Chafee v. City Of Aiken

• Decision Date: 23 April 1900
• Citation: 57 S.C. 507,35 S.E. 800
• Parties: CHAFEE v. CITY OF AIKEN et al.
• Court: South Carolina Supreme Court

35 S.E. 800

57 S.C. 507

CHAFEE

v.CITY OF AIKEN et al.

Supreme Court of South Carolina.

April 23, 1900.

MUNICIPAL CORPORATIONS — STREET — DEDICATION—ACCEPTANCE—RIGHT TO OPEN—ESTOPPEL—NONUSER—ADVERSE POSSESSION — QUESTIONS FOR JURY.

1. Acceptance of a dedication of lands for a street by public authorities must take place within a reasonable time, and what is a reasonable time is a question for the jury.

2. Where a town was incorporated by a legislative act, from which it could not be determined whether the streets then in use, or those appearing on maps, were in contemplation of the legislature, the question was a proper one to submit to a jury, on an issue as to the dedication of a street.

3. Acceptance of a part of a street by a municipality to which the street has been dedicated is prima facie evidence of an acceptance of the whole street.

4. No formal acceptance of a street dedicated to a municipality is necessary.

5. A charge that a municipality lost its right to open a street by passing a resolution not to disturb existing street lines, although they were inconsistent with the survey, was rightly refused, since the question was one for the jury.

6. No rights against a municipality, in a street dedicated to it, can be acquired by adverse possession.

7. Mere nonuser of a street by a municipality will not amount to such an abandonment as will destroy its right to open the same.

8. A charge that a municipality was estopped from opening a street because it had allowed plaintiff to take possession and improve property for more than 20 years was rightly refused, since the question was one for the jury.

9. Where a legislative act was in evidence, it was proper to give a charge construing the same.

10. The fact that a municipality took no steps to open a street dedicated will not estop it from claiming the right to do so, as against an occupant, in the absence of any recognition of such occupation.

11. Where no notice was given a municipality that plaintiff paid taxes on lands dedicated for a street, the municipality was not thereafter estopped from asserting its right to open the street.

Appeal from common pleas circuit court of Aiken county; W. C. Benet, Judge.

Action by W. H. Chafee against the city of Aiken and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

G. W. Croft & Son, for appellant.

Mr. Henderson, for respondents.

GARY, A. J. This is an action for the purpose of restraining the city of Aiken from entering upon a lot which the plaintiff alleges belongs to her, and opening a street across the same; also, for damages on account of the destruction of a number of shade trees. The defendants deny the title of the plaintiff, and contend that the locus in quo is a part of Fauburg street, which the city of Aiken claims both by statutory and common-law dedication. The jury rendered a verdict in favor of the defendants. The plaintiff appealed upon exceptions, the first of which is as follows: "(1) Because his honor, the presiding judge, charged the jury: 'The public authorities-county commissioners, town council, as the case may be—will be held to have refused, if within a reasonable time after the dedication by the owner nothing has been done by the authorities. How much time is a reasonable time is for the jury to determine in a given case. The jury is to consider all of the circumstances surrounding the case, —evidence of the size of the town, population, the direction in which the town may be extending, and other circumstances which may or may not account for the interval of time elapsing between a dedication and acceptance.' In this it is submitted that his honor erred; for he should have charged the jury that under the law twenty years was a reasonable time, and if the town had not accepted the dedication, or done some act showing that it intended to accept the street within that period, then it could not legally do so afterwards, where intervening rights have accrued." The first, second, and third of the plaintiff's requests, which his honor charged, and the authorities relied upon both by the appellant and respondents, recognize the correctness of the proposition that the acceptance of the property dedicated must take place within a reasonable time. The law charged was sound in principle. If the presiding judge had charged that 20 years was a reasonable time, he would have deprived the jury of the right to determine a question which was peculiarly within their province. In reaching a conclusion as to whether the time was reasonable, the jury had the right to take into consideration, not only the time that had elapsed.but all the other facts and circumstances in the case.

The second exception is as follows: "(2) Because his honor, the presiding judge, charged the jury: 'It is for you to say what evidence there was of the particular streets and alleys that were in contemplation by the then general assembly, and I must charge you that the streets and alleys did not go beyond a mile from that railroad bridge. You are to say from the testimony, if any testimony there be, what streets and alleys were at that time in contemplation of the legislature that granted this act of incorporation. It is important to bear this in mind: Does the evidence in this case show any specific plan or plat or map of the intended town of Aiken was considered by the legislature, and does the evidence in this case show what streets and alleys were referred to by the legislature in the act of the assembly I have quoted, between the limits of one mile from the railroad bridge?' In this it is submitted that his honor erred, because there was no evidence touching this matter, and he therefore should not have submitted this proposition to the jury; and his honor further erred in leaving it to the jury to construe whether the act of the general assembly referred to any plan or map of the town of Aiken, but, to the contrary, he should have instructed the jury that said act did not refer to any plan or map." The cases of State v. Lythgoe, 6 Rich. Law, 112, and Town Council v. Lythgoe, 7 Rich. Law, 435, dispose of several questions that have arisen in this case. In those cases the court had before it the map of Pascalis & Dexter, while in this case it had before it the plat of Thomas Anderson, representing a part of the town of Aiken as laid out by the South Carolina Canal & Railroad Company, dated 31st of May, 1834. This disposes of so much of tie exception as alleges that there was no evidence upon which the question could be submitted to the jury. The other question raised by the exception is disposed of by what was said in town council v. Lythgoe, supra. In speaking of the acts of 1§35 and 183G, the court says: "Did they refer only to such [streets] as were then open and in use, or to such as were designated on a certain plat or plan of a town called the 'Town of Aiken, ' constructed as early as September, 1S34, at the instance of the South Carolina Canal & Railroad Company. * * *" Now, the language of the legislature is not of clear and precise import. The subject-matter, as it regards the question here, is uncertain. There is a latent ambiguity. Evidence and reasoning on both sides have been resorted to in this case, as in that of State v. Lythgoe, for the purpose of expounding it We cannot and need not repeat here all that has been and may be said on either hand. If the meaning of the words used by the legislature be legitimately a question of doubt and of fact, —if evidence be legitimately receivable upon it, — it should have gone to the jury; and this much was adjudged in the former case, in relation to a contest involving the very same point, resting upon the same basis, though the complaint of the plaintiffs, made through the state, related to a different street. But the instruction to the jury was that no power had ever been given to the plaintiffs to open new streets in the town of Aiken, except by a strict compliance with the act of 1825 regulating the action of commissioners of roads; that the power of the corporation was confined to the keeping open and in repair of such streets, only, as were in existence at the date of the charter; and that in that charter, or the amendment of 1836, there was not the slightest reference to the map of Pascalis & Dexter Presuming always that the jury are guided by material instructions from the court, when they find accordingly it is manifest that they excluded from their deliberations any inquiry whether the acts of assembly adopted streets indicated upon the plan of Pascalis & Dexter. If this be right, it seems that this court ought to have remanded for a new trial the case of State v. Lythgoe, wherein the said inquiry was submitted to the jury upon evidence then heard, and their finding that the street then in question was established as a public road in the town of Aiken was affirmed in this court. There was the same necessity for submitting the question to the jury in this case that there was in the case just mentioned, and there was no error in so doing.

The third exception is as follows: "(3) The plaintiff's eighth request is as follows: 'If an owner of land lays off a street on a plat within the corporate limits of the town, intending thereby to dedicate such street as a public way, then the town has the right to accept or use the whole or a part of such street, as it deems proper; and if the town has accepted or used a part of said street, and has allowed the rest of said street to remain unopened, then it would not necessarily follow that, because it has used one part, it had accepted the whole of the street through its entire length. Under such circumstances, it is plain that if said street is a public way through its entire length, those who make such claim would be called upon to show by the evidence that the town did in fact accept the whole of said street as a public way through the unopened part.' It is submitted that said request is a correct pro...