Crosland v. Rogers

• Decision Date: 21 February 1890
• Parties: Crosland v. Rogers.
• Court: South Carolina Supreme Court

10 S.E. 874

(32 S.c. 130)

Crosland

v.Rogers.

Supreme Court of South Carolina.

Feb. 21, 1890.

Easements—Implied Reservation—Prescription.

1. Plaintiff sold a portion of his land, but failed to reserve the right to use a ditch which ran through it, and which was used to drain the portion unsold. Held, that a claim to an easement in the use of the ditch by implied reservation is not sufficiently supported, where there is no evidence that the necessity for the ditch is imperious and continuous, nor any facts stated which show that there is no other way in which the water at that point might find vent.

2. A claim by prescription to an easement in the use of a ditch is not supported by proof that it has been used only by those who owned the whole premises through which the ditch runs before a conveyance of any portion, as such use is not adverse to a grantee of such portion.

Appeal from common pleas circuit court of Marlboro county; Wallace, Judge.

Townsend & McLaurin, for appellant. Knox Livingston, for respondent.

Simpson, C. J. This is a contest over an easement claimed by the plaintiff (appellant) and denied by the defendant, (respondent.) The facts are as follows: One Daniel M. Crosland owned certain lands situate in Marlboro county, up to 1844 or 1846, when said lands were conveyed to Dr. William Crosland, who held until 1806, when in a partition of his estate said lands were allotted to the plaintiff, who held until 1875, when he conveyed to one Frost Crosland a portion of said land, to-wit, the portion now held by the defendant Rogers, etc It is alleged that during all this time a certain ditch, commencing at a certain point on the premises, and running into another ditch, was used imme-morially to vent the water at that point from the lands into a creek near by; and that when the portion mentioned above as being sold to Frost Crosland, and which went into the possession of defendant Rogers in 1875, was sold, a part of this ditch was on said portion. Rogers obstructed this ditch, and the action below was brought, alleging a nuisance and praying its abatement and damages of $100. The complaint alleges two causes of action: First, that the ditch in question was used to vent the waters off plaintiff's land, being the natural course for the water to be carried away; and, second, that the plaintiff, and those under whom he claimed, had immemorially used the ditch for the purpose above. At the trial, upon the close of the plaintiff's testimony, his honor, Judge Wallace, who heard the case, ordered a nonsuit on motion of defendant's attorney, and the appeal brings up the question of the correctness of this order. The argument of counsel on both sides here was directed principally to the doctrine of easements, and whether the case should have gone to the jury on that matter, upon the evidence introduced. It is well settled in reference to nonsuits that the court may order a nonsuit in any case where there is an absence of all testimony, as to any or as to all contested issues or facts material to the cause. In fact, in such case, it is the duty of the trial judge to order a nonsuit on motion thereto made. Now, what was the issue here? It was whether the plaintiff was entitled to an easement in the ditch over the lands of the defendant, and whether this ease ment had been obstructed. This brings up the question principally, primarily, what facts will constitute an easement, or, rather, upon what facts will an easement come into existence? and, secondly, whether there was any testimony relevant to this point. As to an easement of the character claimed here, it will be sufficient for us to say that such an easement may come into existence in one of three ways, to-wit: Either by express grant; by adverse use for 20 years, which is...