Lyles v. Fellers

• Decision Date: 15 May 1925
• Docket Number: (No. 11769.)
• Citation: 127 S.E. 841
• Court: South Carolina Supreme Court
• Parties: LYLES. v. FELLERS.

127 S.E. 841

LYLES.

v.FELLERS.

(No. 11769.)

Supreme Court of South Carolina.

May 15, 1925.

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by Mary B. Lyles against Edgar M. Fellers. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

James S. Verner, of Columbia, for appellant.

Weston & Aycock and U. R. Rast, all of Columbia, for respondent.

FRASER, J. The statement in the case is:

"This action for damages for trespass upon the lot of land described in the complaint was commenced by the service of summons and complaint on the defendant on the ——: day of ——, 19—.

"In her complaint the plaintiff alleges: " 'That the plaintiff at the times hereinafter named, and for many years prior thereto, was in quiet and peaceable possession of all that lot of land situate in the city of Columbia, county and state above named, described as follows, to wit: On the east side of Scott's alley, a northern extension of Sumter street, and fronting thereon 92 feet, 6 inches, and running back therefrom in parallel lines to the land formerly of Simeon Fair, said lot being rectangular in shape, and bounded on the north by lot formerly of John Riley, east by land formerly of Simeon Fair, south by land of John Agnew, west by Scott's alley, except the southwest, corner of the said lot of land, which was conveyed by William H. Lyles, this plaintiff's predecessor, to Tobias Derrick, fronting 55 feet, 7 inches on Scott's alley, and extending back therefrom 153 feet, which lot is now owned by W. S. Pope, holding the same as her own.

" 'That on or about the —— day of May, 1923, while the plaintiff was in such quiet and peaceful possession of said lands, the defendant, Edgar M. Fellers, in person and by his servants and agents, willfully and maliciously and without the consent and against the will of the plaintiff entered upon the eastern end of the said lot of land and tore down and removed a portion of a wire fence which this plaintiff had caused to be erected on the lines of her said lot, trod down the grass, and committed divers other trespasses thereon, to her damage $500.'

"By her complaint the plaintiff asked for judgment against the defendant in the sum of $500 and the costs of the action.

"In this answer, after pleading a general denial, the defendant, as a second defense, alleges as follows:

" 'That neither the plaintiff, her grantor, predecessor, nor ancestor has been seized or possessed of the premises described in the complaint within 10 years next preceding the commencement of this action, but this...