Merrimon v. McCain

• Decision Date: 22 July 1942
• Docket Number: 15447.
• Citation: 21 S.E.2d 404,201 S.C. 76
• Parties: MERRIMON v. McCAIN.
• Court: South Carolina Supreme Court

21 S.E.2d 404

201 S.C. 76

MERRIMON v. McCAIN.

No. 15447.

Supreme Court of South Carolina

July 22, 1942

Appeal from Common Pleas Court, of Sumter County; L. D. Lide, Judge.

Suit by Mrs. Jessie M. Merrimon against Laura McCain for a preliminary mandatory injunction to require defendant to remove an obstruction upon a right of way and to restrain interference with plaintiff's use thereof and for damages, wherein defendant filed a counterclaim. From an adverse decree plaintiff appeals.

Order of Judge Lide follows:

Lucy A Thomas (a colored woman) owned a parcel of land in the City of Sumter, fronting on Salem Avenue, upon a portion of which was her dwelling house, and adjacent thereto was an alley about ten feet in width extending from the street to the rear of her premises. This alley is sometimes referred to by counsel as a roadway or driveway; and the rights of the parties with reference to the same is the principal matter of controversy herein.

In the year 1904, Lucy A. Thomas conveyed to her son Thomas Thomas for $5.00 and love and affection a vacant lot on her parcel of land fronting on Salem Avenue 33 feet, and extending back in the same width 46 feet. Shortly thereafter Thomas Thomas constructed a dwelling house on this lot which extended clear across the front of his lot and appears to have occupied substantially all of it. Immediately adjacent to this lot is the alley above mentioned.

In the year 1916 Thomas Thomas acquired from his mother, Lucy A Thomas, another vacant lot immediately to the rear of the lot conveyed to him in 1904. The latter conveyance was also for $5.00 and love and affection. This lot was described as being 33 feet, more or less, in width and extending back 84 feet, more or less.

On the same date that Thomas Thomas acquired the rear lot from his mother he mortgaged the entire property to A. S. Merrimon, Esq., and as the result of the foreclosure of this mortgage many years later the plaintiff, Mrs. Jessie M. Merrimon, acquired title to the property on November 8, 1934.

In the meantime, to wit, on March 8, 1918, Lucy A. Thomas conveyed to her son-in-law Seigmond McCain the property on which her residence was situate (the same being her original parcel less the two lots conveyed to Thomas Thomas as above stated). Seigmond McCain died December 28, 1939, and his wife Laura McCain, the defendant above named (daughter of Lucy A. Thomas), acquired the property under the will of her husband.

This action was commenced by Mrs. Jessie M. Merrimon against Laura McCain on or about the 8th day of June, 1940, and the complaint alleges the ownership by Mrs. Merrimon of the Thomas Thomas property consisting of two lots which taken together form one lot alleged to be of "a uniform width of thirty-three (33) feet, more or less, and a uniform depth of one hundred and thirty-one and one-half (131 1/2) feet, more or less." And the complaint further alleges that the plaintiff is the owner of an easement and right-of-way appurtenant to her land for purposes of ingress and egress from Salem Avenue in and over the land of the defendant adjacent thereto, in that there is a dwelling house on plaintiff's land which extends entirely across that portion of her land which fronts on Salem Avenue, and hence there is no means of ingress or egress with wagons, automobiles or other vehicles except by the easement and right-of-way claimed, which is alleged to be necessary to the reasonable use and enjoyment of plaintiff's land. And it is further alleged that the roadway constituting this right-of-way existed at the same identical location it now has at the times of the conveyances by Lucy A. Thomas to Thomas Thomas of the land now owned by the plaintiff, and (quoting from the complaint) "had so existed and been used in connection with all of the said land originally owned by the said Lucy A. Thomas for many years prior to the said conveyances, and it has since been continuously used as a necessary means of ingress and egress to and from the land now owned by the plaintiff." It is further alleged that the defendant had recently in disregard of plaintiff's rights wilfully and unlawfully erected a board fence "completely obstructing the said easement and right-of-way in two separate places and depriving the plaintiff of the use thereof," to her damage actual and punitive "for the injury already thus committed" in the sum of $500.00; and that the defendant threatened to continue such obstruction.

The prayer of the plaintiff is that a preliminary mandatory injunction be issued by the Court requiring the defendant to remove the obstruction, and restraining her from interfering with plaintiff's use of the easement and right-of-way, during the pendency of the action; that the injunction be made permanent; and for the sum of $500.00 damages, etc.

Upon the filing of this complaint duly verified and supported by certain affidavits Hon. Philip H. Stoll, Judge of the Third Circuit, granted an interlocutory mandatory injunction dated June 8, 1940.

The defendant in due time answered denying plaintiff's right to the alleged easement and right-of-way, and also setting up by way of counterclaim that the dwelling house erected by plaintiff's predecessor in title encroaches upon defendant's lot to the extent of three feet, more or less; and a reply to the counterclaim containing a general denial as well as an affirmative defense was duly filed.

The case came on to be tried before the undersigned as presiding Judge and a jury at the Fall term, 1941, of the Court of Common Pleas for Sumter County. It should be stated here that it appears that counsel for the defendant had moved the Court in due time for an order submitting certain issues of fact to the jury, and the motion was granted by Hon. J. Henry Johnson, presiding Judge, on October 10, 1940. While this order was not binding upon me, I did submit issues to the jury somewhat similar to the ones referred to in the order of Judge Johnson.

The following issues were submitted by me to the jury, and they answered the same as indicated below:

1. Has plaintiff, Jessie M. Merrimon, an easement and right-of-way over the lot of defendant, Laura McCain? No.

2. Has the alleged easement and right-of-way been at the same identical location since the purchase of the lot (now owned by plaintiff) by Thomas Thomas? Yes.

3. Does any portion of the dwelling house of plaintiff extend over the original line of defendant's lot? Yes.

4. If so, has plaintiff acquired title to such portion of defendant's lot upon which the dwelling house is situate by adverse possession? No.

5. What damages, if any, is plaintiff entitled to recover against the defendant? None.

Immediately upon the return of the verdict on September 30, 1941, counsel for the plaintiff made a motion to set aside the adverse answers of the jury, etc., and the motion was by express consent of counsel for both parties marked heard, and was argued before me at the close of the term of the Court of General Sessions for Sumter County on November 4, 1941, and taken under advisement. And counsel for the respective parties have furnished me with elaborate and carefully prepared briefs which I have found quite helpful.

The motion on behalf of the plaintiff is three-fold, to wit: (1) to set aside the unfavorable answers of the jury; (2) to permit the plaintiff to introduce certain additional evidence and to refer the case to the Master except as to the issue of damages; and (3) that if the case be not referred a decree be granted adjudging the plaintiff to be the owner of the easement in question and permanently enjoining the defendant with reference thereto and dismissing the counterclaim.

Counsel for the plaintiff in his brief contends that the plaintiff is the owner of the easement in question for three reasons, to wit: (a) that it is an easement appurtenant to her property (aside from and in addition to her ownership thereof as a way of necessity); (b) that she is the owner of the easement by implied grant as a way of necessity; and (c) that she is the owner of the easement by prescription based on adverse use by herself and her predecessors for more than twenty years. With reference to the first two of these specifications the evidence is really uncontradicted and these are therefore issues of law rather than of fact.

Stating the matter another way, the plaintiff claims that Thomas Thomas acquired by implication of law a right-of-way over the lands of Lucy A. Thomas, that is to say, a right to use the alley on her lands as an easement appurtenant to...