Northrop v. Simpson

• Decision Date: 20 August 1904
• Citation: 48 S.E. 613,69 S.C. 551
• Parties: NORTHROP v. SIMPSON.
• Court: South Carolina Supreme Court

48 S.E. 613

69 S.C. 551

NORTHROP

v.SIMPSON.

Supreme Court of South Carolina.

Aug. 20, 1904.

INJUNCTION—IRREPARABLE INJURY.

1. In a suit to enjoin the erection of a building on an open space adjoining a lot owned by plaintiff on the ground that it was dedicated as a street, and that plaintiff had an easement therein by reason of having purchased the adjacent lot, where the evidence shows that defendant has been in possession for some 25 years, and there is a serious contest as to the right of plaintiff to have the street opened, and the only irreparable injury alleged is the building of the house on the land which would be embraced in the street, an interlocutory injunction, not being essential to the protection of any legal right of the plaintiff pending the litigation, was properly dissolved.

Appeal from Common Pleas Circuit Court of Spartanburg County; Townsend, Judge.

Action by Rt. Rev. H. P. Northrop, bishop of Charleston, against J. W. Simpson. Prom order dissolving interlocutory injunction, plaintiff appeals. Affirmed.

Sanders & De Pass and J. Bowie Gwynn, for appellant.

Simpson & Bomar, for respondent.

WOODS, J. ' While the court finally adjudges nothing as to the issues of fact In volved in the action, in considering this appeal from an order dissolving an injunction it is necessary to make a brief statement of the facts as they are set out in the complaint and affidavits. Mrs. Mary Owens Dean, with a view to disposing of a valuable tract of land in the city of Spartanburg, had it surveyed and marked off into lots and proposed streets. Subsequently two of these lots, fronting on Dean street, were acquired by the Catholic Church, which erected its house of worship on the most southerly, known as lot "No. 5." Adjoining lot No. 5 on the south, and extending back its full length, is an open and unoccupied space or way 60 feet wide, and shut in at the rear by a fence. One of the streets indicated on Mrs. Dean's plat was projected from Dean street, taking the land in the open space above mentioned, and continuing on to Alabama street, over the land now in dispute. This street, as indicated on the plat, has never been in actual use over the lands claimed by the defendant, nor was it ever accepted by the city council; the petition to that end not having been acted on. In October, 1903, Hosea J. Dean, Jr., who held under Mrs. Mary Owens Dean, conveyed the portion of this proposed street which opened out on Alabama street to the defendant, J. W. Simpson, who, after giving notice to the agents of...