Opinion
15447
July 22, 1942.
Before L.D. LIDE, Judge, Sumter County, September, 1941. Affirmed.
Suit by Mrs. Jessie M. Merrimon against Laura McCain for a preliminary mandatory injunction requiring defendant to remove an obstruction upon a right of way and to restrain interference with plaintiff's use thereof and for damages. Defendant filed a counterclaim. From an adverse decree, plaintiff appeals.
The order of Circuit Judge L.D. Lide, adopted as the judgment of the Court, follows:
Lucy A. Thomas (a colored woman) owned a parcel of land in the City of Sumter, fronting on Salem Avenue, upon a portion of which was her dwelling house, and adjacent thereto was an alley about ten feet in width extending from the street to the rear of her premises. This alley is sometimes referred to by counsel as a roadway or driveway; and the rights of the parties with reference to the same is the principal matter of controversy herein.
In the year 1904, Lucy A. Thomas conveyed to her son Thomas Thomas for $5.00 and love and affection a vacant lot on her parcel of land fronting on Salem Avenue 33 feet, and extending back in the same width 46 feet. Shortly thereafter Thomas Thomas constructed a dwelling house on this lot which extended clear across the front of his lot and appears to have occupied substantially all of it. Immediately adjacent to this lot is the alley above mentioned.
In the year 1916 Thomas Thomas acquired from his mother, Lucy A. Thomas, another vacant lot immediately to the rear of the lot conveyed to him in 1904. The latter conveyance was also for $5.00 and love and affection. This lot was described as being 33 feet, more or less, in width and extending back 84 feet, more or less.
On the same date that Thomas Thomas acquired the rear lot from his mother he mortgaged the entire property to A.S. Merrimon, Esq., and as the result of the foreclosure of this mortgage many years later the plaintiff, Mrs. Jessie M. Merrimon, acquired title to the property on November 8, 1934.
In the meantime, to wit, on March 8, 1918, Lucy A. Thomas conveyed to her son-in-law Seigmond McCain the property on which her residence was situate (the same being her original parcel less the two lots conveyed to Thomas Thomas as above stated). Seigmond McCain died December 28, 1939, and his wife Laura McCain, the defendant above named (daughter of Lucy A. Thomas), acquired the property under the will of her husband.
This action was commenced by Mrs. Jessie M. Merrimon against Laura McCain on or about the 8th day of June, 1940, and the complaint alleges the ownership by Mrs. Merrimon of the Thomas Thomas property consisting of two lots which taken together form one lot alleged to be of "a uniform width of thirty-three (33) feet, more or less, and a uniform depth of one hundred and thirty-one and one-half (131 1/2) feet, more or less." And the complaint further alleges that the plaintiff is the owner of an easement and right-of-way appurtenant to her land for purposes of ingress and egress from Salem Avenue in and over the land of the defendant adjacent thereto, in that there is a dwelling house on plaintiff's land which extends entirely across that portion of her land which fronts on Salem Avenue and hence there is no means of ingress or egress with wagons, automobiles or other vehicles except by the easement and right-of-way claimed, which is alleged to be necessary to the reasonable use and enjoyment of plaintiff's land. And it is further alleged that the roadway constituting this right-of-way existed at the same identical location it now has at the times of the conveyances by Lucy A. Thomas to Thomas Thomas of the land now owned by the plaintiff, and (quoting from the complaint) "had so existed and been used in connection with all of the said land originally owned by the said Lucy A. Thomas for many years prior to the said conveyances, and it has since been continuously used as a necessary means of ingress and egress to and from the land now owned by the plaintiff." It is further alleged that the defendant had recently in disregard of plaintiff's rights willfully and unlawfully erected a board fence "completely obstructing the said easement and right-of-way in two separate places and depriving the plaintiff of the use thereof," to her damage actual and punitive "for the injury already thus committed" in the sum of $500.00; and that the defendant threatened to continue such obstruction.
The prayer of the plaintiff is that a preliminary mandatory injunction be issued by the Court requiring the defendant to remove the obstruction, and restraining her from interfering with plaintiff's use of the easement and right-of-way, during the pendency of the action; that the injunction be made permanent; and for the sum of $500.00 damages, etc.
Upon the filing of this complaint duly verified and supported by certain affidavits Hon. Philip H. Stoll, Judge of the Third Circuit, granted an interlocutory mandatory injunction dated June 8, 1940.
The defendant in due time answered denying plaintiff's right to the alleged easement and right-of-way, and also setting up by way of counterclaim that the dwelling house erected by plaintiff's predecessor in title encroaches upon defendant's lot to the extent of three feet, more or less; and a reply to the counterclaim containing a general denial as well as an affirmative defense was duly filed.
The case came on to be tried before the undersigned as presiding Judge and a jury at the Fall term, 1941, of the Court of Common Pleas for Sumter County. It should be stated here that it appears that counsel for the defendant had moved the Court in due time for an order submitting certain issues of fact to the jury, and the motion was granted by Hon. J. Henry Johnson, presiding Judge, on October 10, 1940. While this order was not binding upon me, I did submit issues to the jury somewhat similar to the ones referred to in the order of Judge Johnson.
The following issues were submitted by me to the jury, and they answered the same as indicated below:
1. Has plaintiff, Jessie M. Merrimon, an easement and right-of-way over the lot of defendant, Laura McCain? No.
2. Has the alleged easement and right-of-way been at the same identical location since the purchase of the lot (now owned by plaintiff), by Thomas? Yes.
3. Does any portion of the dwelling house of plaintiff extend over the original line of defendant's lot? Yes.
4. If so, has plaintiff acquired title to such portion of defendant's lot upon which the dwelling house is situate by adverse possession? No.
5. What damage, if any, is plaintiff entitled to recover against the defendant? None.
Immediately upon the return of the verdict on September 30, 1941. Counsel for the plaintiff made a motion to set aside the adverse answers of the jury, etc., and the motion was by express consent of counsel for both parties marked heard, and was argued before me at the close of the term of the Court of General Sessions for Sumter County on November 4, 1941, and taken under advisement. And counsel for the respective parties have furnished me with elaborate and carefully prepared briefs which I have found quite helpful.
The motion on behalf of the plaintiff is three-fold, to wit: (1) to set aside the unfavorable answers of the jury; (2) to permit the plaintiff to introduce certain additional evidence and to refer the case to the Master except as to the issue of damages; and (3) that if the case be not referred a decree be granted adjudging the plaintiff to be the owner of the easement in question and permanently enjoining the defendant with reference thereto and dismissing the counterclaim.
Counsel for the plaintiff in his brief contends that the plaintiff is the owner of the easement in question for three reasons, to wit: (a) that it is an easement appurtenant to her property (aside from and in addition to her ownership thereof as a way of necessity); (b) that she is the owner of the easement by implied grant as a way of necessity; and (c) that she is the owner of the easement by prescription based on adverse use by herself and her predecessors for more than twenty years. With reference to the first two of these specifications the evidence is really uncontradicted and these are therefore issues of law rather than of fact.
Stating the matter another way, the plaintiff claims that Thomas Thomas acquired by implication of law a right-of-way over the lands of Lucy A. Thomas, that is to say, a right to use the alley on her lands as an easement appurtenant to the land she conveyed to him; that while this easement is not specifically mentioned in his deed or deeds it is covered by the general term "appurtenances," and even without the use of that word would pass as a matter of law; and that Thomas Thomas was also entitled to the easement as a way of necessity; and further, that plaintiff owns the easement by prescription.
The matter now under discussion is covered by two excellent annotations in 34 A.L.R., 233 and 100 A.L.R., 1321, relating to a roadway or driveway used at the time of severance of a tract (by conveyance of a part thereof), as a visible or apparent easement. Especially in the former annotation will be found a great number of authorities relating to the question of whether or not the grant of a visible or apparent easement will be implied in the absence of necessity. Cited in support of the doctrine that on severance of a tract of land there cannot be an easement of way by implied grant over other lands of the grantor which is not a way of necessity is the South Carolina case of Screven v. Gregorie, 8 Rich., 158 64 Am. Dec., 747. On the other hand, a number of cases are cited from various other jurisdictions sustaining an implied easement upon the basis of a less stringent rule. But my conclusion is that most of the cases are not fundamentally inconsistent, the real difference between them being whether a liberal or strict construction should be given to the word "necessity." In our own case of Screven v. Gregorie, supra, it was held that mere inconvenience would not be sufficient and that the necessity must be actual but need not be absolute and irresistible. And in the somewhat recent case of Brasington v. Williams, 143 S.C. 223, 141 S.E., 375, the Court in a learned opinion by Mr. Justice Cothran lays down the same principle, to wit, that the necessity must be actual, real and reasonable as distinguished from inconvenient, but it need not be absolute and irresistible. But the element of necessity is essential.
In 1904 when Lucy A. Thomas conveyed to Thomas Thomas the front lot on which he subsequently erected his dwelling house there was no necessity whatever for the alleged right-of-way. The lot was vacant and fronted on Salem Avenue. And if he had acquired at the same time the rear lot which was also vacant I cannot conceive how any contention could possibly be made that the right-of-way was appurtenant or necessary in any sense. Indeed the plaintiff's theory of necessity arises wholly out of the fact that Thomas Thomas himself constructed a building entirely across the front lot so as to leave no room for a driveway to the rear of his own property and hence it is contended that when Lucy A. Thomas conveyed the rear lot to him she was bound to give him a right-of-way because of necessity. It seems to me that this bare statement of the claim sufficiently refutes it. A grantee cannot by his own voluntary act place an obligation on the grantor with reference to the remainder of his or her own land. In other words, there can be no element of necessity, if the necessity is created by the grantee himself. And of course it cannot be questioned here that Mrs. Merrimon is bound by what Thomas Thomas did. In other words, she does not acquire any better title than he had in this respect.
The interesting Michigan case of Burling v. Leiter, 272 Mich., 448, 262 N.W., 388, 393, reported in 100 A.L.R., 1312, appears to be very much in point, and I quote the following from the opinion in this case: "One owning land has a right to use it as he sees fit, and defendants and their grantors had a right to build the house in question where they built it. But they can gain no rights in the lands and premises of the plaintiff by reason of having built a house entirely across the lands and premises belonging to them, thereby excluding themselves from passing from the lands in front of the house to the lands in back of the house except through the house."
The following quotations from 19 C.J., 926, also seem to me to be sound and in point:
"A way be necessity can be implied only when the necessity existed at the time of the grant. In other words, the necessity is to be determined from the conditions existing at the time of the conveyance.
"As a consequence of the rule stated this necessity must not be created by the party claiming the right of way. A grantee cannot so change the uses of land as to convert a way of convenience into a way of necessity. Nor can he create such necessity by subdividing and selling separate portions thereof." See, also, 28 C.J.S., Easements, § 35.
My conclusion is that as a matter of law, under the undisputed testimony here, the plaintiff did not acquire the alleged right-of-way by implied grant as a visible or apparent easement appurtenant to the property because reasonably necessary, or as a way of necessity.
The question as to whether or not the plaintiff, acquired the alleged right-of-way by prescription was essentially one of fact for the jury, and there was testimony which would have reasonably justified the jury in determining this issue in favor of the plaintiff. On the other hand, there was testimony from which the jury might reasonably have concluded, as they did conclude, that such right-of-way was not so acquired, especially because of certain evidence tending to show that the alleged use thereof was not adverse during the whole period prescribed by law but rather was permissive. It is quite true, as argued by counsel for the plaintiff, and I so charged the jury, that under certain circumstances the use will be presumed to be adverse, but of course such a presumption is rebuttable. And it should be noted that there was some testimony in behalf of the defendant, in substance, that so long as the lot or lots in question were owned by Thomas Thomas, who was the son of the original owner, Lucy A. Thomas, he and his tenants were permitted for convenience to use at times the alley or driveway on the lot of his mother and brother-in-law, but that this was a matter of family courtesy, so to speak; and there was also testimony to the effect that Thomas Thomas had during the period of his ownership of the land disclaimed any right to the use of the driveway I am therefore of opinion that I would not be justified in setting aside or disregarding the verdict of the jury to the effect that the plaintiff is not the owner of the easement or right-of-way over the land of the defendant by prescription. I informed counsel for the respective parties (in the absence of the jury, of course) that I would submit the issues to the jury for the enlightenment of the Court, with some qualification perhaps as to the issue of damages. I must say, however, that upon further reflection I am of opinion that since the defendant denied the plaintiff's title to the right-of-way in question this is a legal issue upon which the finding of the jury would be binding. Southern Ry. v. Howell, 89 S.C. 391, 71 S.E., 972, Ann. Cas., 1913-A, 1070; Lipscomb v. Littlejohn, 63 S.C. 38, 40 S.E., 1023.
However, even if the verdict should be deemed as not binding but only to be considered with reference to the enlightenment of the Court, I would still be of opinion that the verdict of the jury on this point should be sustained, for as already indicated this was in my judgment a matter upon which the findings of the jury would be entitled to the greatest respect. And I endeavored to charge the law to them as fully and carefully as I could, my charge being based in part on the recent case of Poole v. Edwards, 197 S.C. 280, 15 S.E.2d 349, which I had before me, and from which I quoted some of the applicable principles of law. Indeed, strictly speaking, the charge was perhaps more favorable to the plaintiff than she was entitled to because I also charged the law relating to implied and appurtenant easements arising from necessity.
But I am of opinion that the verdict of the jury in so far as it relates to the counterclaim should be (and is hereby) set aside. It appears from the evidence that in the year 1926 the building on the lot of Thomas Thomas was destroyed or partially destroyed by fire, but that it was rebuilt on the same foundation, and there was some testimony that the "bay" window of the reconstructed building perhaps projected a few inches over the line (not three feet, more or less, as alleged). But I am persuaded that the evidence was by no means sufficient to establish the precise location of the line, and hence that the jury could not reasonably conclude that there was in fact any encroachment (to say nothing of the appropriate application of the principle of estoppel). In this connection, it should be said that the additional testimony which the plaintiff now seeks to introduce relates particularly to the counterclaim, but the same could not be considered after-discovered evidence. The counterclaim must be dismissed; and it is so ordered, adjudged and decreed.
Plaintiff's motion in all other respects is overruled; and it is further
Ordered, adjudged and decreed, that the plaintiff has no easement or right-of-way over the defendant's land or any portion thereof, and that the interlocutory mandatory order of injunction heretofore issued herein, dated June 8, 1940, be, and the same is hereby, vacated and dissolved; and that the complaint be, and the same is hereby, dismissed with costs.
Mr. A.S. Merrimon, of Sumter, Counsel for Appellant, cites: As to Easement passing by Implied Grant: 9 R.C.L., 755; 19 C.J., 914; 9 R.C.L., 757; 142 S.C. 223, 141 S.E., 375; 5 Rich., 405; 170 N.C. 305, 87 S.E., 224; 220 F., 80, 135 C.C.A., 648; 56 Ohio St., 463, 47 N.E., 653; 1 Va. Dec., 141; 49 L.R.A. (Ky), 417, and authorities therein; Annotations to 34 Utah, 116, 26 L.R.A. (N.S.), 315. As to "degree of necessity" in connection with Easements: 9 R.C.L., 763-765; 19 C.J., 919; 19 L.R.A. (N.Y.), 99; 210 Mass. 402, 97 N.E., 54, 38 L.R.A. (N.S.), 882; 143 S.C. 223, 141 S.E., 375. As to deed in statutory form carrying Easement: 143 S.C. 223, 141 S.E., 375; 185 S.C. 489, 194 S.E., 326; 115 Ga. 77, 41 S.E., 585. As to Respondent taking title subject to easement previously acquired by Appellant: 143 S.C. 223, 141 S.E., 375; 26 L.R.A. (N.S.), 315 (Utah), Annotations. As to "necessity" being determined by conditions at time of conveyance: 9 R.C.L., 755; Jones on Easements, Sect. 129; 19 C.J., 919, 920; 20 Ohio Appeals, 442, 152 N.E., 734; 181 Iowa, 965, 165 N.W., 216; 54 Me., 276, 89 Am. Dec., 748; 89 Ohio St., 311, 106 N.E., 46; 134 N.Y., 385, 32 N.E., 18, 19 L.R.A., 99; 54 N.J. Eq., 270, 33 A., 794. As to Easement being "way of necessity" appurtenant to lot: 143 S.C. 223, 141 S.E., 375; 72 W. Va., 68, 78 S.E., 233, 46 L.R.A. (N.S.), 156; 107 Conn., 32, 139 A., 348; 84 A., 743, 118 Md., 491; 2 Hill, 642, Note; 185 S.C. 489, 194 S.E., 326. As to Easement by Prescription: 197 S.C. 280, 15 S.E.2d 349. As to effect on Court of verdict of Jury in Equity Case: 103 S.C. 299, 87 S.E., 542; 27 S.C. 623, 3 S.E., 221; 5 S.C. 411.
Mr. Wayne Law Clifton, of Sumter, Counsel for Respondent, cites: As to Easement being appurtenance: 19 C. J., 914; 5 Rich., 405; 170 N.C. 305, 87 S.E., 224; 19 C. J., 868, Sect. 6; 19 C.J., 689, Sect. 7; 272 Mich., 448, 455, 262 N.W., 388. As to "way of necessity": 19 C.J., 926, Sect. 120 and Sect. 121; 6 Mo., 624, 633, 35 Am. Dec., 456; 200 Ky., 478, 34 A.L.R., 230 (at p. 732, 34 A.L. R.); 14 Mass. 49, 55, 7 Am. Dec., 188. As to Easement by Prescription: 37 C.J., 282, Sect. 176; 37 C.J., 283, Sect. 177; 19 C.J., 898, Sect. 75; 19 C.J., 884, Sect. 43.
July 22, 1942.
After a careful study and consideration of the record in this case, in the light of the issues made by the exceptions, we are of the opinion that the Circuit Court in its decree correctly decided the case. We adopt that decree as the judgment of this Court. Let it be reported.
Judgment affirmed.
MR. CHIEF JUSTICE BONHAM, MESSRS. ASSOCIATE JUSTICES FISHBURNE and STUKES, and CIRCUIT JUDGE G. DEWEY OXNER, ACTING ASSOCIATE JUSTICE, concur.