Coleman v. Chester
| Decision Date | 22 November 1880 |
| Docket Number | CASE 938. |
| Citation | 14 S.C. 286 |
| Parties | COLEMAN v. CHESTER. |
| Court | South Carolina Supreme Court |
1. An agreement for the sale of land may not be proved by parol but an agreement to compensate the owner of land for expenses incurred by him, by reason of the illegal appropriation of his land by a municipal corporation to the uses of widening a street, is not within the statute of frauds.
2. The judgment of a Circuit Court based upon untenable conclusions will not be disturbed, if it can be sustained upon any other grounds.
3. In an action brought against a town, the plaintiff is not prevented by the proviso to section 415 of the code of procedure from testifying as to transactions between himself and a former intendant of the town, acting for the corporation, but at the time of trial deceased.
4. A municipal corporation is not liable to an action for damages for a trespass committed by its officers under the authority of the corporation, unless made so by statute. White v. City Council , 2 Hill 571, recognized and followed, semble .
5. But it may bind itself, by contract, to pay for benefits derived from such acts of trespass, or to compensate the party injured, if he would refrain from prosecuting a remedy given to him by statute.
Before WALLACE J., Chester, October, 1879.
This was an action by J. K. Coleman, against the town of Chester. The complaint was as follows:
1. That the defendant is a body corporate, duly created and organized by and under the laws of said state.
2. That heretofore, to wit, on the eighth day of February, 1873 plaintiff was seized and possessed in fee simple of a certain lot or parcel of land situate in the town of Chester, at the southeast corner of Main and Columbia streets, containing a frontage on said Main street of twenty-three feet, and a depth on Columbia street of two hundred and nineteen feet.
3. That at the date above named, defendant, through its officers and agents, and for the purpose, as it is alleged, of widening said Main street, entered upon and seized and dedicated to the public use the whole of the front of said lot, bounding a distance of twenty-three feet on Main street and to the depth of twelve feet, against the protest and objections of plaintiff, and to his damage $500.
4. That plaintiff, at the time of said seizure, had begun to erect a certain building of brick on his said premises; and in consequence of said seizure of a part thereof was compelled to erect the same on more unfavorable ground, whereby the expense of erecting was greatly increased, and to the amount of $140.
5. That plaintiff, pursuant to the directions and ordinances of said defendant corporation, was also put to the further expense, in consequence of the seizure of his said premises, of making and erecting a new sidewalk or pavement upon the portion of the premises so seized, at a cost of $20.
6. That at the time of said seizure and dedication of plaintiff's said premises, and at divers times afterwards, the defendant, by its corporate authorities, faithfully promised and agreed with plaintiff, in consideration that he would acquiesce in said seizure and dedication to public use of the premises and abandon all further resistance and objection to said seizure and dedication of the same to public use, that defendant would pay to him the full value of said premises so seized, and also the additional expenses incurred by him in the erection of his building and sidewalk; but although plaintiff, relying upon said promises, did acquiesce in the dedication to public use of said premises, the defendant has neglected and refused, and still neglects and refuses, to pay the value of said premises according to its said promises, and plaintiff alleges that said premises so seized and dedicated and his increased expenses of sidewalk and building were reasonably of the value of $660, and that defendant should be required to pay said sum, with interest, by way of damage for its detention.
Wherefore plaintiff demands judgment against said defendant for relief, in that defendant be required to pay to him the value of his said premises and his expenses, pursuant to its promise and undertaking, and costs.
Defendant admitted the first two paragraphs of the complaint, and denied the others.
At the trial it was shown that the acts done towards widening the street, were done under the authority of the town council. Plaintiff being on the stand, proved his damage. He was asked the following questions:
1. Was there any parol agreement or understanding had between yourself and Melton, intendant, respecting compensation for the land taken and occupied by defendant, if you would acquiesce therein?
2. Was there a parol arrangement between you and Melton, intendant, respecting compensation for increased expenses incurred by erecting your building on more unfavorable ground?
Upon objection made, both questions were ruled out, as obnoxious to the statute of frauds, and plaintiff excepted. It was also in evidence that G. W. Melton had said that Coleman and he had settled the matter. G. W. Melton was then the intendant of the town, but died before the trial. The Circuit judge ordered that the complaint be dismissed on the grounds: 1st. That no contract had been proved; and 2d. That the defendant was not liable to an action for damages under the facts proved.
The plaintiff appealed to this court upon the grounds of error in excluding his questions to the plaintiff, and in holding that an action for damages could not be maintained against defendant for the injury done plaintiff.
Mr. W. A. Sanders , for appellant.
Messrs. J. & J. Hemphill , contra.
In this case the defendant, a municipal corporation, supposing itself vested with authority so to do by the act of September 22d, 1868, (14 Stat. 89, re-enacted in Gen. Stat. 352,) proceeded to condemn certain land of the plaintiff for the purpose of widening one of the streets of the town. This proceeding was resisted by the plaintiff until, as he alleges, an agreement was made by George W. Melton, then intendant of the town, to compensate him for the damages done to his property by this appropriation of a portion of it for the purpose above mentioned. This agreement, however, was not in writing, and when the plaintiff proposed to offer parol testimony tending to prove such agreement, it was ruled out as inadmissible under the statute of frauds. To this ruling exception was duly taken, and the first question presented by this appeal is, whether such ruling was correct.
If the purpose of the testimony offered was to prove...
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