Crocker v. Collins

• Decision Date: 01 October 1892
• Citation: 15 S.E. 951,37 S.C. 327
• Parties: CROCKER v. COLLINS et al.
• Court: South Carolina Supreme Court

15 S.E. 951

37 S.C. 327

CROCKER v. COLLINS et al.

Supreme Court of South Carolina

October 1, 1892

Appeal from common pleas circuit court of Beaufort county; J. J NORTON, Judge.

Action by Daniel W. Crocker against Joseph W. Collins, as intendant and N. Christensen and others, as wardens, constituting the town council of Beaufort. Judgment for plaintiff. Defendants appeal. Reversed.

W. J Verdier, for appellants.

Elliott & Townsend, for respondent.

MCIVER C.J.

This action was brought for the purpose of enjoining the defendants from entering upon certain premises in the town of Beaufort, claimed by the plaintiff, and from pulling down, destroying, or otherwise injuring the buildings standing on said premises. By consent the testimony was taken by a special master, and reported to the court, and the case came on for hearing before his honor, Judge NORTON. After the pleadings were read, the defendants interposed an oral demurrer, upon the ground that the facts stated in the complaint were not sufficient to constitute a cause of action. The demurrer was overruled, and the defendants excepted, giving oral notice of appeal. Thereupon the circuit judge stated that defendants were entitled to a stay, but the defendants, waiving this right, consented to proceed, and the case was heard upon the merits. Subsequently the judge rendered his decree granting a perpetual injunction, as prayed for, and defendants appealed, as well from the order overruling their demurrer, as from the final judgment granting the injunction.

To determine the question as to the demurrer it will be necessary to consider the allegations of the complaint, which are substantially as follows: "The plaintiff, complaining of the defendants above named, a municipal corporation created by the laws of this state, alleges: (1) That on the 1st day of January, 1880, and for many years prior thereto, Martha A. Barnwell was seised and possessed of ' all that certain lot or lots of land situate in the town of Beaufort,' etc., 'and continued in adverse, quiet, and peaceable possession of the same' until the 4th of August, 1890, when she sold and conveyed the said premises to the plaintiff, who has been ever since seised and possessed of the same; (2) that plaintiff and his grantors have been in adverse possession of said premises prior to and ever since the year 1867, the same having been inclosed by a fence during all that time, and that during all that time no street or alley way has been used or opened through said premises; (3) that on the 1st of October, A. D. 1890, the defendant Collins was intendant, and the defendant Christensen and others, naming them, were wardens, and as such the said intendant and wardens constituted and still are the 'town council of Beaufort;' (4) that on the 18th of October, 1890, the plaintiff was erecting a dwelling house and other structures upon said premises, which work and the materials used cost him one hundred and fifty dollars; (5) that on or about the 18th of October, 1890, John Green was marshal of the town of Beaufort, the agent and employe of the defendants, and as such did on that day, at the direction and in accordance with the instructions given to him by the defendants, enter upon said premises, and ordered the workmen employed by plaintiff in erecting said building to discontinue their work, and threatened to arrest them if they should proceed; (6) that on the 28th of October, 1890, the said Collins, as intendant, informed plaintiff that he objected to the erection of said buildings, because he claimed the same to be on an alley, which was the property of the town of Beaufort, and threatened to enter upon said premises and pull down and remove said buildings, under and by virtue of the powers conferred upon the defendants in relation to streets; (7) that, if said threats are carried out, the damage to plaintiff will be irreparable; that a number of suits would be necessary to recover damages sustained by him. Wherefore an injunction is demanded, restraining defendants from pulling down and removing said buildings, and from committing any other trespass upon the said premises."

The first ground upon which the demurrer was rested is that it does not state the name of the municipal corporation of which the defendants are alleged to be officers. We do not think there is anything in this purely technical objection. Neely v. Yorkville, 10 S.C. 141. If there was any error in fact in stating the correct name of the municipal corporation, such error would not constitute any ground for demurrer, but should be corrected by some other mode of proceeding.

The next ground upon which the demurrer is rested seems to be that there is no sufficient allegation that the acts complained of were done or threatened by any officer of the municipal corporation. We do not think this ground can be sustained, for it seems to us that the allegations contained in the complaint, if true, are sufficient to show that the acts complained of were done by the executive officer of the town council, under the authority of that body; and, if there is any want of particularity or distinctness in the statements found in the complaint, that should be remedied by a motion to make the allegations more definite and distinct, and not by a demurrer.

The next ground relied upon to sustain the demurrer is that the plaintiff's claim of title rests only upon adverse possession, and this...