Allen v. Fagan

6 S.C. 206, 1875 S.C. LEXIS 39

• Court: Supreme Court of South Carolina
• Decided: June 26, 1875
• Status: Published

Opinion

The opinion of the Court was delivered by

Willard, A. J.

The precise character of the evidence, the rejection of which by the Circuit Judge forms the subject of the principal exception, is not clearly presented.

It is to be assumed, however, that the facts intended by the appellant to be laid before the jury were substantially as follows: That a building had been for several years standing at the corner of Gervais and Gates streets, the point on which the respective deeds under which both plaintiff and defendants rely rest.

The object of offering this testimony is somewhat obscure, but it may have been either to fix the location by user or to aid in settling this conflict that existed between the surveys that were introduced in evidence, based, as we may assume, on evidence afforded by deeds or other records. It is also possible that it may have been intended as bearing upon the actual intent of the parties to the respective deeds as derived from all the attending circumstances.

As the record does not present to us the distinct object in view, nor the definite grounds on which the evidence was excluded, we have only to look into the case far enough to see whether, under any aspect of the case as presented, there is reasonable ground to assume that the evidence was pertinent to the issue.

In determining the true boundaries of a highway, evidence of user is generally an important element of the proofs. If that were of sufficient duration, it is conclusive, although the actual location differs from that intended as evidenced by deed or other matters of record. What duration of user, as a general rule, or under the circumstances of a particular case, may have been sufficient to fix the boundaries as against clear evidence afforded by deeds of records, we are not called upon to determine at the present time, as it does not appear that that question was discussed in the Circuit Court.

It does appear, as already stated, that there was a conflict between the surveys offered in evidence, supporting on the one hand and on the other the respective demands of the plaintiff and defendants. Under such circumstances, the proof of actual location, as defined by user, was clearly competent.

Whether we are bound to go to the extent to which the Court went in Falls Village W P. Co. vs. Tibbitts, (31 Conn., 165,) and declare that the parties must be presumed, in the absence of evidence of any other intention, to have meant by the terms of the deeds the actual location of the corner as determined by user, we need not here determine, for it does not appear that the question of presumed intent was discusssed or decided at the Circuit.

The case just cited, and that of Tibbitts vs. Eaton, (5 2 Me., 566,) which latter case applies the same idea in discovering the intention involved in a transfer by judicial process, both sanction the resort to the actual state of the occupation and user of a highway as a means of fixing its boundaries as between parties dealing with it as an existing fact.

The evidence of a building standing at the corner in question, conformably to the plaintiff’s demand, should have been admitted at all events. The effect of such evidence can only be properly determined when its nature is fully known.

There should be a new trial.

Moses, C. J., and Wright, A. J., concurred.