Appeal
from common pleas circuit court of Charleston county; J. B
Kershaw, Judge.
Action
by the city council of city of Charleston against Doris
Werner for filling up a low lot in the city owned by
defendant. Defendant's oral demurrer to the complaint was
overruled, and she appeals. Affirmed.
The
complaint reads as follows: "The said city council of
Charleston, plaintiff, complaining of the said Mrs. Doris
Werner, the defendant, alleges: (1) That it, the said
plaintiff, is a municipal corporation, under the laws of the
said state of South Carolina. (2) That by sections 227 and
228 of the Revised Ordinances of the city of Charleston
ratified in city council on the 26th day of September, 1882
it is ordained and enacted as follows, that is to say
'Sec. 227. Whenever it shall appear to the board of
health that any low lots or vacant grounds are in a condition
to injure or endanger the public health, it shall be the duty
of the said board of health to appoint a board of inspection,
to be composed of the city registrar and four members of the
board of health, (any three of whom shall be a quorum,) whose
duty it shall be to enter upon and thoroughly examine such
lots or vacant grounds, and determine by the vote of not less
than three of the said board whether such lots or vacant
grounds shall be drained, filled up, leveled, or otherwise so
improved as to remove the nuisance and evil there complained
of or existing; and, should the said board of inspection be
of opinion that such lots or vacant grounds ought to be
filled up, leveled, or drained, they shall submit a detailed
report to the city council, setting forth the actual
condition thereof, and suggesting the mode, materials, and
extent to which such low lots or vacant grounds shall be
filled up, leveled, or drained; upon which report council
shall take such order and direction thereon as they may deem
expedient. Sec. 228. In case council shall order the report
of said board of inspection, made as aforesaid, to be carried
into effect, or shall direct such low lots to be filled up,
leveled, or drained, it shall be the duty of the city
registrar to serve a notice, in writing, on the owner or
owners of such low lots or vacant grounds, directing said
owner or owners to have such lots or vacant grounds filled
up, leveled, or drained, as council may require, to such
extent, in such manner, with such materials, and within such
reasonable time as may be prescribed by the said order of the
city council; and, in case of neglect or refusal of such
owner or owners to obey said notice, it shall be the duty of
the city registrar to cause such lots or grounds to be filled
up, leveled, or drained in the manner prescribed in the said
notice, under the order and direction of the said board of
inspection. The expenses and charges paid and incurred in
case such lots or grounds shall be filled up, leveled, or
drained, under the order of the board of inspection, shall be
paid, in the first instance, out of the city treasury, and
shall afterwards be recovered, with interest and costs of
suit, in an action of debt, to be brought by council, in the
court of common pleas, against the owner or owners of such
lots or grounds. The city engineer shall, whenever required,
attend the said board of inspection on the examination of low
lots and grounds, and under their direction, make plans for
filling, leveling, and draining the same.' (3) That the
defendant is the owner in fee simple of all that lot, piece,
or parcel of land, with the buildings thereon, situate,
lying, and being on the west side of Smith street, in the
city of Charleston, now or formerly known as 'No. 47'
on said street; measuring and containing ninety-three feet in
front on Smith street, by two hundred feet in depth, be the
same more or less; abutting and bounding north on land of Dr.
John C. Faber, east on Smith street aforesaid, south on land
of W. J. Parker, and west on land formerly of Thomas Bennett.
(4) That the rear portion of the said lot of the said
defendant was a low lot extending out into what was formerly
a part of Bennett's mill pond, and in a condition to
injure and endanger the public health. (5) That the board of
health of the said city of Charleston, as required by the
ordinances hereinbefore recited, appointed a board of
inspection, composed of the city registrar and four members
of the board of health, to enter upon and thoroughly examine
said lot, and determine whether the same should be drained,
filled up, leveled, or otherwise so improved as to remove the
nuisance and evil there existing; that the said board of
inspection inspected the said premises, determined that the
said lot should be filled up to a proper level above the
street, and, pursuant to such determination, the said board
submitted a detailed report thereof to the city council,
setting forth the actual condition thereof, and suggesting
the mode, materials, and extent to which the said lot should
be filled up; that thereupon the said city council, by a
resolution passed at a meeting held January, 1888, ordered
and directed that the findings of the said board of
inspection be carried into effect. (6) That thereupon the
city registrar, on the 28th day of January, 1888, did serve a
notice, in writing, as required by the ordinance aforesaid,
on the said defendant, the owner of the said low lot of land,
requiring her to fill the said lot with sand, gravel, clay,
or shell to a level even with the grade pegs placed by the
city engineer, within sixty days from the date of said
notice, and notifying her (the said defendant) that, if the
said filling was not done within the time specified, the same
would be done by the city council at her expense. (7) That,
the said sixty days having expired, the city registrar did
cause the said lot to be filled up in the manner prescribed
in the said notice, under the order and direction of the said
board of inspection, depositing upon the said lot fifteen
hundred and three (1,503) cubic yards of earth, at an expense
of eleven hundred and fifty-seven and 10-100 ($1,157.10)
dollars, which hath been paid out of the city treasury, and
that no part thereof has been paid by the said defendant. And
the plaintiff alleges that the said sum of $1,157.10 does not
exceed one half the value of defendant's lot of land.
Wherefore plaintiff demands judgment against the said
defendant for the said sum of eleven hundred and fifty-seven
and 10-100 ($1,157.10) dollars, with interest and
costs."
