Corbin v. Cherokee Realty Co.

• Decision Date: 17 February 1956
• Docket Number: No. 17120,17120
• Citation: 229 S.C. 16,91 S.E.2d 542
• Court: South Carolina Supreme Court
• Parties: W. B. CORBIN, Appellant, v. CHEROKEE REALTY COMPANY and the City of Florence, Respondents.

Page 542

91 S.E.2d 542

229 S.C. 16

W. B. CORBIN, Appellant, v. CHEROKEE REALTY COMPANY and the City of Florence, Respondents.

No. 17120.

Supreme Court of South Carolina.

Feb. 17, 1956.

Arrowsmith & Palles, Florence, for appellant.

Henry E. Davis, Wylie H. Caldwell, Florence, for respondents.

OXNER, Justice.

Appellant, who owns several lots of land bordering on Langston Avenue, a street in a subdivision known as Florenza Heights in the City of Florence, and who claims title to a portion of said street by adverse possession, brought this action to enjoin respondents from entering upon his property 'for the purpose of constructing or opening the said Langston Avenue', and 'from constructing or opening said Langston Avenue in any manner inconsistent' with a plat of said subdivision under which he purchased his lots. Upon the filing of the complaint, the Court issued an injunction pendente lite. After issues were joined, the action was referred to the Master for Florence County for the sole purpose of taking the testimony. Upon the testimony so taken, the case was heard by the presiding Judge who later issued an order refusing an injunction and dismissing the action.

The plat of Florenza Heights dated June 21, 1927 and recorded on September 16, 1927, shows Langston Avenue, designated on the plat as Langston Place, as having a width of 120 feet. The plat shows symbols and markings on each side and in the middle of this street, which the surveyor testified were made to indicate an area for the planting of shrubbery on each side and trees in the middle. Shortly after said plat was made in 1927, appellant purchased from Florenza Company, which owned said subdivision, a lot at the intersection of Beverly Avenue and Langston Avenue, fronting 75 feet on the western side of Beverly Avenue, with the northern side line of said lot extending 136 feet along the southern side of Langston Avenue. The conveyance was made with reference to the plat mentioned. Subsequently appellant purchased seven or eight other lots in this subdivision. The house in which he lives is located on two lots fronting on Beverly Avenue which are adjacent to the lot purchased in 1927. Appellant testified that when he purchased this property in 1927 the developer represented that 'the street was to be 70 feet wide with a row of trees in the middle and 25 foot sidewalks on each side of the street, making a 120 foot wide street, including the sidewalks.' He further testified that shortly thereafter, with the permission of the owner of said subdivision, he planted pecan trees and a rose garden in an area on the southern side of Langston Avenue which had been set apart for shrubbery and a sidewalk. He says that these pecan trees are now very valuable in that they bear considerable fruit and provide abundant shade. It further appears that Langston Avenue has never been opened by the City or used by the general public and, in fact, has been used only to a limited extent by one or two residents in that area. There are no houses in said subdivision fronting on said street.

The surveyor who made the 1927 plat testified that several months later the developer decided to reduce the width of Langston Avenue from 120 to 60 feet and that the original plat was revised accordingly but the change was not recorded. In 1929 this same surveyor made a plat of an adjacent subdivision which also included the area embraced within Florenza Heights. This plat, which was recorded on October 18, 1929, shows Langston Avenue as having a width of only 60 feet. It seems to be undisputed, however, that appellant was never consulted or advised of any change in the width of Langston Avenue until shortly before this action was commenced.

In 1952 the City of Florence brought three condemnation proceedings against certain persons owning lots on Langston Avenue. However, appellant was not made a party to these proceedings. In the petition it was alleged that the City 'owns as trustee for the public a street which has been heretofore duly laid out, dedicated and accepted, known as Langston Avenue'; that said street 'has been closed by the condemnees'; that it was the intention of the City to open said street; and 'that to this end said City requires a permanent right of way and easement, in, over, upon and across any portions of the aforesaid lots owned by the condemnees that may be necessary to open and maintain said Langston Avenue for its full dedicated width.' The Court was asked to require the clerk to empanel a jury 'to ascertain the amount which shall be paid to the condemnees as just compensation for the right of way required in case it be found that it is not already owned to the full extent by the City.' The landowners defaulted. A jury duly empanelled on August 4, 1952, found the following verdict:

'We find that the City of Florence has established title to a street fifty feet wide in Langston Avenue measured from the south side thereof and extending from Edisto Drive to the Rainwater property as shown in the plat made by A. L. Ervin and introduced in evidence as Exhibit D.

'We make no findings respecting any contentions between the City of Florence and E. M. Allen, Jr. respecting the ownership of any property lying north of the fifty foot strip of street above described.

'We find that no property of condemnees is being taken and that they are entitled to no compensation.'

There was no appeal from the foregoing verdict and on August 25, 1952, the Court issued an order confirming the verdict of the jury and making same the judgment of the Court. It was further ordere, 'that the City of Florence be, and it is hereby, authorized and directed forthwith to open and maintain said Langston Avenue from the property of Rainwater to Edisto Drive for the full width of fifty (50) feet as found by the jury, without prejudice as to any rights the City may have with respect to any property lying north of said fifty foot strip of street.' (Italics ours.)

Thereafter on motion of the City, in an order dated February 14, 1953, the Court amended the order of August 25, 1952 by deleting the words 'and directed forthwith'. It was stated that these words were inadvertently included and had no proper place in the order.

There was no appeal from the foregoing orders.

In January, 1953, respondent Cherokee Realty Company, which apparently had acquired from the Florenza Company the unsold lots in said subdivision, instituted an action against the City of Florence wherein, after reciting the condemnation proceedings and alleging the refusal of the City Council to open Langston Avenue, the Court was asked to issue a writ of mandamus compelling the City to forthwith open and maintain said street. An answer was duly filed by the City in which it was claimed that the question of opening said street was a matter within the discretion of the municipal authorities. The City further set up an ordinance enacted on July 1, 1953, providing that no new street should be accepted by the City unless the owner of the subdivision installed adequate drain pipes, properly graded said proposed street, and placed same in good condition for public use. This action resulted in an order dated September 29, 1953, wherein the City of Florence was 'required at its own expense forthwith to open to its full width and hereafter to maintain as one of the public streets of the city' the section of Langston Avenue in controversy. There was no appeal from this order.

The instant action was commenced on November 6, 1953. Appellant alleged that the lots purchased by him in 1927 were conveyed in accordance with the plat showing Langston Avenue as having a width of 120 feet with a sidewalk on each side, and that the contemplated street of only 50 feet in width was wholly different from the plan of the plat and would necessitate the removal of the trees which he had planted in the sidewalk area. He further claimed title by adverse possession to a strip approximately 22 feet wide on the southern side of said street where he had planted the pecan trees and rose garden. The City of Florence filed a formal answer submitting the matter to the discretion of the Court, stating that it was willing to abide by any order made by the Court with reference to opening said street. In its answer respondent Cherokee Realty Company denied that appellant could acquire any portion of the street by adverse possession and asserted that he was bound by the orders and judgments of the Court made in the previous litigation. As already stated, the trial Judge held that appellant was not entitled to the relief sought and dismissed the complaint.

There are numerous exceptions but the questions presented are summarized in appellant's brief as follows:

'In general terms, plaintiff takes the position that since he purchased his lots under a specific plat * * *, he is entitled to have the street and sidewalk area maintained as such and in accordance with the plan set forth on that plat. That he has been at liberty to hold the proposed sidewalk area adversely since there is no evidence of an acceptance of the proposed dedication of the street and sidewalk area. On the other hand, if a completed dedication does exist, then the property so dedicated must be used for the purpose for which it was dedicated and in...