Marshall v. Winter

• Decision Date: 30 October 1967
• Docket Number: No. 18719,18719
• Citation: 250 S.C. 308,157 S.E.2d 595
• Court: South Carolina Supreme Court
• Parties: R. W. MARSHALL, Respondent, v. D. M. WINTER, Appellant.

Page 595

157 S.E.2d 595

250 S.C. 308

R. W. MARSHALL, Respondent, v. D. M. WINTER, Appellant.

No. 18719.

Supreme Court of South Carolina.

Oct. 30, 1967.

Lightsey & Bowers, Winter & Winter, Frank L. Taylor, Columbia, Holland Smith, Hampton, I. A. Smoak, Jr., Walterboro, for appellant.

Murdaugh, Eltzroth & Peters, Hampton, for respondent.

LEWIS, Justice:

Defendant has appealed from an order of the lower court denying motions (1) to require plaintiff to make his complaint more definite and certain and (2) to bring in additional parties to the action.

The complaint alleges that plaintiff and defendant own adjoining lands across which a public highway was at one time established; that plaintiff and his predecessors in title have used the said road as a means of ingress and egress to and from plaintiff's lands for a period of more than one hundred (100) years; and that, about February 1965, the defendant erected a gate upon and across the road and has since that time kept the same locked, thereby barring plaintiff, his agents and employees, from access to his lands. This action was brought to require defendant to remove the obstruction placed and maintained by him across the road, and for damages for the alleged wrongful interference with plaintiff's access to his property.

The defendant moved for an order requiring plaintiff to make his complaint more definite and certain by alleging whether the road in question is a public or private road, and by setting forth a clear description of the road which plaintiff claims a right to use. This motion was made upon the ground that such allegations were necessary to enable the defendant to know the nature and extent of the claim asserted by plaintiff.

The right to have the complaint amended by setting forth a description of the road in question was conceded; and the order denying the motion in other respects is not appealable before final judgment since it deprived the defendant of no substantial right. Mason v. S. S. Kresge, 247 S.C. 144, 146 S.E.2d 158.

While the allegations were rather general, the lower court, upon the basis of the pleadings and affidavits filed, construed the complaint, from which no appeal was taken, as alleging 'that at one time the road ran from a public place to a public place, that subsequently a part of the road was abandoned and that plaintiff and his predecessors have continued to use the part of the road now in dispute.' Since no appeal was taken therefrom, such construction of the complaint became binding on the parties.

As construed, the complaint alleges that the road in question was originally established as a public road and that a part of it was abandoned, but that plaintiff and his predecessors in title have acquired an easement in the old road as a means of ingress and egress to and from his abutting property. Such allegations state a cause of action under the principles set forth in Taylor v. Cox, 218 S.C. 488, 63 S.E.2d 470, wherein it is recognized that 'upon the abandonment of a public way, abutting property owners may, under some circumstances, have a private easement in the old road as a means of ingress and egress to and from their abutting lands.'

The complaint, as construed, adequately informed the defendant of the nature of the claim asserted and the failure to require plaintiff to further characterize the road in question as public or private in no way affected any substantial right of the defendant. The appeal from the order of the lower court denying the motion to make more definite and certain is accordingly dismissed.

The order of the lower court failed to require that the complaint be amended, in accordance with plaintiff's...