Appeal
from Common Pleas Circuit Court of Greenville County; Geo. W
Gage, Judge.
Action
by the city council of Greenville against Thomas T. Earle to
enjoin proceedings to obtain the appointment of an arbitrator
to assess damages for the raising of a sidewalk. From a
judgment for defendant, plaintiff appeals. Affirmed.
POPE
C.J.
On the
31st day of August, 1906, Dr. Thomas T. Earle served a notice
in writing upon the city council of Greenville, S. C., that
he desired an arbitration under the provisions of the charter
of the city of Greenville of his claim against
the said city council amounting to $1,000, for damages caused
to his property by the changing, altering, and raising of
Richardson street, in said city, during the year 1906, and
previous thereto, the said property being two lots of land on
Richardson street, between Buncombe and Coffee streets, in
said city and having a frontage of 105 feet on the west side
of Richardson street, more or less, and that he thereby
demanded the appointment of an arbitrator to represent the
interest of said city in this matter as provided by said
charter. A complaint was filed by the city council of
Greenville on the 11th day of October, 1906, which, after
giving a detailed statement of the city of Greenville's
objection thereto, prayed that the defendant be enjoined from
proceeding to have arbitrators appointed to assess damages to
the property either by notice, mandamus, or otherwise until
plaintiff's liability be established, and for such other
and further relief as to the court may seem proper. Judge
Watts passed an order on the 15th day of October, 1906
wherein he required Dr. Thomas T. Earle to show cause before
him on the 25th day of October, 1906, why he should not be
enjoined from all proceedings to obtain the appointment of an
arbitrator to assess damages on account of the laying of the
sidewalk on Richardson street, in the city of Greenville, and
in the meantime enjoined or restrained any further
proceedings by Dr. Earle in relation thereto. To this
complaint Dr. Earle made his answer, setting up his rights in
the premises, and on the 24th day of October, 1906, Judge
Watts issued his order enjoining Dr. Earle from any
proceedings until the further order of the court, and that it
is further ordered by Judge Watts that it be referred to J.
W. Gray, Esq., master for Greenville county, to take such
testimony as may be offered by the parties in support of the
pleadings, and report the same to this court, with his
conclusions of fact, with leave to report any special matter.
Both sides to the controversy were heard by
witnesses before the master, who made the following report
upon such issues referred to him:
"To
the Court of Common Pleas: The master to whom this case was
referred begs leave to report that he has held reference
and taken the testimony herewith filed." The complaint
in this case sought an injunction to restrain defendant
from prosecuting proceedings begun by him, under section 30
of the charter of the city of Greenville, to have an
assessment of damages alleged to have been done to
defendant's property by the altering of the grade of
the sidewalk on the
south side of Richardson street, in said city, within the
last three years. An order to show cause why an injunction
should not be granted as prayed for was passed by Judge R.
C. Watts on the 15th day of October, 1906, and, the
defendant having made return thereto and filed his answer,
after hearing argument, Judge Watts on the 24th day of
October, 1906, ordered "that the defendant, Thomas T.
Earle, be and he is hereby restrained and enjoined until
the further order of this court from taking any proceedings
to obtain the appointment of commissioners to assess the
alleged damages suffered by him on account of the laying of
the sidewalk on Richardson street, and the changing of the
grade thereof." He further ordered that it be referred
to J. W. Gray, master for Greenville county, to take such
testimony as may be offered by the parties in support of
the pleadings, and report the same to this court, with his
conclusions of fact, with leave to report any special
matter.
"The
issues raised by the pleadings are: (1) Did the plaintiff
alter the grade of the sidewalk in front of defendant's
property and thereby damage the same? (2) If so, is the
defendant estopped by his own acts from claiming such
damages? (3) Statute of limitations. The
plaintiff's liability for damages depends upon whether
it altered the grade of the sidewalk in front of
defendant's property without his consent, and whether
such alteration of grade affected injuriously the value of
said property. Of course, such liability is subject to the
plea of estoppel and the statute of limitations.
"I
find as matters of fact: (1) That the allegations contained
in paragraphs 1, 2, 3, 4, and 6 of the complaint are true.
(2) That the defendant, Thomas T. Earle, is now the owner
of the two houses and lot, situate on the west side of
Richardson street, in the city of Greenville, described in
the complaint, and that he has owned said property since
the fall of 1892. (3) That the defendant petitioned the
plaintiff to have a cement pavement put down in front of
said property and agreed to pay one-third of the cost, but
did not ask for, or consent to, the altering of the grade
of the sidewalk then existing. (4) That the plaintiff
within the last three years had dirt placed on the sidewalk
and a cement pavement put down in front of defendant's
property on Richardson street, and in so doing altered
materially the grade of the sidewalk so much so as to place
the floor of the piazzas of defendant's two houses,
which were previously above the sidewalk, on a level with
or a little below the cement pavement. (5) That the rental
value of said property was impaired by reason of said
alteration in the grade of the sidewalk, and remained so
until the houses on said lot were raised about 18 inches,
and the lot in front filled with earth by defendant, at the
expense of $306. (6) That, to retain the earth used in
filling in the front yard, the erection of sustaining walls
is necessary, and that the lowest estimates furnished the
defendant for the construction of such walls is $80. (7)
That, before said improvements were completed, defendant
suffered a loss of $30 by reason of not having his houses
occupied by tenants. (8) That the defendant paid plaintiff
one-third of the cost of laying the cement pavement, but at
the time of doing so did not know that the grade of the
sidewalk in front of his property had been altered. (9)
That the plaintiff is liable to the defendant in damages
under section 30 of plaintiff's charter of
incorporation. (10) That the testimony shows no act of the
defendant, certainly after the laying of the cement
pavement, to warrant an estoppel. (11) That, the cause of
action having taken place in less than six years before the
commencement of this action, the plaintiff cannot avail
himself of the statute of limitations.
"'Right
to compensation in damages to abutting lot owner for
altering grade of street in Greenville does not depend on
whether the building was erected with reference to a street
grade obtained of city engineer, or whether he had
authority to fix such grades.' Mauldin v.
Greenville, 64 S.C. 445, 42 S.E. 202. 'In city of
Greenville abutting property owners have right to demand
and city is liable to make compensation for damages to the
property by reason of altering the grade of the street. 19
St. at Large, p. 106, amending charter of the city of
Greenville, gives an adjoining lot owner compensation for
damages resulting to his lot from change of grade in
street, and provides a method of obtaining compensation by
commissioners, and the appointment of which by either party
may be compelled by mandamus.' Garraux v. City of
Greenville, 53 S.C. 575, 31 S.E. 597. 'The circuit
court may by mandamus compel city council of Greenville to
appoint a commissioner to assess damages to abutting
property by altering grade of street where defense is that
liability in this case is not conceded, but
is denied, nor has it been adjudged liable heretofore.'
Gibson v. Greenville, 64 S.C. 455, 42 S.E. 206.
The master therefore recommends that the complaint be
dismissed and the injunction dissolved, and that a mandamus
issue compelling the plaintiff to appoint a commissioner as
required in section 30 of the act of incorporation of the
city of Greenville (19 St. at Large, p. 114)."
Upon
the exceptions filed thereto by the city of Greenville the
matter came on to be heard by his honor, Judge Gage, on the
5th day of July, 1907, Judge Gage pronounced the following
decree: "Decree. There are two issues and both of fact
First. Was the...
