Savannah River Lumber Corp. v. Bray

• Decision Date: 09 January 1939
• Docket Number: 14803.
• Citation: 200 S.E. 760,189 S.C. 237
• Parties: SAVANNAH RIVER LUMBER CORPORATION v. BRAY, County Sup'r, et al.
• Court: South Carolina Supreme Court

200 S.E. 760

189 S.C. 237

SAVANNAH RIVER LUMBER CORPORATION v. BRAY, County Sup'r, et al.

No. 14803.

Supreme Court of South Carolina

January 9, 1939

Appeal from Common Pleas Circuit Court of Beaufort County; Philip H Stoll, Judge.

Action by the Savannah River Lumber Corporation against R. V. Bray as Supervisor of Beaufort County, and others, for injunctive relief. From a judgment entered on a directed verdict for plaintiff, defendants appeal.

Judgment affirmed.

W. J Thomas, of Beaufort, for appellants.

H Klugh Purdy, of Ridgeland, for respondent.

STABLER Chief Justice.

This is an action for injunctive relief. The plaintiff alleged that it owns in Beaufort County a large tract of land, through which the Combahee Creek, a tributary of the Combahee River, runs; that it has on this creek a private landing which is connected by a private road across a part of these lands with a public road, and that it has placed a gate on such private road "where it leaves the public road and keeps said gate locked." It further alleged that the defendants have given it notice that they will "tear down said gate and open said road and landing to the public," and that if this is permitted to be done, the plaintiff will suffer irreparable injury, as it has "no adequate remedy at law to protect it from the threatened acts of the defendants in taking its property."

The defendants denied plaintiff's ownership of the fee to the road and landing in question, and alleged that the title thereto vested in the public; and that, therefore, plaintiff had no right to obstruct the road. They further alleged that in notifying plaintiff that they would remove the gate and open up the road, they were acting under instructions given by the grand jury of the county.

Upon call of the case for trial, in March, 1938, counsel for plaintiff made a motion "to have the Court try all questions of law and fact without the aid of a jury, on the ground that the pleadings showed that it was entirely an equity matter." Judge Stoll refused the motion, but stated that should he decide, after the testimony was in, that he did not need the jury, he would dismiss them and pass such decree as he deemed proper. At the close of all the evidence, each side moved for a directed verdict. The Court granted the plaintiff's motion, and in his order gave the following reasons for doing so: "Under the view I take of the case it is not necessary to decide if the questions of fact should be decided by me, a Court of equity or submitted to the jury. The testimony is susceptible of but one inference, and that is, that the road and landing are private and not public. It was admitted that the plaintiff is the owner in fee and in possession of the tract of land on which the road and landing are located, and there is no testimony to show that the road and landing have been used for general public purposes for a period of twenty years, and the testimony is undisputed that the road and landing go through unenclosed woodlands, and there is not a scintilla of testimony to show adverse use other than the traveling of the road, and under the case of State v. Miller, 130 S.C. 152, 125 S.E. 298, it is absolutely necessary to show adverse use of the road."

The appellants, defendants below, state three exceptions. They challenge the correctness of the findings and holdings of the Court as set out in its order, and charge error in its failing to submit the case to the jury under the testimony.

It will be noted that the trial Judge gave the following as one of the reasons for his granting plaintiff's motion for a directed verdict: "The testimony is undisputed that the road and landing go through unenclosed woodlands, and there is not a scintilla of testimony to show adverse use other than the traveling of the road, and under the case of State v. Miller, 130 S.C. 152, 125 S.E. 298, it is absolutely necessary to show adverse use of the road." Should it be found that he was correct in this, a decision of that question will dispose of the appeal adversely to the contentions of the appellants.

In State v. Miller, et al., 125 S.C. 289, 118 S.E. 624, the question presented by the appeal was whether the circuit Judge was in error in refusing to charge the request of the defendants, embodying the following proposition: "The rule in this state is that a prescriptive right arises in favor of the public after continuous use of a road for 20 years when it runs through cultivated land, but that, when it passes over unenclosed woodland, it must also be shown that the use was adverse and under a claim of right, and not by the owner's permission."

Mr. Justice Marion, who wrote the opinion of the Court, stated that: "The learned circuit judge, under the authority of State v. Sartor, 2 Strob. 60, and State v. Floyd, 39 S.C. [23], 24, 17 S.E. 505, apparently adopted the view and applied the rule that the public right arising from use of a neighborhood road through uninclosed woodland for 20 years or more does not rest upon adverse use, but upon a presumption from lapse of time that the owners of the land have dedicated it to the public use, under which rule the true test of the public right 'is in the general use, by all persons, for public purposes, for an uninterrupted period of twenty years or more.' State v. Sartor, supra."

The Court held in the Miller Case that the trial Judge was in error in refusing to charge the request, for the reason that the expressions contained in State v. Sartor and State v Floyd were obiter dicta, as Mr. Justice Jones had pointed out in his concurring opinion in Kirby v. Southern Railway, 63 S.C. 494, 524, 41 S.E. 765; and that while, "in certain subsequent decisions, notably in Kirby v. Southern Railway, supra, and Earle v. Poat, 63 S.C. 439, 41 S.E. 525,...