Cherry v. Fewell

• Decision Date: 20 March 1897
• Citation: 26 S.E. 798,48 S.C. 553
• Parties: CHERRY v. FEWELL, Mayor, et al.
• Court: South Carolina Supreme Court

26 S.E. 798

48 S.C. 553

CHERRY v. FEWELL, Mayor, et al.

Supreme Court of South Carolina

March 20, 1897

Appeal from common pleas circuit court of York county; R. C. Watts Judge.

Action by William J. Cherry against John W. Fewell, as mayor, and Edward E. Poag and others, aldermen, of the city of Rock Hill, to enjoin the alteration of a public street. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

C. E Spencer, for appellant.

Wm. A Barber, Atty. Gen., for respondents.

McIVER C.J.

Inasmuch as the sole question presented by this appeal is whether the circuit judge, the Honorable R. C. Watts, erred in sustaining a demurrer, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, a copy of the complaint should be incorporated by the reporter in his report of this case. We will, however, first state, substantially, the allegations of the complaint. In the first and second paragraphs, the character of the parties--the plaintiff as a citizen and resident of the city of Rock Hill, and the defendants as mayor and aldermen of said city--is stated. Third: The allegation is that plaintiff is the owner in fee of a certain parcel of land in said city, bordering on Park avenue (describing it), and that the same was conveyed to him by the Rock Hill Land & Town-Site Company, subject to the proviso and condition "that no structure that will materially obstruct the view of adjoining proprietors shall be erected within twenty-five feet of Park avenue, and that said William J. Cherry, his heirs or assigns, shall never erect any residence on said premises that shall cost less than fifteen hundred dollars when complete; and, further, that no mercantile or manufacturing business shall ever be conducted on said premises"; and the averment is made that plaintiff, in strict compliance with the foregoing proviso, has erected a residence upon said lot, fronting on the said street, which he has been occupying as such, his place of business as a practicing attorney being about three-quarters of a mile therefrom, in the center of said city. Fourth: That said Park avenue was at the time of his purchase of said lot, and has since continued to be, not only a public street of said city, but a public highway of the said county and state leading into said city, it having been regularly laid out as such by the proper authorities of the county of York before the corporate limits of said city were extended over plaintiff's said lot. Fifth: That by one of the provisions of the charter of the said city it is provided: "The city council of Rock Hill shall have full power and authority to open new streets in said city, and close up, widen or otherwise alter those now in use, or which may hereafter be established, whensoever, in their judgment, the same may be necessary for the improvement or convenience of said city. Should the land owner or owners through whose premises such street or streets may be run refuse his or her or their consent to such action of the city council in opening, closing up, widening or altering such street or streets, the said city council shall have the right to take possession of all such land, and remove all obstructions necessary to carry out the provisions of this section, upon paying to the owner or owners of such land such damages as shall be fixed and determined by five freeholders of said city," etc.; the statute proceeding to provide how such freeholders shall be chosen. Sixth: That on the 9th of October, 1893, the said city council adopted the following resolutions: "That that part of Park avenue passing through the grounds of the Winthrop Normal and Industrial School be closed, provided that there be no cost accruing from lawsuits or otherwise to city council; and that the W. N. and In. School agree in writing to make as good streets around their grounds as that part of Park avenue now passing through said grounds; the time in which to build said streets to be stipulated in said written articles of agreement." Seventh: That the said city council have not only threatened to carry out said resolution, but have actually commenced to close up said street at the points indicated, "being about 225 feet from the plaintiff's lot, in the direction of the center of the city, and of the plaintiff's place of business; and so the said city council are cutting off plaintiff and his said lot from the center of the said city by way of the said street, thus forcing him to take a more circuitous and difficult route, to his great inconvenience personally, and to the great damage to his said lot as a place of residence, to wit, in the sum of one thousand dollars." Eighth: That the said city council have not only refused to have the plaintiff's damages assessed, under the provisions of the charter of the city above referred to, but have denied that the plaintiff is entitled to any compensation at all. Plaintiff denies the authority of the city council to close said street, and avers that, if they have any such authority, it can only be exercised after compensation made to plaintiff, under the foregoing provisions of the charter of the city. Ninth: That the plaintiff is without remedy save that invoked by this action. Wherefore he demands judgment that said city council be perpetually enjoined from closing up said street; and that they be required to remove all such obstructions as they have already made therein, and so abate the nuisance herein complained of; and for such other relief as may be just.

The only question being, as we have said, whether the complaint states facts sufficient to constitute a cause of action, our first inquiry is, what is the gravamen...