Sloan v. City of Greenville

• Decision Date: 01 December 1959
• Docket Number: No. 17587,17587
• Citation: 111 S.E.2d 573,235 S.C. 277,76 A.L.R.2d 888
• Parties: , 76 A.L.R.2d 888 E. D. SLOAN, Individually and as a taxpayer, citizen, resident and user of the streets of the City of Greenville, South Carolina, for himself and for all other taxpayers, citizens, residents and users of the streets of the said City of Greenville, Appellant, v. CITY OF GREENVILLE, a municipal corporation, J. Kenneth Cass, the Mayor of the City of Greenville, Robert W. Hunter, Sam F. Floyd, W. M. Sanders, Dr. W. H. Powe, Dr. Thomas Parker and Gus Smith, the City Council of the City of Greenville, South Carolina, J. A. Brown, the acting Building Commissioner for the City of Greenville, and R. H. Cureton, the City Engineer for the City of Greenville, Respondents.
• Court: South Carolina Supreme Court

Page 573

111 S.E.2d 573

235 S.C. 277, 76 A.L.R.2d 888

E. D. SLOAN, Individually and as a taxpayer, citizen resident and user of the streets of the City of Greenville South Carolina, for himself and for all other taxpayers citizens, residents and users of the streets of the said City of Greenville, Appellant, v. CITY OF GREENVILLE, a municipal corporation, J. Kenneth Cass, the Mayor of the City of Greenville, Robert W. Hunter Sam F. Floyd, W. M. Sanders, Dr. W. H. Powe, Dr. Thomas Parker and Gus Smith, the City Council of the City of Greenville, South Carolina, J. A. Brown, the acting Building Commissioner for the City of Greenville, and R. H. Cureton, the City Engineer for the City of Greenville, Respondents.

No. 17587.

Supreme Court of South Carolina.

Dec. 1, 1959.

Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Price & Poag, W. H. Arnold, Greenville, for respondent.

MOSS, Justice.

This is a proceeding for injunctive relief instituted by the appellant, E. D. Sloan, as a taxpayer, citizen, resident and user of the streets of the City of Greenville, South Carolina, on behalf of himself and all others in like situation, against the City of Greenville, its City Council, the Building Commissioner, and the City Engineer, the respondents herein. The appellant sought to enjoin the City and its officials from issuing a building permit to W. H. B. Simpson and John A. Ellison, which would permit the construction of a five-story, ten-level parking building at the intersection of West McBee Avenue and South Laurens Street, so that a portion of the building would overhang West McBee Avenue and South Laurens Street. The overhang on West McBee Avenue would commence thirteen feet above the street level and extend out over said street approximately six feet. The overhang on South Laurens Street would commence twelve feet above the street level and extend out over the said street for eight feet.

The application for a building permit to erect the proposed parking building overhanging the two public streets as aforesaid, was referred to the Public Safety Committee by the City Council. This committee held a public hearing and subsequently unanimously approved the issuance of the permit. The matter was thereafter brought up before the City Council, at a public meeting, and the said council unanimously approved and ratified the action of the Public Safety Committee and directed the issuance of the building permit. The permit authorized the construction of this parking building with the overhang into West McBee Avenue and South Laurens Street to the extent heretofore stated.

Upon the granting of the building permit by the City Council, the appellant instituted this action for a permanent injunction enjoining the city officials from issuing, or allowing to be issued, a permit for the erection of the multi-storied parking building encroaching upon or overhanging in any way the public streets heretofore referred to. The respondents filed an answer asserting that the City had, in its discretion, the authority to grant the permit.

This case was tried before the Honorable G. Badger Baker, Presiding Judge of the Thirteenth Circuit. Thereafter, the trial Judge issued an order denying the appellant the relief sought, and holding that the proposed projection of the building over the streets did not constitute a purpresture and a public nuisance, or an unlawful obstruction and encroachment to and upon the streets, since the overhang was limited to space above and beyond the horizontal and perpendicular zone required for vehicular and pedestrian traffic.

The parties to this action agreed that 'West McBee Avenue and South Laurens Street are public streets in the City of Greenville and were dedicated to the public for street purposes by plat of Lemuel Alston when the City of Greenville was initially laid out. The City does not own the feet to said streets.' It appears by reference to the case of Grady v. City of Greenville, 129 S.C. 89, 123 S.E. 494, 495, and the case of Chapman v. Greenville Chamber of Commerce, 127 S.C. 173, 120 S.E. 584, that the streets shown on the Lemuel Alston map were dedicated as streets by the said Alston, the owner of the fee to said streets, in the latter part of the eighteenth century, and what is now the City of Greenville was then known as 'The Village of Pleasantburg.'

The question for determination upon this appeal is whether the City of Greenville, which holds title to the streets in question, in trust, for the public for street purposes only, has authority to permit the area above such streets to be used for private purposes.

In the case of Grady v. City of Greenville, supra [129 S.C. 89, 123 S.E. 496], this Court said:

'Dedication is the giving of land or an easement for the use of the public by the owner. 9 A. & E. Enc. (2d Ed.) 21. That 'a dedication, whenever completed, is irrevocable' is well settled. 9 A. & E. Ency. (2d Ed.) 77, Hence:

"If a dedication is made for a specific or defined purpose, neither the Legislature, a municipality, or its successor, nor the general public has any power to use the property for any other purpose than the one designated, whether such use be public or private, and whether the dedication is a common-law or a statutory dedication, and this rule is not affected by the fact that the changed use may be advantageous to the public.' 18 C.J., 127; McCormac v. Evans, 107 S.C. 39, 42, 92 S.E. 19.'

And again from the Grady case we quote the following:

'The city council was then, and is now, vested with full and exclusive power to control and direct the use of the land for street purposes. Charter, 19 Stat, 106; Section 4570, Code 1922. The exercise of that power is purely a legislative function. State ex rel. Townsend v. Board of Park Com'rs, 100 Minn. 150, 110 N.W. 1121, 9 L.R.A.,N.S., 1045. That a municipality, acting through its legislative body, has no power to alien the streets of a town, or by contract, ordinance, or by-law, to cede away, limit, or control its legislative or governmental authority over streets, or otherwise to disable itself from performing its public duties, is elementary. Wabash R. Co. v. City of Definance, 167 U.S. 88, 97, 17 S.Ct. 748, 42 L.Ed. 87. Spencer v. Mahon, 75 S.C. 232, 55 S.E. 321. Crocker v. Collins, 37 S.C. 327, 15 S.E. 951, 34 Am.St.Rep. 752.'

The dedication by Lemuel Alston of the land within the bounds of West McBee Avenue and South Laurens Street was for a specific, limited and defined purpose. The lands were dedicated to the public for street use only and the City of Greenville has no power by contract, ordinance, or permit, to devote the street to a purpose inconsistent with the primary and essential object to which the street was dedicated. As was said in the case of McCormac v. Evans, 107 S.C. 39, 92 S.E. 19, 20, '* * * Nothing can be clearer than that if a grant is made for a specific, limited and defined purpose, the subject of the grant cannot be used for another.'

This Court has said in numerous cases that all property held by a municipal corporation is held in a fiduciary capacity. Haesloop v. City Council of Charleston, 123 S.C. 272, 115 S.E. 596; Green v. City of Rock Hill, 149 S.C. 234, 147 S.E. 346, and Carter v. City of Greenville, 175 S.C. 130, 178 S.E. 508.

In the case of Green v. City of Rock Hill, supra [149 S.C. 234, 147 S.E. 356], this Court said:

'The 'discretionary power of use and disposal does not include the authority to donate (or devote) municipal property to a strictly private use, for the obvious reason that a transfer or release of such property by a municipality to a private ownership (or use) without receiving in return some consideration of reasonably equivalent value would amount to a palpable breach of the trust upon which it is held.' Haesloop v. City Council, supra; 43 C.J., 1341.'

In 25 Am.Jur., Highways, section 276, at page 571, it is said:

'* * * Where the municipality does not own the title to its streets, it cannot use them or authorize their use for anything other than street purposes. * * *'

In the case of Bethel Methodist Episcopal Church v. City of Greenville, 211 S.C. 442, 45 S.E.2d 841, this Court held that since a municipal corporation holds and controls its streets, in trust, for the use and benefit of the general public, it is without authority to convert such streets of any other use.

Since the City of Greenville, or its predecessor, accepted the land dedicated by Lemuel Alston for street purposes, the said city is without authority to change the use or to apply the property to some other use inconsistent with the dedication. The city does not have the discretionary power to devote this dedicated property to the private use of the parties constructing a private parking building. The public has the right to the unobstructed use of the streets as they were acquired by the City of Greenville.

The lower Court, in denying the appellant injunctive relief, held that the proposed projection of the parking building over the streets to the extent hereinbefore stated, did not constitute a purpresture and a public nuisance, or an unlawful obstruction and encroachment to and upon the streets, because there would be no interference to the right of vehicular and pedestrian traffic movement. It was also held that the erection of the building would not be incompatible or inconsistent with the dedication of the streets because there would be no obstruction or encorachment in the traffic movement area. The appellant alleges that the proposed encroachment of the parking building is a purpresture.

A purpresture is well defined in the case of Southeastern Pipe-Line Co. v. Garrett, 192 Ga. 817, 16 S.E.2d 753, 760, where it is said:

'A 'purpresture' as defined at common law, and recognized in this and other States, is 'when one encroacheth and makes that serviceable to himself which belongs to many,' as "when there is a house builded or an inclosure made of any...