Town of Estill v. Clarke

• Decision Date: 27 February 1936
• Docket Number: 14241.
• Citation: Town of Estill v. Clarke, 179 S.C. 359, 184 S.E. 89 (S.C. 1936)
• Parties: TOWN OF ESTILL v. CLARKE.
• Court: South Carolina Supreme Court

184 S.E. 89

179 S.C. 359

TOWN OF ESTILL v. CLARKE.

No. 14241.

Supreme Court of South Carolina

February 27, 1936

Appeal from Common Pleas Circuit Court of Hampton County; C.J Ramage, Judge.

Action by the Town of Estill against C. M. Clarke. From the judgment, the plaintiff appeals.

Affirmed.

George Warren, of Hampton, for appellant.

Randolph Murdaugh, of Hampton, for respondent.

BAKER Justice.

This action was instituted in the court of common pleas for Hampton county on August 28, 1933, by the town of Estill, a municipal corporation, for the purpose of requiring C. M Clarke, respondent, to remove a building alleged to have been erected by respondent on Railroad avenue in said town and to enjoin respondent from maintaining same. Respondent was ordered to show cause before the resident judge of the Fourteenth judicial circuit why the relief prayed for by the complaint should not be granted, but, upon motion of respondent's counsel, the issue involved was ordered tried by a jury. The case came on for trial at the February 1934, term of court before his honor, C.J. Ramage, and a jury. A verdict was rendered for C. M. Clarke, respondent. Motion for a new trial was made, and his honor, C.J. Ramage filed his order on March 16, 1934, refusing same, and thereafter appellant, in due time, took the proper course to perfect its appeal to this court.

Omitting the formal portions of the complaint, appellant alleges that at the time of its incorporation and since then there has been established in the town of Estill, along the Seaboard Air Line Railway, an open street between the building line to the east of said railway and the edge of the right of way one hundred feet in width; that this space has been generally and continually used by the traveling public for all public purposes, for parking purposes, and has been dedicated to the use of the public and the town, and is owned by the town of Estill; that, without right or authority and in violation of law, respondent had erected on a public street and park in said town at the junction of Third street and Railroad avenue at a point east of the right of way of the railroad, a building fifteen feet wide and thirty-nine feet long; that said building mars the beauty of the open way, street, and park and obstructs the traveling public.

Respondent, by his answer, admits that he has constructed a building in the town of Estill, but denies that the land upon which it is constructed is owned by the town of Estill or that it has ever been used by the general public as a park or a place of travel. Further answering the complaint, respondent alleges that he is in possession of the strip of land involved by virtue of a lease; that the defendant's lessor and his predecessors in title have been in possession of the strip of land involved under color of title and claiming to be seized and possessed thereof in fee simple for more than forty years next preceding the commencement of this action, and that respondent is now in possession thereof.

Appellant has filed twelve exceptions to the judgment of the trial court, and they will be considered severally, except when it is convenient to group them.

By its first, second, third, and fourth exceptions, appellant raises the following question: Was there sufficient evidence to show a dedication to the public of the realty involved for use as a street?

A thorough analysis of the evidence, which consists of a number of exhibits submitted by both appellant and respondent and parol testimony of former intendants, councilmen, officers, and citizens of appellant, very obviously discloses that appellant has failed to establish by a preponderance or the testimony that the strip of land involved was ever dedicated to the use of the public. Appellant's evidence establishes nothing more than that at times people have parked their automobiles and hitched their mules on this strip of land, and the present intendant of appellant, without reservation, admits that he thought it was private property. On the other hand, respondent's evidence shows that the land was for a long time a thick growth of woods, and even after it was deforested it was not used by the general public as a regularly traveled route; that at one time almost upon the spot where respondent erected his building an enormous tank had been buried for the purpose of storing oil; that posts had been erected in order to prevent the public from using this land and to these very posts the people had hitched their mules and horses. It was further shown that a large pair of wagon scales had been placed upon this strip of land by some private enterprise located in Estill, and that refuse, consisting of scrapped automobiles and other waste material, had been placed thereon.

Now, in order to establish title by dedication in cases where there had been no express gift of the land involved, it is incumbent on the party asserting that a dedication exists to show that the conduct of the owner, relied on to establish it, clearly, convincingly, and unequivocally indicates, expressly or by plain indication, a purpose or intention to create a right in the public to use the land adversely to him and as of right.

In the case of Seaboard Air Line R. Co. v. Town of Fairfax, 80 S.C. 414, 61 S.E. 950, 956, Mr. Chief Justice Pope, speaking for this court, quoting with approbation from 13 Cyc. at page 476, said: "Dedications being an exceptional and a peculiar mode of passing title to interest in land, the proof must usually be strict, cogent, and convincing, and the acts proved must not be consistent with any construction other than that of a dedication."

Again, in the case of Grady et al. v. City of Greenville et al., 129 S.C. 89, 123 S.E. 494, 495, 497, we find: "It is of the essence of a dedication that the owner has consented, permanently, to abandon the land and, whatever the nature of the acts relied on to create a dedication, the intention to dedicate must be clearly and unequivocally manifested. 18 C.J. 43, § 16; Id., 52, § 33."

Measured by the canons of the law as declared and applied by this court, we are satisfied that the evidence adduced by appellant fails to establish a dedication; therefore appellant's exceptions 1, 2, 3, and 4 cannot be sustained.

Exception 5 imputes error to the trial judge for having refused to charge the jury, based on the holding of the North Carolina Supreme Court in the case of Collins v. Asheville Land Co., 128 N.C. 563, 39 S.E. 21, 83 Am.St.Rep. 720, the following request: "Where an improvement company laid off lands into numbered city lots and streets, making a plat thereof, and sold lots marked and...