Fanning v. Stroman , 113 S.C. 495 ( 1920 )

January 26, 1920. The opinion of the Court was delivered by This was an action to recover damages resulting to the plaintiff from the obstruction, by the defendants, of a way leading over their lands to about 12 acres of land which the plaintiff had rented from one Tarrant; the damages extending over the years 1915, 1916 and 1917.

The demand in the complaint was not only for damages, but for an injunction pendente lite and for a permanent injunction restraining the defendants from obstructing the way.

After hearing of motion in the way of application for injunction before Judge Moore, who refused the same, and a demurrer to the complaint by Judge Townsend, who heard and overruled the same, but allowed the complaint to be amended, and later, allowed another amendment to the complaint, and after issue was finally joined, the answer of the defendants was a general denial, and set up that there had never been a public highway or neighborhood road, running over or across the lands, mentioned in the complaint, and that there was not nor had there ever been any road or path across their lands, dedicated to the public or any individual by grant, deed, prescription, or otherwise. The case was tried by Judge Bowman, and a jury, at Orangeburg, in June, 1918, when the jury found for the plaintiff $75 damages, and Judge Bowman made an order restraining the defendants from closing the road in question to travel.

After entry of judgment, defendants appeal, and by ten exceptions complain of error: In not granting a nonsuit. In not directing a verdict as asked for by the defendants. Error in Judge's charge. Error in submitting to the jury whether or not the road in question constituted an easement to plaintiff's 12 acres of rented land, as this question was not before the Court either in pleadings or proof.

The complaint alleged the obstruction of "a public highway or a public neighborhood road." The evidence of the plaintiff and his witnesses was directed to prove the obstruction of a neighborhood road only.

It is well settled by the decisions of this Court that the obstruction of a public road, or a neighborhood road, which the public has acquired the right to use, or the maintenance of nuisance, wherein the public generally is effected, must be by indictment, unless the party complaining alleges and proves some special damages to himself, wherein the neighborhood and public generally are not interested or affected.

The evidence in the case shows that the road in dispute was built by the father of the defendant, Jacob Stroman, across his land to the edge of the woods, and later extended by him to his fish trap in the swamp.

There is no effort to show that the road was dedicated and accepted as a public road, or that the plaintiff or the public ever worked on it. It leads from a public highway to a landing near Edisto River, and ends at the landing. It was used, up to the time of the obstruction, as a way to the landing for the purpose of getting shingles, fishing, fish fries, and picnics.

The whole evidence fails to show that the road in question was public, or that it was used by the public generally by all persons for public purposes, as a matter of right and not of favor, for an uninterrupted period of 20 years or more. Both termini of a road must be in a public highway or public place in order for the road to be a public road. This principle is of importance since the adoption of the stock law in the State, where fencing is done away with. The owner has a plantation road over his place. He allows his neighbors to use it, and the occasional stranger, as a matter of favor, and not of right; does not churlishly refuse to allow its use permissively, and not as a matter of right. Under these circumstances it cannot ripen into a public road, and under no circumstances can it do so, unless both termini are in a public highway or public place.

The road in question ends on the edge of a swamp, several hundred yards from the shingle landing, and is connected with the river through the swamp by a footpath. This cannot be construed as to constitute a terminus of a public road. The evidence here shows that the only persons who used the landing were three in number, in getting out and hauling shingles there, and used for fishing frolics and picnics. No other inference can be drawn from the evidence other than that the landing was private and not public, and that the road in question was private and not public. His Honor was in error in not granting nonsuit in the first instance, and in not granting a directed verdict in the second instance, as asked for by the defendants. These exceptions are sustained.

His Honor also was in error in submitting the question of private easement to the jury. The pleadings made no such issue. These exceptions are sustained. It is the judgment of this Court that the judgment be reversed, and complaint dismissed.

Judgment reversed.