Marshall v. Columbia & E.C. Electric St. Ry. Co.

Decision Date17 February 1906
Citation53 S.E. 417,73 S.C. 241
PartiesMARSHALL v. COLUMBIA & E. C. ELECTRIC ST. RY. CO. et al.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Richland County; Gary Judge.

Action by Julia C. Marshall against the Columbia & Eau Claire Electric Street Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The circuit decree is as follows:

"This case was heard by me at the summer term of common pleas for Richland county in 1905, on the pleadings and on evidence taken by the master for Richland county under an order for that purpose, and, after hearing argument of counsel, I find the following facts:
That during the year 1897 the defendant the Columbia & Eau Claire Electric Street Railway Company, being the owner of a tract of land containing about 191 acres near the city of Columbia, had a plat thereof made for the purpose of laying out a town to be known as Eau Claire, as shown and delineated by the plat in evidence as Exhibit A, made by Niernsee & La Motte, civil engineers. That on said plat of said Niernsee & La Motte, civil engineers, there was a 'Circle' bounded as follows: north by lands of Columbia & Eau Claire Electric Street Railway Company, and lands hereinafter described of Mrs. Julia C. Marshall and Columbia & Eau Claire Electric Street Railway Company and N P. Booker, south by lands of A. G. La Motte and Columbia & Eau Claire Electric Street Railway Company and Mrs. Agnes W Tompkins, and west by lands of Columbia & Eau Claire Electric Street Railway Company; the same being a part of and lying around the intersection of Fifth avenue and Second streets on said map, in the said town of Eau Claire, in the said county and state. That on the 30th day of December 1897, the plaintiff herein, Mrs. Julia C. Marshall, purchased from the defendant the Columbia & Eau Claire Electric Street Railway Company, the three parcels of land described in the complaint, situate in what is known as the town of Eau Claire, in the said county and state, and received from the said defendant the Columbia & Eau Claire Electric Street Railway Company a deed to the said premises, a copy of which is set out in the complaint herein. The following is a description of the lots so sold and conveyed by the said defendant the Columbia & Eau Claire Electric Street Railway Company to the said Mrs. Marshall: (1) All that lot of land containing two 25-100 acres, more or less, situate in the county of Richland and state of South Carolina, and being a subdivision of the said company's tract of land, containing one hundred and ninty-one (191) acres, lying about two miles from Columbia, on the west side of the Winnsboro road, and being bounded as follows: north by Sixth avenue, measuring along same two hundred and eighty-nine feet and six inches (289'6"') from the corner of the intersection of Second street and Sixth avenue; east by lots of J. B. Duke and G. W. Floyd, measuring thereon four hundred and fifty-five feet (455'); south by Fifth avenue, measuring thereon fifty-eight feet six inches (58'6"') to the corner of Fifth avenue and the 'Circle'; west by the east line of the 'Circle,' measuring thereon one hundred and eighty-eight feet and eight inches (188'8"'), and west by Second street, measuring thereon three hundred and forty-five feet (345'). (2) All that lot of land containing three acres, being a subdivision of the said company's tract of one hundred and ninety-one (191) acres, lying about two miles from Columbia, on the west side of the Winnsboro road, and being bounded as follows: north by land of the said company and the 'Circle'; east by Second street; south by Fourth avenue, and west by Third street, being a rectangular parallelogram in shape, measuring on its north and south sides each five hundred feet (500') and on its east and west sides each two hundred and fifty-one feet (251'). The streets, avenues, and circle referred to in the two foregoing descriptions are delineated on the said plat of said company's said tract of 191 acres, made by Niernsee & La Motte, civil engineers.
That the said plat, Exhibit A, at the time of the said purchase of the said Mrs. Julia C. Marshall from said company, was exhibited on the premises so sold to Mrs. Julia C. Marshall by Mr. F. H. Hyatt, president of the said company, who had control and management and the negotiations of the sales of said lots, and he assured the said plaintiff that the said 'Circle,' upon which her said lots bounded, was dedicated by said company for public uses and would be kept open, and the said plaintiff, Mrs. Julia C. Marshall, purchased the said lots with the understanding and agreement after she had seen said plat that the said 'Circle' would be kept open and remain as designated and delineated in the said plat for public uses, for the purpose of said town, and was one of the inducements which led her to buy said lots adjoining the said 'Circle.' And thereafter the defendant the Columbia & Eau Clair Electric Street Railway Company changed the said 'Circle' and divided the same into lots, and offered them for sale, according to a map exhibited and made by A. G. La Motte, civil engineer, and at said sale the defendants, Wylie Jones, J. C. Brown, L. A. Riser, J. McManus, J. N. Cantey, W. P. Bookter, and J. L. Toney, were purchasers. These said purchasers had actual personal notice of the claim of Mrs. Julia C. Marshall, the plaintiff, that the said 'Circle' had been dedicated to public uses by the said company, and of the rights of the plaintiff, Mrs. Julia C. Marshall, in said 'Circle' as an easement incident to her lots and of her rights therein.
I find that the defendant the Columbia & Eau Claire Electric Street Railway Company having dedicated the said 'Circle' to the said uses of the said town, and the said Mrs. Marshall having bought in reference thereto, she has an easement in and over the said 'Circle,' and the said company had no right to divide the said circle into lots and offer them for sale, and the other defendants to this action, having notice of this, bought it with full knowledge of this right easement, and can take no title to said lots purchased by them. It is therefore ordered that the Columbia & Eau Claire Electric Street Railway Company and all persons claiming under, by, or through said company, be, and the same are hereby, perpetually restrained from hereafter interfering with in any way the right of the said Mrs. Julia C. Marshall, and of all persons claiming under her, or entering upon and having full access to or egress from the said 'Circle,' so dedicated by the said Columbia & Eau Claire Electric Street Railway Company for the said use of the said town; and it is further ordered that the said plat be filed in this case and the clerk
of this court do record the same in the plat book in his office; and it is further ordered that the defendant company be, and they are hereby, restrained from conveying any portion of said 'Circle' to any persons whomsoever; and it is further ordered that the defendants Columbia & Eau Claire Electric Street Railway Company pay all the costs of this action and the costs of recording the plat herein."

The defendants appeal on the following exceptions:

"(1) Because his honor did not rule upon and sustain objections made by the defendants to the evidence of the witness A. G. La Motte, as follows: 'Q. Can you give the conversation that passed between them? Mr. Robinson: I object to any conversation between Mr. Hyatt and Mrs. Tompkins or any person other than Mrs. Marshall, same not with reference to the issue, and hearsay. Witness: I was present at Mr. Hyatt's office by request at a conversation between Mr. Hyatt and Mr. and Mrs. Tompkins, and probably one or two others. If I remember, there were one or two others in the office--possibly several others at the time. Mr. Tompkins: Well, now just state was Mrs. Marshall present? Witness: I do not think that Mrs. Marshall was present. She might have been, but I do not remember. Q. Well tell the conversation. A. What occurred? Q. Yes. Mr. Robinson: Objected to as above. Witness: At that time the question of the ""Circle," or doing away with the "Circle," was brought up and discussed, and at Mr. Hyatt's request I expressed myself about it, advising them as their engineer about it, and discussed it with them fully, and after going over the matter, Mr. Hyatt said the "Circle" could stand as it was. Q. Stand as it was? A. Yes, sir'--because the said evidence was irrelevant and incompetent to this case, and the statements and declarations therein referred to were not to or with the plaintiff, and were not made at the time or before the purchase by her of the lots described in the complaint, but, on the contrary, the evidence of plaintiff's witnesses L. S. Tompkins, as also of the witness Agnes W. Tompkins, show that the representations were made after the purchase and conveyance of the lots mentioned in the complaint, and at the time the witness Agnes W. Tompkins was beginning the erection of a building thereon.
(2) That his honor erred in not ruling and sustaining the objection of the defendants to the testimony of the witness L. S. Tompkins as to the conversation between him, his wife, and Mr. F. H. Hyatt, as follows: 'Q. Well, what did he tell you with reference to this "Circle" and the streets and avenues laid out on that map? Mr. Robinson: Objected to on the ground that it is parol evidence and the contract was afterwards reduced to writing, and that he had no authority to
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