Riley v. Town of Greenwood

• Citation: 51 S.E. 532,72 S.C. 90
• Parties: RILEY v. TOWN OF GREENWOOD et al.
• Decision Date: 04 July 1905
• Court: United States State Supreme Court of South Carolina

51 S.E. 532

72 S.C. 90

RILEY v. TOWN OF GREENWOOD et al.

Supreme Court of South Carolina

July 4, 1905

Appeal from Common Pleas Circuit Court of Greenwood County; Watts Judge.

Action by S. J. Riley against the town of Greenwood and its town council. From a judgment overruling a demurrer, defendants appeal. Affirmed.

F Barron Grier, for appellants. Johnstone & Cromer and McGhee & Richardson, for respondent.

GARY A. J.

This is an appeal from an order overruling a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The following statement appears in the record: "This action was instituted for the purpose (1) of having an ordinance of the town of Greenwood declared ultra vires, and enjoining defendants from undertaking to enforce the same; (2) to enjoin the defendants from undertaking to exercise any control over her land, on which she erected a fence as alleged in the complaint; (3) to enjoin defendants from interfering with the use and control of her land upon which the said fence was erected."

The complaint (omitting the formal parts thereof) alleges "That an alley twelve feet wide, owned by the plaintiff, Durst & Matthews, and others, runs from the public square in an easternly direction back to her lot of land above described. That from the eastern terminus of this alley, 107 feet from the public square, a road of the same width and in the same direction leads across her said lands to her livery stables on the same, and that the said alley has for years been used by the tenants and customers of her said livery stables, and by the occupants of the adjacent property of Durst & Matthews and their customers. That prior to the date hereinafter stated, and for the purpose of maintaining and protecting her rights in her said property, and preventing the unauthorized use of the same by persons traveling to and from the rear of the store on the said lot of Durst & Matthews, owned by the defendant, J. K. Durst, and others, she erected a fence on her said lot, along the northern side of the road above described as leading from the terminus of the said alley to her livery stables; the said fence running from the terminus of the said alley, parallel with said lot of Durst & Matthews, but being solely on her said land. That on the 10th day of June, 1904, the said town council of Greenwood passed an ordinance as follows: 'Be it ordained by the town council of Greenwood: (1) That the public alleyway leading from the public square to the old stables owned by Mrs. S. J. Riley, in the town of Greenwood, is hereby required to be kept open and free from obstructions of any kind. (2) That the free use and enjoyment by the public of said public alleyway mentioned in section 1 hereof, must not be interfered with or obstructed in any wise, and any person or persons who shall obstruct the said alley in any way or interfere with the free use thereof shall be fined not less than $5 nor more than $100, or be imprisoned not less than three days nor more than thirty days. (3) The mayor of the town of Greenwood is hereby directed and required to remove any obstruction placed in said alleyway, or any obstruction along the same which tends to interfere with the free use thereof.' That the defendants, acting under authority attempted to be conferred by the said ordinance, unlawfully entered upon said land, and, by their servants and agents, with force and violence, tore down and destroyed her said fence. That the alley mentioned in the said ordinance is that described in the third paragraph of this complaint. That it has never been dedicated to the public, and the public has acquired no right to it by deed or otherwise. That it has not been subject to the control of the defendants or of the public, and that the fence was not in the alley, and did not obstruct the same. That the conduct of the defendants in passing the said ordinance and in destroying her fence was an arbitrary attempt to deprive her of her property without due process of law, and for the benefit of private individuals, and that the said ordinance is ultra vires and void. That the constant menace of the said ordinance, backed by the police authority of the defendants, denies to her the quiet and peaceable use and enjoyment of her said property guarantied by the Constitution, leaves her without any adequate remedy at law, and warrants the intervention of this court in her behalf."

The first ground of demurrer was as...