Sanitary & Aseptic Package Co. v. Shealy

• Decision Date: 15 August 1944
• Docket Number: 15672.
• Citation: 31 S.E.2d 253,205 S.C. 198
• Parties: SANITARY & ASEPTIC PACKAGE CO. v. SHEALY.
• Court: South Carolina Supreme Court

31 S.E.2d 253

205 S.C. 198

SANITARY & ASEPTIC PACKAGE CO. v. SHEALY.

No. 15672.

Supreme Court of South Carolina

August 15, 1944

Wise & Whaley, of Columbia, W. Turner Logan, Jr., of Charleston, and Fred D. Townsend, of Columbia, for appellant.

Thomas Cain & Black, of Columbia, for respondent.

OXNER Justice.

This appeal involves the right of respondent to the use of a right-of-way or driveway, claimed to have been acquired by prescription, over a lot belonging to appellant in the City of Columbia.

Respondent owns a lot which fronts 52 feet on Sumter Street and extends back toward Main Street a distance of approximately 217 feet. Appellant's lot fronts 48 1/2 feet on Main Street and extends back toward Sumter Street approximately 208 feet. The two lots adjoin each other in the rear where they have a width in common of approximately 48 feet. They are located in the block bounded north by Scott Street, east by Sumter Street, south by Elmwood Avenue and west by Main Street The rearmost 50 feet of respondent's lot is entirely covered by a one story frame and metal building, constructed during the year 1917, which extends across the full width of the lot. When this building was constructed, the only entrances provided were two doors on the west side, opening into the rear of appellant's lot and reached by a driveway running from Main Street along the northern edge of appellant's lot and terminating at the entrances to this building. This controversy hinges upon the right of respondent to the use of this driveway for the purpose of ingress and egress to and from this building. Respondent claims such use has been acquired by prescription.

The issues in the case were referred to the Master who held that respondent had acquired a right by prescription to the use of this driveway and recommended that appellant be permanently enjoined from interfering with such use. The trial Judge before whom the case was heard on exceptions by appellant to the report of the Maser, in a formal order confirmed the report of the Master and awarded to respondent a permanent injunction. From this order appellant has appealed.

The facts are in the main undisputed. The two lots constituted only one and the ownership was undivided for a period of more than 40 years preceding the year 1909. They were owned by Richard O'Neal, Jr., from 1866 to 1885, and from 1885 to 1907 by Andrew Crawford. In an action to marshal the assets of the estate of Andrew Crawford, who died in 1907, the single lot was ordered to be divided by a line midway between and parallel to Main and Sumter Streets and to be sold as two parcels. This was done and both parcels were sold in 1909. By various mesne conveyances the two lots have come down to the present owners and no reference is made in any of these conveyances in either chain of title to the claimed right of way. However, in connection with the sale of the property by the Master in 1909, notice was given that the warehouse on the lot now owned by appellant "together with the right to use the strip of land north of it as a wagon way" was then under lease. Perhaps the oldest building on either lot is a one story brick building fronting on Main Street, and located on appellant's lot. It was this building which the Master was referring to as being under lease when the sale was made by him. During the period when this property was owned by Richard O'Neal, Jr., he used the brick building as a cotton establishment. Cotton was bought by him and the driveway was used by wagons and pedestrians in going from Main Street to this place of business. One witness stated that this driveway had been so used for 50 years or longer.

Immediately to the rear of the one story brick building on appellant's lot is a one story frame building, but the testimony does not disclose when it was constructed. These are the only two buildings located on appellant's lot. There are also two buildings located on the lot of respondent, one being the building constructed in 1917 and the other a one story frame building fronting on Sumter Street. The latter building was constructed sometime prior to 1911 and entrance to same is gained from Sumter Street.

The building of respondent which was constructed in 1917 has been used wholly or in part as a machine shop since it was erected. When this action was commenced a portion of it was used for storage by certain tenants and the remainder as a machine shop. The testimony abundantly shows that since 1917, the driveway in question has been used continuously, uninterruptedly, under a claim of right, by the operators of the machine shop and their customers for the purpose of going from Main Street to this building. In fact, prior to the commencement of this action this was the only way that vehicles could gain access to the entrance to said building. This action was commenced in 1938, showing such use of said driveway for a period of 21 years. Respondent acquired a one-half interest in the property in 1917 and the remaining one-half interest in 1920, so that respondent has owned its lot in whole or in part during said entire period.

The exceptions on appeal raise some questions which were not raised in the exceptions to the report of the Master. We can only consider such questions as were presented in the Court below. Verner et al. v. Perry et al., 45 S.C. 262, 22 S.E. 888. Some of appellant's exceptions raise wholly immaterial questions and others are rather vague and indefinite. The brief of appellant does not separately state the various questions involved. For these reasons, we have encountered some difficulty in ascertaining the issues sought to be raised. However, we gather that appellant relies upon three grounds for a denial to respondent of a prescriptive right to the use of said alleyway. It is contended that, (1) during a portion of the period the use by respondent was permissive; (2) for several years of the period when respondent claims that the use was adverse, the owner of the dominant estate was a tenant of the owner of the servient estate, thereby breaking the continuity of the period; and (3) respondent is estopped to assert any claim to pass over the lot of appellant by reason of the construction of the building in 1917 across the entire lot, thereby destroying an outlet from appellant's lot to Sumter Street.

The elements necessary to constitute a right by prescription have been well established in this jurisdiction since the early case of Lawton v. Rivers, 13 S.C.L. 445, 2 McCord 445, 13 Am.Dec. 741. This case has been consistently followed in a long line of decisions. Craven v. Rose, 3 S.C. 72; Williamson v. Abbott et al., 107 S.C. 397, 93 S.E. 15; Poole v. Edwards, 197 S.C. 280, 15 S.E.2d 349, and Steele v. Williams, S.C., 28 S.E.2d 644. These elements are stated in the case of Williamson v. Abbott, supra, in the following language:

"To establish a right by prescription, it is necessary to prove three things: (1) The continued and uninterrupted use or enjoyment of the right for the full period of 20 years; (2) the identity of the thing enjoyed; (3) that the use or enjoyment was adverse, or under claim of right." The Court there further said: "When it appears that claimant has enjoyed an easement openly,

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