Wyatt v. Cely
| Decision Date | 12 August 1910 |
| Citation | 68 S.E. 657,86 S.C. 539 |
| Parties | WYATT v. CELY. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Greenville County; C. O Featherstone, Judge.
Action by John G. Wyatt against Alice M. Cely. Judgment for plaintiff, and defendant appeals. Affirmed.
B. A Morgan, for appellant. Cothran Dean & Cothran, for respondent.
This action was brought to enjoin the obstruction of an alley in which plaintiff claimed an easement on the grounds: (1) That it was appurtenant to his lot, because it was substituted for another way which had been dedicated to the use of his lot; (2) by prescription in himself and his grantors; (3) by prescription in the public.
The following issue was submitted to a jury: Is the plaintiff entitled to an easement in the land in dispute as claimed in the complaint? To which the jury answered "Yes." Thereupon, a perpetual injunction was issued.
To clearly understand some of the questions presented by the appeal, it will be necessary to have in mind the location and description of the lots affected by this litigation, and the origin and history of the alley. About the year 1876, a lot in the city of Greenville, owned by the heirs of John McKay was subdivided and sold for partition. It was a parallelogram in shape, fronting 109 feet on Pendleton street, which was on the south, and extending back to Rhett street, on the north. For the purposes of the sale, it was divided into four lots and an alley, and platted accordingly. The alley was eight feet wide and was laid off on the eastern edge of the lot and extended from Pendleton to Rhett street. Three lots were laid off on Pendleton street, each fronting thereon 33 2/3 feet and extending back 100 feet. These were numbered on the plat from west to east 8, 9, and 10; number 10 being next to the alley. The balance of the original lot was numbered 11. There was testimony tending to show that the lots were sold with reference to this plat.
At the time of the sale, there was a house on lot No. 10, which covered nearly the whole width of that lot and extended four feet into the alley. This alley therefore was never opened. The house was subsequently destroyed by fire, being owned at the time by J. A. Speegle. The plaintiff contended that an alley eight feet wide on the west side of lot No. 10 was substituted for the one shown on the plat on the east side of that lot. This substituted alley extends back only 100 feet to the back line of the lots fronting on Pendleton street and there connects with an alley which runs east to River street. The defendant now owns lot No. 10, and was proceeding to build thereon and obstruct the alley, when this action was brought.
The defendant offered in evidence a deed, dated May 10, 1883 from Frank Hammond (who owned the property east of the McKay property) to J. A. Speegle, in which he recites that he had that day sold a lot to Speegle, and grants him a way from said lot to Rhett street, provided J. M. McGhee, who was then the owner of lot No. 10, would not consent that an alley be opened through said lot to Pendleton street. The deed was excluded on the ground that it was res inter alios acta, and amounted to nothing more than the declarations or admissions of Hammond and Speegle that there was no alley over lot No. 10 at that time. The court further held that the record of that deed was not competent as evidence to show notice to plaintiff that no alley existed at that time. The deed was properly excluded for the reasons stated. We do not see how the record of this deed could be notice to plaintiff of the declarations therein contained. The title to this lot was not derived through that deed and could in no wise be affected by the recitals therein. But Mr. Hammond, the maker of the deed, did testify, without objection, to everything that could have been inferred from the recitals of the deed. He said he went to McGhee, and asked him to put an alley through there; that he at first consented, but afterwards declined; that he...
To continue reading
Request your trial