Outlaw v. Moise, 16642

• Decision Date: 26 June 1952
• Docket Number: No. 16642,16642
• Citation: 71 S.E.2d 509,222 S.C. 24
• Parties: OUTLAW et al. v. MOISE.
• Court: South Carolina Supreme Court

Page 509

71 S.E.2d 509

222 S.C. 24

OUTLAW et al. v. MOISE.

No. 16642.

Supreme Court of South Carolina.

June 26, 1952.

Marion Moise, Sumter, for appellant.

Schwartz & Schwartz, Sumter, for respondents.

OXNER, Justice.

The pleadings and issues involved on this appeal are summarized in the agreed 'Statement' as follows:

'The complaint alleges insubstance that sometime prior to December 27, 1905, the then owners of a tract of land then outside the limits of the City of Sumter, but now incorporated within said limits, caused the same to be surveyed and platted showing certain streets on said plat and that the same was subdivided into lots and blocks and thereafter the said plat was recorded in the office of the Clerk of Court for Sumter County. That among the streets shown on said plat were certain streets designated Carolina Avenue, Folsom Street and Georgia Avenue, but that the name of Folsom Street has since been changed to Brunson Street and the name of Georgia Avenue has since been changed to Milton Avenue. That lots were sold to different purchasers according to said plat and through various and sundry conveyances the respondent, Moise Outlaw, is now the owner of a lot which fronts on Carolina Avenue and also owns a lot which fronts on Folsom Street (now Brunson Street), the respondents, Gantt, are the owners of a portion of a lot located at the corner of Carolina Avenue and Folsom Street (Brunson Street) and the respondent, Brunson, is the owner of a lot which fronts on Carolina Avenue. The complaint further alleges that the appellant is the owner of several lots of land fronting on Georgia Avenue (Milton Avenue) and has unlawfully and without authority attempted to and closed up two hundred (200') feet of Folsom Street (Brunson Street) and prevented the respondents and others similarly situated and the public from using that portion of Folsom or Brunson Street for a distance of two hundred (200') feet from Georgia Avenue (Milton Avenue). The respondents also allege that said street has been open to the public and used by the public until the same was closed by the appellant and that they bring this suit for the enforcement and preservation of the use of the property dedicated for the use of the street and ask that the appellant be enjoined from interfering with respondents in their use of said street and that the same be permanently opened as a public thoroughfare.

'In due time the appellant served his answer to the complaint which answer in substance set up a general denial and denies that the portion of Folsom Street (Brunson Street) referred to in the complaint has ever been open to the use of the respondents, their predecessors in title or the public in general. The answer further alleges that the land shown on said plat was composed of two separate and distinct parcels of land, one of which is called the Levi-Fantl tract, the remainder of which is now owned by the appellant and no part of the Levi-Fantl tract was ever sold or disposed of by the owners thereof according to said plat. That prior to January 31, 1908, the owners of the entire Levi-Fantl tract of land specifically abandoned and renounced any and all easements through, over or upon said tract of land. The answer further sets out that any and all conveyances made from the Levi-Fantl tract of land were made from other plats, all of which were spread upon the records of Sumter County with no reference whatsoever to the plat referred to in the complaint. For a fifth defense the answer alleges that the appellant and his predecessors in title have been in open, notorious, exclusive, continuous and hostile possession of the Levi-Fantl tract of land and all easements over and across the same for a period of time in excess of twenty (20) years and for a sixth defense alleges that the cause of action set forth in the complaint is barred by the Statute of Limitation set forth in Section 385, Code of Laws of South Carolina for 1942, in that the appellant and his predecessors in title had been in possession of said tract of land for more than forty (40) years prior to the commencement of this action and that neither the respondents, their ancestors or grantors had been in possession thereof or any easements in, upon or over the same for a period of forty (40) years prior to the commencement of this action. The answer further alleges that the appellant is the owner in fee of said tract of land, free and clear of all easements except a specific easement granted to the City of Sumter to install a sewer line across the same.

'In due time the respondents demurred to the fifth and sixth defenses set up in the answer of the appellant on the ground that the same did not allege facts sufficient to constitute a defense to the complaint.

'The matter was taken under advisement by the Honorable G. Duncan Bellinger, then presiding over the Court of Common Pleas for Sumter County, who subsequently filed his order sustaining the demurrer for the reasons set forth in said order. Notice of intention to appeal from the order of Judge Bellinger was served and this appeal follows.'

It is well established in this State that title to property dedicated to and used by the public for streets and highways cannot be acquired by prescription or adverse possession as against the State or any of its political subdivisions. Crocker v. Collins, 37 S.C. 327, 15 S.E. 951; Grady v. City of Greenville, 129 S.C. 89, 123 S.E. 494, 495. The great weight of authority elsewhere is to the same effect. Schoenberg v. O'Connor, 116 N.J.L. 398, 185 A. 377; Steele v. Fowler, Mayor, 111 Ind.App. 364, 41 N.E.2d 678; Huddleston v. Deans, 124 W.Va. 313, 21 S.E.2d 352. The underlying reason for this rule is that the corporate authorities of a municipality or other governmental unit are without power to sell or alien property devoted to such purpose. In Crocker v. Collins, supra [37 S.C. 327, 15 S.E. 953], the court stated 'that mere adverse possession for the statutory period of a street or alley in a town, which is a public highway, cannot confer title; but, where such possession is accompanied with other circumstances which would render it inequitable that the public should assert its rights to regain possession, then, upon the principle of estoppel. a party may be protected against the assertion of right by the public in order to prevent manifest wrong and injustice.' It is equally well settled that a private easement may be lost by adverse possession. Bowen v. Team, 6 Rich. 298; Southern Railway Co. v. Beaudrot, 63 S.C. 266, 41 S.E. 299; DuPont...