Diseker v. Eau Claire Land & Imp. Co.

Decision Date13 July 1910
Citation68 S.E. 529,86 S.C. 281
PartiesDISEKER v. EAU CLAIRE LAND & IMPROVEMENT CO.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Richland County; J. C Klugh, Judge.

Action by James H. Diseker, Jr., against the Eau Claire Land & Improvement Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Frank G. Tompkins, for appellant. Lyles & Lyles, for respondent.

GARY A. J.

This is an action for breach of the covenants of warranty in two deeds, executed on the 5th of April, 1905, and the 9th of September, 1905, whereby the defendant conveyed to the plaintiff certain lots of land described in the complaint.

The plaintiff alleged that the defendant, committed a breach of the covenants of warranty by selling to him the said lands after they had been dedicated by the former owners to the use of the citizens of the town of Eau Claire, for the purpose of establishing a park or public place, and that the lots, at the time of said sales, were burdened by this outstanding incumbrance in the nature of an easement, in favor of said town and the public in general.

At the close of the plaintiff's testimony, the defendant made a motion for a nonsuit on the following grounds: "1. That there has been no eviction or disturbance of the possession of the plaintiff, of the property in question--no actual eviction or disturbance of the property. 2. That by the decree of the circuit court, and the Supreme Court's decision of the case of Marshall v. Eau Claire Electric Railway Company it is not adjudged, so as to bind the defendant here, that the square in question had been dedicated to the town of Eau Claire, or to the public of any community. 3. That there is no evidence in this case whatever of a dedication and acceptance by the public, which would show even any shadow of doubt of the title of the plaintiff to these lots in question. 4. It appears from the testimony that only a part of the lots of Diseker is affected by the doubt, even if any such exists." His honor, the presiding judge, overruled the first and fourth grounds, but sustained the second and third.

The first question that will be considered is whether there was error in sustaining the second and third grounds of the motion. It must be remembered that the rights of the plaintiff in the case of Marshall v. St. Ry. Co., 73 S.C. 241, 53 S.E. 417, are not involved in this action. In that case it was decreed by his honor, the circuit judge "that the defendant company be, and they are hereby restrained from conveying any portion of said 'circle' to any person whomsoever." And in affirming said decree, the Supreme Court said: "Even if the map was not accepted or adopted by the defendant company and even if the 'circle' was not dedicated, so as to confer rights that could be enforced by the public, nevertheless, if the company represented to the plaintiff that the 'circle' would be kept open, and thereby induced the plaintiff to purchase her lots, such representation would be binding upon the defendants," thus showing that the defendant had created an incumbrance on the...

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2 cases
  • Boozer v. Gunter
    • United States
    • South Carolina Supreme Court
    • December 18, 1923
    ...199; Latimer v. Wharton, 41 S.C. 508, 19 S.E. 855, 44 Am. St. Rep. 739; Nathans v. Steinmeyer, 57 S.C. 386, 35 S.E. 733; Diseker v. Eau Claire, 86 S.C. 281, 68 S.E. 529; Godfrey v. Lumber Co., 88 S.C. 132, 70 S.E. Moore v. Beard, 91 S.C. 496, 74 S.E. 1062. A very different situation is pres......
  • Cason v. Gibson
    • United States
    • South Carolina Supreme Court
    • September 6, 1950
    ... ...        Minnie P. Cochran ... owned a tract of land which was near but is now, since 1947, ... within the limits of the City ... [61 S.E.2d 60] ... laying out the town of Eau Claire. At and including the ... intersection of two principal streets about ... Diseker v ... Eau Claire Land & Improvement Co., 86 S.C. 281, 68 S.E ... 529 ... ...

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