Earle v. City of Greenville

• Citation: 65 S.E. 1050,84 S.C. 193
• Parties: EARLE v. CITY OF GREENVILLE.
• Decision Date: 10 November 1909
• Court: United States State Supreme Court of South Carolina

65 S.E. 1050

84 S.C. 193

EARLE v. CITY OF GREENVILLE.

Supreme Court of South Carolina

November 10, 1909

Appeal from Common Pleas Circuit Court of Greenville County; J. W De Vore, Judge.

Action by Thomas T. Earle against the City of Greenville. From a judgment for defendant, plaintiff appeals. Reversed.

See 80 S.C. 321, 60 S.E. 1117.

Wilton H. Earle, for appellant. Wm. G. Sirrine, for respondent.

HYDRICK J.

The charter of the city of Greenville provides that, when an owner of property abutting on a street sustains damages by reason of altering the grade of the street, he may have his damages assessed by commissioners appointed as therein prescribed, and that either party may appeal from such assessment to the court of common pleas, where the issue of value shall be submitted to a jury. The appellant, being the owner of two lots abutting on a street in said city, on which he had built houses, joined other property owners in a petition to the city council to pave the sidewalks on said street, agreeing to pay one-third of the cost. Council granted the petition, and in doing the work changed the grade of the street opposite appellant's property so that his houses, which had previously been above the grade line of the street, were thrown below it. Without knowledge of this alteration of the grade, appellant paid his part of the cost of paving the sidewalk. On discovering the alteration of the grade of the street, conceiving that he had been damaged thereby, he proceeded under the charter of the city to have his damages assessed. The city brought an action to enjoin the proceedings, denying liability, on the grounds: (1) That his property had not been damaged; (2) that he was estopped by reason of having joined in the petition to have the work done; and (3) that the claim was barred by the statute of limitations. On return to a rule to show cause, a temporary restraining order was granted, and the issue referred to the master, who found and reported that he had been damaged, and wherein, and to what extent, that he was not estopped, and that his claim was not barred, and recommended that the temporary injunction be dissolved, and the complaint dismissed. On exceptions the master's report was confirmed, and judgment entered accordingly. On appeal to this court the judgment of the circuit court was affirmed. 80 S.C. 321, 60 S.E. 1117. When the action for injunction was finally ended, the parties by stipulation in writing waived the assessment of damages by commissioners, and agreed to submit the question directly to a jury in the court of common pleas. At the trial the respondent still denied that appellant had sustained any damages, and contended that he was estopped upon the same grounds that had been adjudicated in the action for injunction. Appellant offered to introduce the record in that action as an estoppel against such contention. The presiding judge excluded the record, and submitted to the jury the question whether the plaintiff had sustained any damages at all, and charged them, in substance that, if appellant signed a petition to have certain things done on the sidewalk in front of his...