State v. Stackhouse
| Decision Date | 10 January 1881 |
| Docket Number | CASE 962. |
| Citation | 14 S.C. 417 |
| Parties | STATE, EX RELATIONE HAMER, v. STACKHOUSE. |
| Court | South Carolina Supreme Court |
1. The act of February 15th, 1872, (15 Stat. 42), which empowers a landowner to secure a right of way over the lands of another, violates none of the provisions of the constitution of this state.
2. This act, in authorizing a road or highway to the nearest highway was intended to secure to parties a way of ingress and egress, by whatever name called, to the nearest highway, and does not confine the referees to a location upon the nearest line to the highway.
3. This act is of force throughout the state, as well within the limits of incorporated cities and towns as elsewhere, except where acts of incorporation, by express words or by necessary implication, exclude it. There is no such exclusion in the charter of Little Rock, Marion county.
4. Where one opens a road over his own land, fro the back part to the highway, and afterwards, by deeds without reservation of a right of way, conveys the intervening lots to others who close up this road, he is not estopped from demanding that a road be opened to him over those lots under the act of 1872.
5. Prohibition is the proper remedy for keeping referees appointed under this act within the limits of their jurisdiction.
6. But prohibition is preventive only, and, therefore, after the road has been opened and this quasi court dissolved redress cannot be obtained under this remedy.
Before HUDSON, J., Marion, April, 1880.
Application for a writ of prohibition upon the relation of R P. Hamer against E. T. Stackhouse, R. Murchison, A. Schafer, referees, and D. W. McLaurin and R. R. Hays, restraining the defendants from proceeding further in the matter of establishing a road from the lands of McLaurin and Hays over land belonging to the relator. This road was established by the referees named, under their hands and seals, March 19th, 1880; notice of the application for this writ was dated March 20th; and the hearing was had by the Circuit judge April 10th.
For a few years prior to 1877, McLaurin owned a lot of land in the town of Little Rock, in Marion county. About the same time the wife of McLaurin purchased from Hamer another lot of land adjoining and took titles. Her husband assumed control of this lot also, and laid out a road from the back part of his own lot across other parts of his lot and on the edge of the lot of his wife, to the public highway leading through Little Rock to Marion C. H. In 1877, McLaurin sold to Hays a part of the back of his lot, and to Mrs. Sternberger the front part of his lot. In 1878, Mrs. McLaurin having failed to pay for her purchase, reconveyed to Hamer. In neither the deed to Sternberger nor in the deed to Hamer was there any reservation of a right of way over this road; and the land so conveyed intervened between the land retained by McLaurin and the land sold to Hays on the one part, and the highway on the other part, along the line of this road.
Sternberger and Hamer afterwards moved their fences so as to obstruct this road. McLaurin and Hays, in February, 1880, gave the necessary notice under the act of February 15th, 1872, of their intention to establish a right of way over the lands of Sternberger and Hamer, one or both, to the highway. Hamer protested and declined to name a referee, whereupon the referee named by McLaurin and Hays, and the referee named by Sternberger, selected a referee for Hamer; and these three referees made their report, whereby they established a road just where the former road had been, and awarded the damages. In their report they state that the road was not located by the most direct line to the highway, and gave their reasons for the location selected.
The order of the Circuit judge is as follows:
D. W. McLaurin, a citizen and resident of the town of Little Rock, in the county of Marion, is the owner of a parcel or lot of land in the said town without a right of way thereto, or mode of ingress and egress to any public road or highway.
To obtain this communication with the highway, he applied to the persons whose lots shut him out from the main street for permission to open a street of sufficient width from the public road or main street to his lot. This consent he failed to obtain from Mr. R. P. Hamer, one of the owners of intervening land. Whereupon he proceeded, under act of February 15th, 1872, to have the said street laid out by a board of referees, whose action is set forth in a report or finding accompanying these proceedings, with a plat of the road, street or highway which they have given to D. W. McLaurin over the lands of R. P. Hamer and others. In order to prevent the accomplishment of this matter, R. P. Hamer, the only dissenting land-owner, applies for this writ of prohibition against D. W. McLaurin and the said board of referees.
The town of Little Rock was incorporated March 9th, 1872. 15 Stat. 130. In that act no power is given to the town council to open a street except by consent of the owner of the land through which it runs; and unless relief can be had under the act of February 15th, 1872, (15 Stat. 42), D. W. McLaurin is without the means to obtain access to the public road from his lot by any existing law. The sole question presented by the record, which it is necessary to determine, in my opinion, is whether the act of February 15th, 1872, is in operation within the limits of an incorporated town. It is to be observed that the power conferred by that act upon referees is not conferred upon any of the authorities of the town of Little Rock; but by the tenth section thereof all similar or like power is denied to them; and if the act of February 15th, 1872, cannot be enforced within the limits of that town, its citizens are in a worse plight in this regard than those without the corporate limits, in the event of being without access to a public highway.
The act in question is general, and, in our judgment, is of force in every part of the state, as well within as without the limits of incorporated towns, unless the act of incorporation, by express words or by necessary implication, excludes it. It was a general law before Little Rock was incorporated, and we find nothing in the act of incorporation which expressly or by implication excludes its operation within the town.
We therefore adjudge the referees aforesaid have jurisdiction of the subject matter of this action sought to be prohibited, and that, having jurisdiction thereof, they have not exceeded it in their findings and proceedings. We deem it useless to notice other points raised in the application for the writ and in the argument of counsel.
It is adjudged that the petitions or suggestions in prohibition be dismissed with costs, and the writ is denied.
The relator appealed upon the following grounds:
1. Because his Honor, J. H. Hudson, erred in holding that the referees have jurisdiction of the subject matter of their action sought to be prohibited herein.
2. Because his Honor, J. H. Hudson, erred in holding that the act of the legislature of February 15th, 1872, is of force throughout the state as well within the limits of incorporated cities and towns, as elsewhere, except where acts of incorporation, by express words or by necessary implication, exclude it, and that it is neither excluded by express words nor by necessary implication by the act of incorporation of the village of Little Rock, S. C.
3. Because his Honor, J. H. Hudson, erred in holding that said referees having jurisdiction in the premises, did not exceed their jurisdiction in their findings and proceedings.
4. Because his Honor erred in holding that it was useless to notice the point raised (which is hereby renewed) that said act of February 15th, 1872, is unconstitutional, null and void.
5. That his Honor erred in overruling the position that D. W. McLaurin could not lawfully demand a way or right of way over lands of others after having deliberately sold off the very lands without reservation.
Mr. J. M. Johnson , for appellant.
1 st Ground of Appeal .-The act of February 15th, 1872, providing for referees, authorizes said referees to construct, first , a highway or road; and, second , to the nearest highway then existing. " A highway is not a street, either technically or in common parlance." 12 Rich. 418; Dill. on Mun. Corp. 518. As the act provides for highway or roads, and not streets, the referees had no jurisdiction. The act provides that it shall be to the nearest highway. The relator set forth in his prayer that the right of way would not be to the nearest highway if opened through his land. The referees find the prayer true. Dill. on Mun. Corp. , § 469, and authorities cited; Cooley on Const. Lim. 528, 541. Hence, the referees, not having complied with the only mode prescribed by the statute, their act is void.
2 d Exception .-General road acts do not apply to incorporated cities and towns, having special power to regulate and improve streets. 12 Rich. 407; 18 N. J. Eq. 305; 14 S. & R. 448. A general act in the nature of the act of February 15th, 1872, does not apply to the streets of a town, the charter of which confers on the corporation the authority to regulate streets and sidewalks, on the principle that the general legislation on a particular subject must give way to special legislation on the same subject. 33 N. J. L. 280; 16 Pick. 508; 1 Overton (Tenn.) 311. So that the power being placed in the intendant and wardens of Little Rock under the charter, (§ 10), by special legislation, the act of February 15th did not apply and the referees had no jurisdiction.
3 d Exception .-The fourth section of the act defines the duties of the referees-first, to faithfully determine the location; and...
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