McCormac v. Evans

• Decision Date: 26 March 1917
• Docket Number: 9655.
• Citation: McCormac v. Evans, 107 S.C. 39, 92 S.E. 19 (S.C. 1917)
• Parties: MCCORMAC ET AL. v. EVANS ET AL.
• Court: South Carolina Supreme Court

92 S.E. 19

107 S.C. 39

MCCORMAC ET AL. v. EVANS ET AL.

No. 9655.

Supreme Court of South Carolina

March 26, 1917

Appeal from Common Pleas Circuit Court of Dillon County; S.W. G Shipp, Judge.

Suit by E. A. McCormac and another against W. W. Evans and others.Judgment for defendants, and plaintiffs appeal .Reversed.

Gary C.J., and Fraser, J., dissenting.

P. B Sellers and Townsend, Rogers & McLaurin, all of Dillon, and J. W. Johnson, of Marion, for appellants.

Gibson & Muller, of Dillon, for respondents.

HYDRICK, J.

The facts are fully stated in the opinion of the circuit court.It appears that, by consent of all parties interested, the old church building, which is the subject of this action, was substituted for the schoolhouse that was built on the church grounds under an agreement with the church authorities that it should be used as a schoolhouse as long as any of the subscribers to the building fund desired a school kept there.Therefore the rights of the parties must be determined as if the building in question were the schoolhouse built under that agreement.

The dedication of the building to public use was limited to the special purpose mentioned at that particular place.It follows that so long as it was used for that purpose at that place, none of the subscribers had any right to complain, because the use was strictly within the limits of the dedication.That being so, no length of such use would raise a presumption of a more general dedication, or constitute a waiver of the right of the subscribers to restrict the use within the limits of the dedication.Therefore the court below erred in presuming from the use for more than 20 years within the limits of the dedication a general dedication to the use of the public schools of that district, and also in holding that plaintiffs had waived their rights in the property by allowing it to be used for a public school at that place.

The rule is thus stated in 13 Cyc. 498:

"If a dedication be made for a specific or defined purpose, neither the Legislature, the municipality, nor the general public has any power to use the property for any other purpose than the one designated.This can only be done under the right of eminent domain.Nothing can be clearer than that if a grant is made for a specific, limited, and defined purpose, the subject of the grant cannot be used for another."

On the same page the author says that, under this rule, dedicated property cannot be sold, even though the proceeds be applied to other public purposes.It follows that the church authorities had no right to turn the building over to the trustees of the school district to be sold by them, and the latter had no right to sell it, in order that the proceeds might be used in the erection of another school building at another place, without the consent of all parties interested.

It is contended that plaintiffs are estopped, because one of them (McCormac) was a member of the church, and was present at the church meeting at which the resolution turning the building over to the trustees was passed, and made no objection to it.There is not a particle of evidence that the trustees or any one else relied upon his silence to their detriment, or was misled by it.On the contrary, it appears that they knew before the meeting that he objected and refused to consent to the proposed action, and he told the trustees after the meeting, and before they did anything, that he objected to the removal of the building, and forbade them doing so.There is no element of estoppel in the case.Besides, even if McCormac were estopped, that would not affect the right of the other plaintiff to the relief sought.

The court below erred in refusing the injunction prayed for on the ground that plaintiffs have an adequate remedy at law.This conclusion was based on the ground that, as the trustees and the school district are solvent, the remedy by action for damages is adequate.A little reflection will suffice to show that the remedy suggested is inadequate.If the building be removed, plaintiffs cannot maintain a school at that place, as they have the right to do.It would be difficult, if not impossible, to prove or estimate the damages resulting from the deprivation of that right.There is no pecuniary standard by which such damages can be measured.Besides, the injury is not altogether to the plaintiffs.It affects them and others in like plight, and their children and the children of their neighborhood, not only at present, but also in the future.From its very nature, therefore, the injury is not susceptible of being compensated in damages.But, moreover, the rule is that wrongful acts resulting in the destruction of a plaintiff's property or the interference with his use of it may be prevented by injunction.22 Cyc. 764.

The suggestion that, because plaintiffs have lands adjoining the church lot which they can use to build a schoolhouse on, they should be denied their right to prevent the demolition and removal of the building in question is untenable upon its face.

The judgment of the circuit court is reversed.

WATTS and GAGE, JJ., concur.

GARY C.J. (dissenting).

This is an action to enjoin the sale of a schoolhouse by the trustees of school district No. 6 of Dillon county.The facts are thus stated in the decree of his honor, the circuit judge:

"In the year 1874, a number of citizens in the community now known as Reedy Creek school district, being interested in establishing a school, got together and by private subscription raised money to build a schoolhouse.Reedy Creek Church owns a lot of land, of about two acres, and it seems to have been the concensus of opinion that if proper arrangements could be made, that the schoolhouse should be placed on the church grounds, and in pursuance of that idea an agreement was entered into with the deacons of Reedy Creek Church that the schoolhouse should be placed on the church grounds, that it should be used as place of meeting for the deacons and elders of the church, and that it should remain upon the premises so long as desired by any one of the original subscribers.The schoolhouse was built, and within a short time of its completion was burnt, and practically the same parties rebuilt another at the same place.This old building continued to be used until 1903, when a new church was built, and in a meeting of the congregation duly notified and held, a resolution was passed by the congregation that old Reedy Creek church should be turned over to the trustees of Reedy Creek school, to be used as an academy, and that the old building then being used as a schoolhouse and the furniture in the old church should be sold, and the proceeds given to Reedy Creek Church.The old church was so used until 1913, when old Reedy Creek school was consolidated with an adjoining district, and a new and modern schoolhouse was built.Thereupon the trustees, acting upon the suggestion of the county superintendent of education, entered into a contract with their codefendant, D. D. McRae, to sell the old building, and he was proceeding to take it down and move it when this suit was brought.* * * The testimony tends to establish, and it was admitted by counsel in open court, that ever since the establishment of school districts in the state, the property in question has been handled and entirely controlled by the board of trustees of the school district; Reedy Creek school district being recognized as one of the established school districts of the state.During all that time, and for more than 20 years, the original subscribers never intimated that they had any claim, nor attempted in any manner to exercise any control over the property, but, on the contrary, it has been practically dedicated to the school district.In 1913, as above set forth, it was by resolution of the church, so far as it had power, formally turned over to the trustees, and according to the testimony and admissions of counsel it had been so used for many years previous to that time."

From these factshe reached the conclusion that:

"The plaintiffs have unquestionably waived any right, title, or interest they may have formerly had therein, even conceding that they had such right, and are not now in a position to assert a right which they may have formerly had."

The circuit judge thus states the reasons for the error into which the plaintiffs have fallen:

" The error into which plaintiffs have fallen is, in treating the controversy in question, as one between plaintiffs and the church, when, as a matter of fact, it is a controversy between plaintiffs and trustees of the public school district."

It will be observed that Reedy Creek Church was not made a party to this action, and its rights therefore are not involved.The circuit judge, however, says:

"There is nothing in the testimony tending to show that the church authorities are attempting to violate the alleged contract, and hence in the present controversy the plaintiff can derive no advantage therefrom."

There were about a dozen original subscribers, whose names appear in the testimony, but none of them, except the two plaintiffs, are partie...