Whaley v. Stevens
| Decision Date | 26 April 1884 |
| Citation | 21 S.C. 221 |
| Parties | WHALEY v. STEVENS. |
| Court | South Carolina Supreme Court |
OPINION TEXT STARTS HERE
1. The distinction between a right of way in gross, and one appurtenant, is marked and important, the former being a personal privilege which dies with the possessor, while in the latter it inheres in the land to which it is appurtenant, is essentially necessary to its enjoyment, and passes with it; and a right of way appurtenant must have a terminus on the land to which appurtenant.
2. Plaintiff alleged a right of way from a public road bounding his plantation across defendant's lands to a boat landing, and that the right of way was for the use of plaintiff's plantation and those connected with it. Held, that this was an allegation of a right of way in gross.
3. An amendment to the complaint by inserting an allegation that the right of way begins on plaintiff's land, would substitute a claim of a right of way appurtenant for that of a right of way in gross, and so substantially change the claim. Such amendment, therefore, cannot be allowed.
Before COTHRAN, J., Charleston, March, 1883.
The opinion sufficiently states the case.
Messrs. Simonton & Barker for appellant.
Mr. Charles Inglesby contra.
The opinion of the court was delivered by
The plaintiff seeks, by this action, to recover damages for the obstruction of a private way which he claims to be entitled to over the land of the defendant, and also to obtain an order restraining the defendant from continuing such obstruction. It will be difficult, if not impossible, to make an intelligible statement of the facts of the case, without reference to the diagram incorporated in the record, which cannot be introduced here, but which should be embraced in the report of the case. But from the view which we take, it will not be necessary to go fully into the facts of the case.
The plaintiff is the owner of a plantation of John's Island known as ““Caneslatch,” which was devised to him by his father, Wm. S. Whaley, who died in July, 1872, and the defendant is the owner of another plantation on said Island known as “Seven Oaks,” which he acquired by purchase from John H. Screven and wife in 1853. Caneslatch plantation originally lay to the west of the public road to John's Island Ferry, and separated from said road by a portion of Seven Oaks plantation, which lay mainly to the east of said road, between it and Stono River, but extended across said road and joined Caneslatch. Soon after the defendant bought Seven Oaks, and in the same year, he conveyed 300 acres of it lying west of the public road to the plaintiff's father, thus leaving all of the Seven Oaks plantation retained by him lying east of the public road, except the portion designated on the diagram “pine land,” on the west side of the road.
The plaintiff, in his complaint, after alleging that he was the owner of Caneslatch plantation, “containing about 600 acres of land, bounding on the east on a public road on said Island,” proceeds to allege “that the said plaintiff had a right of way, by means of a road leading from the said public road over the adjoining land of the said defendant, known as the Seven Oaks plantation, to a creek leading into the said Stono River, with horses, carts, carriages, and other vehicles; and further had the right to keep at the landing on said creek such boat or boats as he might desire, and that the right of way was for the use of the said Caneslatch plantation and those connected with it.” The defendant in his answer admits that plaintiff is the reputed owner of Caneslatch plantation, “but he denies that he had a right of way by means of a road leading from the public road which bounds the said plantation, over the adjoining land of the defendant, known as the Seven Oaks plantation, to a creek leading into Stono River, * * and he denies that the plaintiff had the right to keep at the landing on said creek such boat or boats as he might desire, and he denies that the right of way, or any right of way, was for the use of the said Caneslatch plantation and those connected with it,” &c.
The issue thus distinctly presented by the pleadings was whether the plaintiff was entitled to a right of way leading from the public road which constitutes the eastern boundary of Caneslatch plantation to the creek which empties into Stono River.5
A right of way may be in gross, or it may be appendant or appurtenant to land, and the distinctions between the two kinds of rights are very marked and important. In the former, it is a mere personal privilege, which dies with the person who may have acquired it; while in the latter it inheres in the land to which it is appurtenant, is essentially necessary to its enjoyment, and passes with it. An essential...
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Brasington v. Williams
... ... recognized right, but did not attempt to deny the existence ... of the right itself. In the case of Whaley v ... Stevens, 21 S.C. 221, the court held that the complaint ... was demurrable upon the ground that it did not state that the ... prescriptive ... ...
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Johnston-Crews Co. v. Folk
...executed, but not recorded until after the debts were contracted. The point cannot be better illustrated than by the case of Whaley v Stevens, 21 S.C. 221. In that case plaintiff brought an action against the defendant for obstructing his right of way, and obtained a verdict. Upon appeal (2......
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Jennings v. Parr
...Ruberg v. Brown, 50 S. C. 398, 27 S. E. 873; Trumbo v. Finley, 18 S. C. 315; Hey ward v. Williams, 48 S. C. 565, 26 S E. 797; Whaley v. Stevens, 21 S. C. 221; Mason v. Johnson, 13 S. C. 20; Cleveland v. Cohrs, Id. 397; Nesbitt v. Cavender, 27 S. C. 1, 2 S. E. 702; Wallace v. Railroad Co., 3......
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Chick Springs Water Co. v. State Highway Department
...the consideration of the doctrine of res adjudicata involved in the case of Johnston-Crews Co. v. Folk, supra, the cited case of Whaley v. Stevens, 21 S.C. 221, is That was an action for obstructing a right of way. Plaintiff claimed a right of way in gross. The evidence pointed to a right o......