Shia v. Pendergrass, 16674

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: FISHBURNE; BAKER
• Citation: 222 S.C. 342,72 S.E.2d 699
• Parties: SHIA v. PENDERGRASS.
• Docket Number: No. 16674,16674
• Decision Date: 06 October 1952

Page 699

72 S.E.2d 699 222 S.C. 342 SHIA
v.
PENDERGRASS. No. 16674. Supreme Court of South Carolina. Oct. 6, 1952.

[222 S.C. 343] McEachin, Townsend & Zeigler, Florence, for appellant.

Scott & Tyson, Keels & Hyman, Florence, for respondent.

FISHBURNE, Justice.

The complaint states a cause of action for injunctive relief against the respondent, from entering upon, trespassing on, and interfering with the appellant in the use and possession of a certain strip of land constituting part of a lot owned by her in the City of Florence.

The respondent by answer sets up two defenses: (1) That the strip of land in question constitutes an alleyway dedicated [222 S.C. 344] to the use of the public and to the City of Florence by the former owner, Mrs. C. M. Berry; (2) That the respondent has a right of way over the said driveway which is appurtenant to his property by right of prescription.

The cause was heard by the trial judge without a reference, and testimony was offered by both sides. The court decided that the respondent had no right to use the alleged alley as an appurtenant easement by prescription, but held that there has been a dedication of this strip of land by appellant's predecessor in title, for the use of the general public.

Page 700

We will first discuss whether the respondent successfully sustained the burden of proving that the use of this passageway by the public established a dedication.

The record shows that the appellant is the owner of a lot of land purchased from the heirs of Catherine M. Berry on December 22, 1947; it was a part of a larger lot owned by Mrs. Berry from the year 1918, or prior thereto, until she died in 1947. This lot is bounded on the north by the right of way of the Atlantic Coast Line Railroad Company; on the east by what has been designated as Buchheit alley; on the south by lands of the estate of Mrs. C. M. Berry; and on the west by the lots now owned by the respondent, formerly of Stackley. The strip of land in dispute constitutes the western portion of appellant's lot.

The respondent is the owner of two adjoining lots of land, one purchased on March 8, 1946 from Mrs. Coward; the other on June 7, 1946 from J. M. Rainwater, who purchased from Mrs. Hurst. Mrs. Coward and Mrs. Hurst are daughters of George Stackley, who died in 1930, and he was their immediate predecessor in title. Until his death, he was the owner of the respondent's two lots and two adjoining lots to their north, as shown on a plat or map of a portion of the Berry estate surveyed October 20, 1947 by A. L. Ervin, Civil Engineer.

[222 S.C. 345] The two lots which were conveyed to respondent were originally occupied by two store buildings. He has made one building of the two, wherein he is now operating a grocery store. The property of the respondent is bounded on the north by the right of way of the Atlantic Coast Line Railroad Company; on the east by appellant's lot; south by the estate of Mrs. C. M. Berry; and west by North Dargan Street. His store building fronts on Dargan Street on the west and extends back eastwardly within about three feet of his rear line.

Just to the east of respondent's property line on the rear lies the lot of appellant. Prior to appellant's purchase from the Berry estate, Mrs. Berry built a tin warehouse, about 1918, on what is now appellant's lot, which has a driveway about twelve feet wide adjoining it on its western side, extending from the Atlantic Coast Line Railroad Company right of way on the north to the southern line of appellant's lot. The loading and unloading doors of the warehouse face on this driveway to the west. The rear line of respondent's lots (appellant's western line) is adjacent to the driveway, and there is a door--the rear door of respondent's store--which opens on the driveway. It is this strip of land about 12 feet wide which admittedly belonged to Mrs. Berry and which forms a part of the lot conveyed by her to appellant, which gives rise to the controversy in this case.

Several other stores to the north and to the south of respondent's store, like his, front on North Dargan Street, and extend back to this alleged alleyway.

Prior to appellant's purchase, the warehouse property was rented by Mrs. Berry to various tenants over a period of more than twenty years. These tenants used the twelve foot driveway constantly and uninterruptedly for warehouse purposes. Tenants and customers of the stores owned by Stackley (respondent's predecessor in title) were permitted to use it for loading and unloading merchandise at their rear doors. The evidence shows that the only way that vehicles [222 S.C. 346] can reach the rear of respondent's store is by the use of the twelve foot driveway in question.

Appellant's deed describes her western boundary as property formerly of Stackley, a part of which is not owned by respondent. The two deeds by which respondent acquired his two lots do not mention the eastern boundary by way of an easement or an alley.

The civil engineer, Mr. Ervin, stated that he was thoroughly familiar with every lot in the block, including the property of appellant and respondent. He testified that in all of his inspections for surveys and actual surveys made in this block over a period of forty years, he had never heard of an alley in the place claimed by respondent. That customers of respondent's store and other stores were permitted to use the driveway for the purpose of entering the

Page 701

rear doors, and the trucks made use of the driveway and the vacant property belonging to Mrs. Berry immediately to the south, in order to reach the rear of these stores for the purpose of loading and unloading merchandise.

D. C. Barbot, City Manager, said there was no authorized alleyway back of the respondent's store, but that this area was used as a traveled way by people having business with the stores; that the city had...