Earle v. Poat , 63 S.C. 439 ( 1902 )

I am unable to concur in the opinion prepared by Mr. Justice Pope in this case, in so far as it relates to the 6th, 7th, 8th and 9th exceptions. The rule undoubtedly is, that in order to acquire a private way by prescription, the user must be adverse to the owner of the soil. Rowland v. Wolfe, 1 Bail., 56; McKee v. Garrett, 1 Bail., 341; Golding v. Williams, Dudley, 94. This is also the rule in determining what is a "traveled place," under the statute regulating railroads. Hankinson v. Railroad, 41 S.C. 1. This is also the rule in reference to a public road through unenclosed woodland. Hutto v. Tindall, 6 Rich., 399. A difference was recognized as to the amount or character of evidence required to show an adverse use of land either as a private or public way, when the way was through unenclosed woodland on the one hand, or enclosed or cultivated fields on the other. In the former case, more positive acts of adverse use were required to establish the way by prescription than in the latter. Since in the latter the mere use of enclosed or cultivated lands by one not the owner was some evidence of an adverse use, but in all such cases the necessity for evidence of adverse use was recognized. I am unable to perceive any reason why a contrary rule should be applied to the acquisition of an alley in a city by the public by reason of twenty years use. In the case of Hutto v. Tindall, 6 Rich., 400, the Court said: "Public roads of any kind can be established only by public authority, or by dedication, or by long use, which though not strictly prescription, bears so close an analogy to it, that it may be expressed by that term. Less than twenty years use is insufficient to create either a public or a private road. The same period of prescription is applied to both kinds. From a use for that period of time a grant may be presumed. The presumption of a grant is founded on the acquiescence of the owner of the land in the exercise by the public or by an individual of a privilege inconvenient or injurious to the owner, or inconsistent with his exclusive right of property. A neighborhood road differs in its use from a private right of way in this only, that more persons pass along it. The track of the road is not generally of greater width; and the prejudice to the owner by the appropriation of a part of his land for the road and all other incidental inconveniences, attend upon a neighborhood road not less than upon a private right of way. If the injury or inconvenience be greater in the case of a neighborhood road than of a private way, that is an argument why stronger evidence should be required of the owner's acquiescence. When, therefore, in either case, the use of the way is the evidence from which a grant is to be presumed, the same evidence should be required in both cases." The Court, referring to the case ofState v. Sartor, 2 Strob., 66, said that "circumstances were shown which might give an adverse character to the use. The jury were instructed that as in the case of a private way, the mere use of a neighborhood road over woodland would not give a right; that the use must be adverse, accompanied by acts which show the way was claimed as a right and not by permission of the owner. On appeal from these instructions, the motion for new trial was dismissed." The Court then refers to the distinction drawn by Judge O'Neall, in State v. Sartor, supra, between the evidence from which a dedication to public use may be presumed and the evidence of a private right of way by prescription, and declares that such distinction is untenable. Then the Court uses this language, in which I heartily concur: "The presumption of a grant of way should be restrained by rules of evidence which may prevent its insidious operation. Too often a use commenced and continued in courtesy after the expiration of the prescribed time is claimed adversely and judicially established as a right. It is only a reasonable security to the landowner that he should be apprised of an adverse claim of a way over his land, before the use has matured into a right, whether the way claimed is a neighborhood road or a private way. No reason can be assigned why, in this respect, any distinction should be made between them." If, then, we are to adopt the test laid down by Judge O'Neall in State v. Sartor, supra, viz: "the general use by all persons for public purposes for an interrupted period of twenty years," it must be with the qualification made in the case of Hutto v. Tindall, that such use must be adverse, or, what is the same thing, under a claim of right to use for public purposes. In the case of Metz v. Metz, 48 S.C. 472, this Court held, that in order to presume a grant from twenty years possession, the possession must be adverse. In so far as the right of the public to an alley is sought to be established by presumption of a dedication arising from twenty years use, it would seem that such use should be adverse to the owner of the soil. I do not think the Circuit Court, by the use of the word "unmolested" in connection with the words "continuously for twenty years," in effect charged that the use by the public should be adverse; for it is manifest that a continuous and unmolested use for twenty years is not inconsistent with a continuous but permissive use for twenty years. For the purposes of this point, it may have been that the owner did not molest the public because the public only made such uses of the alley as did not materially interfere with the owner's uses of his own property, or only made such uses as were permitted by the owner in connection with his own private uses as owner. But the Circuit Court did not mean to charge that the use by the public should be adverse, for he, in the plainest possible language, made sharp and pointed for the purpose of leaving no doubt as to his meaning, charged the jury that such use by the public need not be adverse, as contended for by plaintiff's counsel, but that "it is sufficient, if the public used that road in the same place twenty years continuously." This necessarily took from the jury all inquiry as to whether the use by the public was adverse, under a claim of right, or was merely permissive and consistent with the owner's use.

For these reasons, I think that a new trial should be ordered.