mapped, eliminated the contended street and substituted another farther west. The witness employed a Mr. Ashmore to grade the streets shown on the original plat but the street in controversy was not graded because of the excessive cost and on that account he, as his mother's agent, decided to abandon it.

The defendants, who are now respondents, separately purchased from Mrs. Cochran in September and October 1949 three lots numbered, respectively, 49, 50 and 51 per the 1949 plat and each of the lots contains a portion of the street which bounded plaintiff's lot on the west, according to the 1938 plat by which he purchased. Alleging that two of the respondents had commenced the erection of buildings on their lots, plaintiff brought this action in October 1949 to enjoin the obstruction of the street in controversy. There is no question of notice to respondents of plaintiff's claim of right in the street at the time of their respective purchases and the above dates show the promptness of his legal action.

The defendants answered separately. The answers included denials and other defenses: (1) that if there was a dedication of the street as such, it was revoked by Mrs. Cochran and abandoned by her and by plaintiff before public acceptance or use; (2) that plaintiff is estopped by his acquiescence in the revocation; and (3) that the street is not essentially necessary to the use and enjoyment of plaintiff's property. The case was tried by the court which heard the evidence without the intervention of master or jury and rendered judgment for the defendants, whence this appeal.

A case close to this in facts is Marshall v. Columbia etc. Street Ry. Co., 73 S.C. 241, 53 S.E. 417, 421. Defendant there owned a large acreage just north of Columbia which was platted for the purpose of laying out the town of Eau Claire. At and including the intersection of two principal streets about four acres were designated on the map as the 'Circle'. Plaintiff purchased large abutting lots which were described by reference to the plat and the 'Circle' was given as a boundary. Defendant also orally represented to plaintiff that the 'Circle' which bounded her lots had been dedicated for public purposes and would be kept open, upon which plaintiff relied. Afterward defendant altered its plan and divided the area of the 'Circle', except the street intersection, into lots per a new plat and they were sold to various purchasers with notice of plaintiff's contention, and they were made co-defendants in the action. The court concluded that the seller had dedicated the 'Circle' to public uses and that the plaintiff, having bought in reference thereto, had an easement in the 'Circle' area and none of it could be sold as lots to others who had notice. The judgment was effectuated by permanent injunction against all of the defendants. This court said in affirming the judgment that, quoting, 'Even if the 'Circle' was not dedicated so as to confer rights that could be enforced by the public, nevertheless, if the company represented to the plaintiff that the 'Circle' would be kept open, and thereby induced the plaintiff to purchase her lots, such representations would be binding upon the defendant.'

The facts of the Marshall case came again before the court in Diseker v. Eau Claire Land & Improvement Co., 86 S.C. 281, 68 S.E. 529. The defendant appears to have been the successor in title of the corporate defendant in the Marshall case and it conveyed to plaintiff lots which had been carved from the 'Circle'. Plaintiff sued upon the covenant of warranty contained in his deed and alleged that the property had been formerly dedicated to the use of the citizens of Eau Claire for the purpose of establishing a park or public place which constituted an easement in the public. The court affirmed nonsuit upon the ground that plaintiff had not been evicted and for that reason could not maintain an action for breach of warranty. It was carefully said that the rights of the plaintiff in the Marshall case were not involved in the action then in hand, thus not impinging upon the authority of it.

Finally, the facts of the Marshall case were presented again in Safety Building & Loan Co. v. Lyles, 131 S.C. 542, 128 S.E 724. Plaintiff had become the owner of a lot carved from the 'Circle' and bargained to sell it to Lyles who refused to comply with his contract upon the ground that it was encumbered by an easement in favor of the representatives of Mrs. Marshall, then deceased, and in favor of the town of Eau Claire and the public, or of one or more of them. The town and the legatees, devisees and heirs at law of Mrs. Marshall were made defendants. Two daughters of Mrs. Marshall and the town of Eau Claire defaulted. Two granddaughters of Mrs. Marshall filed answers in which they alleged that the real estate of which their mother died seized had been sold in aid of assets and that they no longer had any interest of substantial nature in the 'Circle' of which they knew, but they submitted their rights to the protection of the court. The principal defendant, Lyles, denied the conclusions of the complaint, particularly that the easement or right acquired by Mrs. Marshall was merely in gross and that there had been no dedication. The brief judgment of the trial court was adopted without opinion by this court. It was held that there was no completed dedication of the 'Circle' to the public because the latter was not a party which, we add, is unquestionable under the authorities, in view of the absence of acceptance or user. State v. Carver, 5 Strob. 217, Chafee v. City of Aiken, 57 S.C. 507, 35 S.E. 800; 16 Am.Jur. 377 et seq., Dedication, Sec. 30 et seq. It was further pointed out that the plat by which Mrs. Marshall purchased was...

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