Scheper v. Clark

• Decision Date: 14 May 1923
• Docket Number: 11226.
• Parties: SCHEPER ET AL. v. CLARK ET AL.
• Court: South Carolina Supreme Court

117 S.E. 599

124 S.C. 302

SCHEPER ET AL. v. CLARK ET AL.

No. 11226.

Supreme Court of South Carolina

May 14, 1923

Appeal from Common Pleas Circuit Court of Beaufort County; George E Prince, Judge.

Action by F. W. Scheper and others against E. G. Clark and others. From judgment for plaintiffs, defendants appeal. Reversed and remanded, with direction to enter a nonsuit.

The following is the ruling of the presiding judge on plaintiff's motion for a directed verdict referred to in the opinion:

Mr Foreman, plaintiff comes into the court and seeks to recover of the defendant a portion--a strip of land--two strips of land--one strip, I believe, is only in the controversy--two strips of 15 feet on each side of the public highway running to the depot and Port Royal. They have introduced deeds to show that this had been conveyed to the plaintiffs and some of their ancestors, the parties to whom the conveyance was had, and their heirs at law, and the heirs at law are here representing their shares and claiming this land. The above counsel for defendant has tried to prove that this is a part of the public highway of the county, that the public has used for 20 years or more as a public highway. Well, in so far as it has been used, he is right; one of these turnpike roads--it was a turnpike road, and a turnpike road in a sense is a public highway. Well, when the charter expired, why the public continued to use the part that has been used for a highway as a highway, and the public to that part has acquired title but yet it seems that it has been previously conveyed, or whether it was conveyed by the deeds put in evidence by the county commissioners. So the county commissioners acquired title to 30 feet. Therefore, there being nothing to the contrary, I direct you to find a verdict for the plaintiff in this case, because no evidence that the public ever used the 15 feet, no evidence that the shell road was over 60 feet. The only evidence that it was 19 or 20 feet, and that trees of considerable size grew on the outside of this place. They could not have grown there in less than 20 or 25 years, so there is no evidence that it was ever used as a highway outside of this thirty feet. I agree with defendants' counsel that nobody could dispose of what the public has acquired the right to use, but there is no evidence that the public had acquired the right to use or insisted upon the right to use in excess of 30 feet--is no evidence that the defendant had any right to any portion of this thing. He has not proved any better right than the plaintiff has. So write a verdict, we find for plaintiff the land in dispute.

W. J. Thomas, of Beaufort, for appellants.

George W. Beckett, of Beaufort, for respondents.

COTHRAN J.

Action for the recovery of a strip of land 15 feet wide and 1,530 feet long, lying adjacent to and on the south side of a certain road or street in the city of Beaufort, with $550 damages.

The contention of the plaintiffs is that on May 26, 1902, an agreement was entered into between the Beaufort & Port Royal Turnpike Company (which will be referred to as the turnpike company), party of the first part, and the county commissioners of Beaufort county, the town of Beaufort, James M. Crofut and wife, Charles E. Danner & Co., George Holmes, and F. W. Scheper, parties of the second part, whereby, in consideration of $500 paid by the county commissioners, $300 by the town of Beaufort, $100 by Crofut and wife, and $150 by Danner & Co., Long, Holmes, and Scheper, and $350 by the citizens of Beaufort county, the turnpike company was to convey to the county of Beaufort and the individuals named, Danner & Co., Long, Holmes, and Scheper, a certain strip of land 60 feet in width and about 1,530 feet in length, which had been conveyed to the turnpike company by Lewis R. Sams on April 17, 1877, "formerly used by it as a roadway"; that it was agreed at the time that the county commissioners would take the middle 30 feet of the 60-foot strip, and that Danner & Co., Long, Holmes, and Scheper would take the two outside 15-foot strips; that the money was paid to the turnpike company, amounting to $1,400, as agreed, by the several parties named; that in December, 1912 (which it will be noticed was 10 years, nearly 11, after the alleged agreement was entered into, and 16 years after the charter of the turnpike company had expired), the turnpike company, by George Holmes, president (one of the individual parties to the alleged agreement of May 26, 1902), and W. F. Marscher, secretary, executed a deed reciting the aforesaid agreement, and conveying the said 60-foot strip to the county commissioners, Danner, Long, Holmes, and Scheper, divided among them as above indicated.

It seems that the whole of the 60-foot road was then abandoned by the turnpike company. A part of it was within the corporate limits of the town of Beaufort, and the other in the county. The county assumed jurisdiction of that part of the 30-foot strip that lay outside, and the town that part that lay within the town. It does not appear that the individual parties went into possession of either of the 15-foot strips.

It is alleged in the complaint that in April, 1916, the plaintiffs, claiming that they were the owners of the two 15-foot strips, leased the one on the south side of the road or street in the town of Beaufort to said town (or ctiy), and that in January, 1919, the defendant Clark took possession thereof, excludes the plaintiffs therefrom, and has made it impossible for the plaintiffs to keep their agreement with the city.

At the close of the evidence, which tended to sustain the foregoing contentions of the plaintiffs, the defendants moved for a nonsuit, which was refused. The record does not show who the defendants other than Clark were, the title showing only "et al." At the close of all the evidence both plaintiffs and defendants moved for directed verdicts. The motion of the defendants was refused, and that of the plaintiffs granted. (The ruling of the presiding judge upon the motion will be reported.) From the judgment entered upon this directed verdict the defendants have appealed upon grounds going to the refusal of the motion for nonsuit and the granting of the plaintiffs' motion for a directed verdict; they fairly raise the matters hereinafter discussed.

The record for appeal leaves somewhat in doubt the extent and location of the 60-foot strip conveyed by Sams to the turnpike company and the location of the alleged trespass by Clark. From the allegations of the complaint and the arguments of counsel it may fairly be inferred that the strip began at a point within the city of Beaufort extended to the corporate limits, and thence into the jurisdiction of the county commissioners, and that the locus of the present controversy is within the city of Beaufort. It may be assumed also that there are property owners whose lots fronted the turnpike as it was originally projected; and to sustain the contention of the plaintiffs would be to vest in them title to a strip 15 feet wide lying between these fronts and the new location of the road or street 30 feet wide, effectually cutting them off from access to the street, and without the possibility of recovering it by condemnation. This consummation should not be allowed effect except under the compulsion of the law.

From the very crude minutes of the meeting of the county commissioners of May 26, 1902, it appears reasonably certain that a verbal agreement had been entered into between the turnpike company, whose charter had expired in 1896, 6 years before, and who were anxious to dispose of the turnpike, as a party on the one side, and the county commissioners, the town of Beaufort, certain citizens of Beaufort and Port Royal, and Danner, Long, Holmes, and Scheper, parties on the other, by which the turnpike company would sell all of their right, title, and interest "in the 60 feet of road owned by them" for $1,400; that this $1,400 was to be paid, by the county, $500, by the town, $300, by certain citizens, $350, by Crofut and wife, $100, and by Danner, Long, Holmes, and Scheper, $150; that Crofut and wife were to receive as consideration for their $100 a deed from the county commissioners to a portion of a certain road (described) which presumably was laid off on their land, practically a discontinuance or abandonment of that part of a public highway; that Danner, Long, Holmes, and Scheper were to receive as consideration for their $150 a deed, presumably from the turnpike company, to "fifteen (15) feet on each side of the road purchased for [from?] the turnpike company, being that part of the road not shelled and not in use, and also [presumably from the county] fifteen (15) feet on each side of the sixty (60) feet of road conveyed to the county by the estate of Geo. Waterhouse, said road being formerly under a lease to the turnpike company;" as a part, also of the agreement the estate of Waterhouse was to convey to the county the roadway then under lease to the turnpike company in exchange for a deed from the county to a certain road laid out upon the Waterhouse property.

So it appears that the agreement contemplated a conveyance by the turnpike company to Danner and his associates named above of the two 15-foot strips and by the County to Danner and his associates of like strips of the Waterhouse road, by the county to Crofut of a part of the county's highway, and by the county to Waterhouse of a part of the county highway.

No objection to the introduction of these minutes was interposed, as failing to evidence an agreement between the turnpike company and Danner and his associates. The turnpike company was...