Grady v. City of Greenville

• Decision Date: 09 June 1924
• Docket Number: 11524.
• Citation: Grady v. City of Greenville, 129 S.C. 89, 123 S.E. 494 (S.C. 1924)
• Parties: GRADY ET AL. v. CITY OF GREENVILLE ET AL.
• Court: South Carolina Supreme Court

123 S.E. 494

129 S.C. 89

GRADY ET AL. v. CITY OF GREENVILLE ET AL.

No. 11524.

Supreme Court of South Carolina

June 9, 1924

Appeal from Common Pleas Circuit Court of Greenville County; T. J Mauldin, Judge.

Action by Maj. W. G. Grady and others, individually and as taxpayers and ex-Confederate soldiers, against the City of Greenville and the City Council of Greenville.From a judgment granting a permanent injunction, defendants appeal.Reversed, and complaint dismissed.

E. M Blythe and Haynsworth & Haynsworth, all of Greenville, for appellants.

Mauldin & Love and Bonham, Price & Poag, all of Greenville, for respondents.

MARION J.

In the year 1891, the Ladies' Memorial Association of Greenville county presented to the mayor and aldermen of the city of Greenville a petition, showing, in substance, "that after years of patient toil," their "effort to erect a suitable monument to the Confederate dead of Greenville county" was "about to be crowned with success;" that, in the opinion of petitioner, the most appropriate place for the location of the monument was a designated point on Main street in said city, and that they desired to place the monument there, "in the center of the street;" and praying that "permission be granted them to locate this monument at the point indicated," etc.The prayer of the petition was unanimously granted by the city council.Pursuant to that permission, in 1892, the monument was erected in the center of Main street, and unveiled with appropriate public ceremonies.In June, 1922, the city council of the city of Greenville, by resolution duly adopted, ordained "that the city move the monument to a point in front of the county courthouse, provided the property owners on North Main street, between the Ottaray Hotel and the cemetery would deed a strip of land 12 to 15 feet wide, to widen North Main street."In October, 1922, the city commenced the work of taking down the monument for the purpose of re-erecting it at the new location.Thereupon, this suit was brought to restrain the city.An injunction pendente lite was granted by Special Judge C. M. Efird.The cause was thereafter heard by Hon. T. J. Mauldin, Presiding Judge, who granted a permanent injunction.From this decree of Judge Mauldin, the city of Greenville appeals.

The plaintiffs predicate the right to injunctive relief upon the following grounds: (1) That they are ex-Confederate soldiers and taxpayers of the city of Greenville, and of the county of Greenville, who have such an interest, differing in kind from that of the general public, as entitles them to maintain the action; (2) that the city, having permitted the erection of said monument, and having allowed it to stand upon its present site, in the street, for a period of more than 30 years, is now estopped to remove it; (3) that at the time of the erection of the monument by the Ladies' Memorial Association, about 30 years ago "the city of Greenville dedicated and commemorated" the plat of land, about 30 feet square, in the center of North Main street "as a place where said monument should stand," and that the public generally, and especially Confederate soldiers and the children of Confederate soldiers, have acquired an irrevocable right to said land for the purpose of its continued use as a site for the said monument; and (4) that the re-erection of the monument in front of the county courthouse building would be an unauthorized trespass upon the property of the county, would destroy the architectural symmetry of the courthouse building, would interfere with the purpose for which said building was erected, and would depreciate the value of the county's property, to the irreparable damage of the plaintiffs, as taxpayers of Greenville county.The foregoing contentions will be considered in inverse order.

As to the contention that the proposed re-erection will damage county property, to the injury of plaintiffs as county taxpayers, it appears to have been assumed, as a fact, by Special Judge Efird, in granting the preliminary injunction, that the proposed new location of the monument was on county property, "conveyed to the county for the purpose of the erection thereon of a county courthouse."He thereupon concluded, as a matter of law, "that the location of the monument on county property could not be lawfully done" without the permission of the county authorities, acting under express legislative authority.That finding and conclusion were adopted by Judge Mauldin in the decree granting the permanent injunction.Without passing upon the validity of the legal conclusion reached upon the facts assumed, we are clearly of the opinion that the record discloses no such factual showing as entitles the plaintiffs, as taxpayers of Greenville county, to enjoin the re-erection of this monument at "a point in front of the county courthouse," as contemplated by the city council.

Upon the issue of fact as to whether or not the proposed re-erection would be on county property, no such definite proof, either as to the exact location of the new site, or as to the title to and control of the land at this point, was adduced by plaintiffs as would enable the court to determine that issue in the affirmative.It is the contention of the defendant city that "the proposed location was a part of the public streets of the city of Greenville" and that the evidence adduced conclusively so establishes.Plats, introduced in evidence by the defendant city, tend to show that the space in front of the courthouse is held by the municipality, under the original dedication by the owners of the fee, for street purposes.But whether that be so or not, in the state of the present record, it is unnecessary, and would not be proper, to decide.

All that it is necessary for us here to determine is that the plaintiffs have not satisfactorily sustained the burden of proving that the proposed re-erection at "a point in front of the county courthouse" would constitute an unlawful trespass upon county property, to the injury of plaintiffs as county taxpayers.In the absence of such affirmative showing, the plaintiffs, clearly, were not entitled to injunctive relief upon that ground.

May the injunction be sustained upon the legal theory of dedication?Appellants suggest that this point was not passed upon by the circuit court, is not raised by the exceptions, and was not noticed as an additional sustaining ground by the respondents.While not specifically passed upon by the circuit judge, it is definitely alleged in the complaint that there was a dedication by the city, and it does not clearly appear that the circuit judge's conclusion was not predicated--to some extent, at least--upon the validity of that theory.We will not, therefore, decline to consider it.

Dedication is the giving of land or an easement for the use of the public by the owner.9 A. & E. Enc. (2d Ed.) 21.That "a dedication, whenever completed, is irrevocable" is well settled.9 A. & E. Ency. (2d Ed.) 77.Hence:

"If a dedication is made for a specific or defined purpose, neither the Legislature, a municipality, or its successor, nor the general public has any power to use the property for any other purpose than the one designated, whether such use be public or private, and whether the dedication is a common-law or a statutory dedication, and this rule is not affected by the fact that the changed use may be advantageous to the public."18 C.J. 127;McCormac v. Evans,107 S.C. 39, 42, 92 S.E. 19.

Concretely, the contention of plaintiffs is that this particular spot of ground, of approximately 30 feet square, in the center of Main street, was solemnly dedicated by the city to the specific purpose of serving as a site for the monument erected as a perpetual memorial to the heroism of the Confederate dead.

If there was such dedication in the legal sense, it must have been made by one competent to make it.In its effect upon the landowner's rights, there is no essential difference between a dedication and a grant.The law, as to capacity to dedicate, is thus stated in 18 C.J.p. 42:

" There seems to be no valid reason why the same rules which apply to grants should not apply to dedications, so that, as a general rule, it may be said that no dedication can be established as the act of a person incapable of making a grant."

Applying that rule here, no evidence has been adduced tending to establish that the city ever had capacity to grant the land now in question.It does not appear that the city is the owner of the fee in the land upon which Main street is located.Where a state or municipality is the owner in fee of lands, held in a quasi private, or proprietary, capacity there would seem to be no doubt of its capacity to make a dedication, where the objects of the dedication are not inconsistent with the public purposes for which the lands are held.9 A. & E. Enc. (2d Ed.) 32.But in the case at bar, not only is there no evidence that the soil of Main street upon which the monument stands is, or was ever, owned in fee by the city, but it is conceded by plaintiffs that, at the time of the erection of the monument, the land was, and had for many years been, devoted to and used for street purposes.There was evidence in the form of a plat tending to show that the land upon which Main street is situated was dedicated as a street, by the owner of the soil, in the latter part of the eighteenth century.Hence it is the contention of the city that it was precluded from making a dedication of this land, not only by reason of the fact that it did not own the fee which would enable it to dispose of it in perpetuity, but because it held the land in a governmental capacity for the sole purpose of effectuating the specific object for which it had...