Haselden v. Schein

• Decision Date: 21 November 1932
• Docket Number: 13519.
• Citation: 166 S.E. 634,167 S.C. 534
• Parties: HASELDEN v. SCHEIN.
• Court: South Carolina Supreme Court

166 S.E. 634

167 S.C. 534

HASELDEN v. SCHEIN.

No. 13519.

Supreme Court of South Carolina

November 21, 1932

Appeal from Common Pleas Circuit Court of Beaufort County; J. Henry Johnson, Judge.

Suit by M. V. Haselden against Annie Schein. From a decree for plaintiff, defendant appeals.

Affirmed.

Nathans & Sinkler, of Charleston, for appellant.

George W. Beckett, of Beaufort, for respondent.

BONHAM J.

Plaintiff the respondent, seeks by this action to enjoin the defendant from obstructing an easement which plaintiff claims over an alleyway, on the property of the defendant, in the city of Beaufort, S. C., and seeks to recover the sum of $1,000 damages for alleged obstruction thereof.

The defendant, the appellant here, for answer denies the existence of such easement, and alleges that plaintiff is estopped to set up a claim to such easement by reason of the estoppel which had existed against plaintiff's grantor.

The matter was heard by Judge J. Henry Johnson at chambers, by consent of counsel, upon an agreed statement of facts. He filed his decree adjudging and ordering that plaintiff have an injunction against the defendant against any interference with the use of said right of way which might impair or defeat the easement, and "that she be and is hereby required to move the fence back to the line of the eastern side of the building formerly known as the Palace Market." From this decree the appeal comes to this court.

From the "Agreed Statement of Facts," set out in the transcript of record, we condense this shorter, but sufficient, statement The property on both sides of and including the disputed right of way was owned in fee by J. R. Bellamy and L. H Little, Sr.; they sold to Chris Culuris a lot fronting on Bay street, in the city of Beaufort, S. C., with certain defined boundaries, and by the same deed of conveyance covenanted "that a private right of way ingress and egress four (4) feet wide and extending from Bay Street on the South to Port Republic Street on the North shall be maintained as appurtenant to the land hereby conveyed; but the same shall not be or become (evidently something left out here in recording) retain the right to maintain gates or doors in and upon the same, and to keep the same free and clear of any and all obstacles to its use as a way for the use of the occupants of the property on both sides thereof said way to be adjacent to and west of the premises above granted and described; but nothing herein contained shall be construed to prevent the grantor herein from building over the same so long as it is open and unobstructed and ten feet high." This deed was dated April 23, 1921.

At the time of this conveyance, the property upon which this servitude was imposed was owned by the same grantors, J. R. Bellamy and L. H. Little, Sr. Subsequently, to wit, November 23, 1921, L. H. Little, Sr., conveyed to J. R. Bellamy "all his right, title and interest in and to the balance of the property, measuring thirty feet nine inches (30' 9"'), being the above premises conveyed to Bellamy and Little by Epstin, less the premises heretofore conveyed to Chris Culuris." May 22, 1924, Bellamy conveyed this last-mentioned property to Beaufort Bank.

Bellamy and Little foreclosed the purchase-money mortgage given to them by Culuris, and at the sale it was bid off by J. R. Bellamy, to whom deed was made June 4, 1925.

J. R. Bellamy became insolvent and Hal R. Pollitzer was appointed receiver of his estate. By deed dated February 21, 1927, Pollitzer conveyed to M. V. Haselden, plaintiff, the property conveyed to Culuris by Bellamy and Little. This deed makes no mention of the easement appurtenant thereto.

November 10, 1927, W. J. Thomas, as receiver of Beaufort Bank, conveyed to Annie Schein the property conveyed to Beaufort Bank by J. R. Bellamy. This deed makes no reference to the easement.

The appeal assails the decree of the circuit court upon the grounds stated in seven exceptions, which appellant's counsel, in his brief, elects to treat under three heads, which method of treatment we adopt. They are:

(1) Does estoppel operate to defeat a claim of easement, or is it necessary for a merger of the dominant and servient estates to be had before the right of dominant estate in such easement can be barred?

(2) Was the easement so limited that it did not include the right of user by patrons of a picture house on the rear of the lot, the interference with such user being the basis of plaintiff's claim for injunction?

(3) Do the pleadings and facts as agreed on entitle plaintiff to relief by injunction, or is his remedy by an action at law for damages?

Appellant's contention under the first head is that the circuit judge erred in holding that there was no merger of the dominant and servient estates in Bellamy, but that, if there was no merger, nevertheless plaintiff is estopped to claim the easement because his predecessor in title, Bellamy, was estopped to claim it for the reason that Bellamy had conveyed the servient tenement to Beaufort Bank without stating in the deed that it was subject to this easement, and the bank had conveyed it to the defendant without making any mention of the easement. Hence, if Bellamy was estopped, the plaintiff, as his successor in title of the dominant estate, is estopped.

Was there a merger? Or, more strictly speaking, was there an extinguishment of the easement?

The contention of the appellant is that it was extinguished (1) by the uniting in Bellamy of the title in fee to the dominant and servient estates; or (2) by the conveyance of the servient tenement to Annie Schein without notice of the easement.

Was the title to the dominant and servient estates ever vested in Bellamy at one and the same time? When the easement came into existence, the dominant and servient estates were owned by Bellamy and Little. Their deed of conveyance to Culuris imposed upon their own land an easement in favor of the land conveyed to Culuris. The Culuris property became the dominant estate. Thereupon Bellamy bought the interest of Little in the servient estate. This he conveyed to Beaufort Bank, which in turn conveyed it to Annie Schein. When he reacquired the title to the property which he and Little had sold to Culuris, the title to the servient estate was in the bank. It never was in Bellamy at the same...