Earle v. Poat

• Decision Date: 15 April 1902
• Citation: 41 S.E. 525,63 S.C. 439
• Parties: EARLE v. POAT.
• Court: South Carolina Supreme Court

41 S.E. 525

63 S.C. 439

EARLE

v.POAT.

Supreme Court of South Carolina.

April 15, 1902.

HEARSAY EVIDENCE—DIRECTING VERDICT-INSTRUCTIONS—CHARGE ON FACTS —WAY—ADVERSE USE.

1. In an action for damages for defendant's tearing down a fence across an alleyway where title of plaintiff is admitted, the statement by a previous owner of what the grantor said as to the use of the alleyway is inadmissible, as hearsay.

2. Where there was testimony enough to go to the jury as to whether the use of an alleyway was with the owner's consent, or adverse to his right, a verdict is properly denied.

3. Where part of a request to instruct is unsound, the court is justified in refusing the charge as requested.

4. In an action for tearing down a fence across an alleyway, a request to charge that certain acts could not be held as a presumption of dedication of the alleyway to the public was properly refused, as a charge on the facts.

5. Where the public has for 20 years asserted the right to a way for public purposes, it is sufficient to carry with it an adverse use by the public.

Jones. J., dissenting.

Appeal from common pleas circuit court of Richland county; Gage, Judge.

Action by John J. Earle against C. J. Poat. From judgment for defendant, plaintiff appeals. Affirmed.

Wm. H. Lyles, for appellant

R. W. Shand, for appellee.

POPE, J. On the 16th February, 1900, this action was commenced. It is admitted that the title to an alleyway in the city of Columbia is owned by the plaintiff, which alleyway is about 12 feet wide, extending the whole depth of plaintiff's lot, to wit, 267 feet, and that said alleyway runs through from Main street to Sumter street. Defendant, while admitting that the fee to said alleyway for 12 feet in width, and to 267 feet in depth, is in plaintiff in fee simple, contends that he and the public generally have acquired a right to use the same, not by license, but by right; said alleyway having "been so used continuously and adversely for a period of time whereof the memory of man runneth not to the contrary; and has been for many years—certainly for more than 50 years last past—recognized as a public alleyway or street of the city of Columbia, and so used to the knowledge of plaintiff, his predecessors and grantors; that this defendant isthe owner of premises abutting on the said alleyway, on the southern side thereof, and he purchased these premises with said alleyway so open and used, and by reason thereof, without any claim of plaintiff to close the same." The defendant also admits that on the 6th day of February, 1900, he did tear down and remove from said alleyway a fence the plaintiff on the same day had erected across said alleyway. On these issues the cause came on to be tried before his honor Judge Gage and a jury. The verdict was for the defendant. And now the plaintiff, after judgment, appeals to this court. In his grounds of appeal he insists that the circuit judge erred in refusing to admit certain testimony; also erred in refusing to direct a verdict for plaintiff, with nominal costs; also erred in refusing to charge certain requests of the plaintiff; and also erred in charging certain requests of the defendant. We will reproduce the text of these exceptions as follows:

"(1) Because "his honor refused, upon objection of the defendant, to allow the witness F. S. Earle, offered on behalf of the plaintiff, to reply to the question, 'What did Mrs. Heinitsh tell you'?' the same being with reference to her rights in the alley and her purpose in allowing the use thereof by the public.

"(2) Because his honor refused plaintiff's motion to instruct the jury, at the close of the case, to find a verdict for the plaintiff, with nominal damages.

"(3) Because his honor refused plaintiff's first request to charge, —'that a public alley cannot be created without a dedication, express or implied, by the owner of the land over which it passes.'

"(4) Because his honor refused plaintiffs third request to charge, —'that when the owner of land, across which there is an alleyway used by the public, continues to claim the ownership of it by paying taxes on it and conveying It as private property, he cannot be held by presumption to have dedicated it to the public'

"(5) Because his honor refused plaintiff's fifth request to charge, —that 'the right of the public to use an alley cannot be established by adverse user alone in analogy to the statute of limitations, and the jury can presume a dedication to the public only by such user as indicates the purpose of the owner to dedicate it to the public'

"(6) Because, upon request of the defendant, his honor charged the jury as follows, to wit: 'If the public at large, the people of Columbia,, have used this alley to pass from Main street to Sumter street and from Sumter street to Main street, in this city, for any twenty years continuously and uninterruptedly next before the commencement of this action, a grant to the public of such use by the owners of the soil will be presumed;' thereby erring In indicating—First, that mere user by the public would be sufficient to establish the right of the public to use the same and, second, by indicating that the law would absolutely presume a grant to the public.

"(7) Because his honor charged the jury as follows, to wit: 'Twenty years or more of use by the public of a way in the same place continuously gives the public the right to go that way by prescription;' thereby indicating that, even if such user was with the acquiescence of the landowner, and accompanied by his use of the same for his own purposes, that the absolute right of user would be established by prescription.

"(8) Because his honor charged the jury as follows, to wit: 'The issue is whether all of Columbia and all of the public have for twenty years continuously passed and repassed along this way leading from Main street to Sumter street;' thereby indicating that, even if the alley had been left open for the convenience of the plaintiff and those who owned the lot over which the same passes, and the public had been allowed to use the same, merely because their user was not inconsistent with use thereof by the owner and those under whom he claims, without any intention on his or their part to dedicate the same, that such user would settle the issue in favor of the defendant.

"(9) Because his honor charged the jury as follows, to wit: 'I charge you, if you conclude that this is a way leading from Main street back to Sumter street, and if the public has heretofore traveled that unmolested for twenty years continuously in one place leading from one highway to another highway, then I charge you the public has acquired by long user the right to use, —to travel it;' thereby indicating—First, that it was not necessary for defendant to show that user of the alley by the public for twenty years had been adverse in its character; second, further indicating that it was not necessary to show that the user was of such a character as to indicate an acknowledgment on the part of the plaintiff, or those under whom he claims, of the right of the public to use the same; third, thereby indicating that, even if the user was by the acquiescence of the plaintiff and those under whom he claims, because not inconsistent with his or their own private use of the alley, it would still establish the right of the public to use the same."

We will now consider the first exception. When the plaintiff's witness Dr. F. S. Earle was on the stand he was asked the question, "What did Mrs. Heinitsh tell you?" Just preceding this question, Dr. Earle had stated. "When I bought the property, I thought I was buying the alley. I bought the property from Mrs. Heinitsh. I made the agreement with her." Then the question was asked, "What representations were made by her to you as to the ownership of that alley?" This Is the question to which the answer of the witness would have been made, if the objection of defendant had not been sustained by the circuit judge. Considerable latitude has been allowed along this line, both in England and in America, especially where the boundary lines are concerned, as will fully appear by the cases of Sexton v. Hollis, 26 S. C. 235, 236, 1 S. E. 893; Taylor v. Glenn, 29 S. C. 295, 296, 7 S. E. 4S3, 13 Am. St. Rep. 724; and cases cited in each of these cases. But this is no case where boundaries form any part of the issues to be tried. Indeed the title in the plaintiff as to the alleyway is admitted. So, therefore, what Mrs. Heinitsh told Dr. Earle as to the use of the alleyway was clearly incompetent, as "hearsay." In addition to this, Mrs. Heinitsh was examined in this cause as one of plaintiff's witnesses. This exception is overruled.

2. We think, and so hold, that the circuit judge committed no error when, at the close of the whole testimony, he refused to grant the motion of plaintiff, that he (the circuit judge) should direct the jury to render a verdict for the plaintiff, with nominal damages. This is what occurred in that connection: "Mr. Lyles: I am' going to ask your honor to instruct the jury to find for the plaintiff, with nominal damages. We now make that motion, —that your honor instruct the jury to find for the plaintiff, with nominal damages, —upon the ground that it is admitted that we are the owners of the property in question, and the affirmative defense is set up that this has become a public alley. The only proof of it is the proof of user, which is perfectly consistent with the right of owners to use an alley, — their dominion over it. It is shown it was kept open all the time for their convenience, and that mere use of it by the public cannot ripen into the right, no matter how long continued. Not a tittle of evidence here that there has been any recognition of that right by the owners of the property. On the contrary, there is considerable testimony that they had repeatedly asserted their right to close it up by putting a bar or something of the kind across it. ...