The opinion of the court was delivered by
Mb. Chief Justice MoIveb.
This action was brought for the purpose of enjoining the defendants from entering upon certain premises in the town of Beaufort, claimed by the plaintiff, and from pulling down, destroying, or otherwise injuring the buildings standing on said premises. By consent, the testimony was taken by a special master and reported to the court, and the case came on for hearing before his honor, Judge Norton. After the pleadings were read, the defendants interposed an oral demurrer, upon the ground that the facts stated in the complaint were not sufficient to constitute a cause of action. The demurrer was overruled, and the defendants excepted, giving oral notice of appeal. Thereupon the Circuit Judge stated that defendants were entitled to a stay, but the defendants, waiving this right, consented to proceed, and the case was heard upon the merits. Subsequently the judge rendered his decree, granting a perpetual injunction as prayed for, and defendants appealed as well from the order overruling their demurrer as from the final judgment granting the injunction.
To determine the question as to the demurrer, it will be necessary to consider the allegations of the complaint, which are substantially as follows: The plaintiff, complaining of the defendants above named, a municipal corporation created by the laws of this State, alleges:
1st. That on the 1st day of January, 1880, and for many years prior thereto, Martha A. Barnwell was seized and possessed of ‘ ‘all that certain lot or lots of land, situate in the town of Beaufort,” Sue., “and continued in adverse, quiet, and peaceable possession of the same” until the 4th of August, 1890, when she sold and conveyed the said premises to the [331]*331plaintiff, who has been ever since seized and possessed of the same.
2d. That plaintiff and his grantors have been in adverse possession of said premises prior to and ever since the year 1867, the same having been enclosed by a fence during all that time; and during all that time no street or alley-way has been used or opened through said premises.
3d. That on the 1st of October, A. D. 1890, the defendant Collins was intendant, and the defendant Christensen and others (naming them) were wardens, and as such the said intendant and wardens constituted, and still are, the “Town Council of Beaufort.”
4th. That on the 18th of October, 1890, the plaintiff was erecting a dwelling house and other structures upon said premises, which work and the materials used cost him one hundred and fifty dollars.
5th. That on or about the 18th of October, 1890, John Oreen was marshal of the town of Beaufort, the agent and employee of the defendants, and as such did on that day, at the direction, and in accordance with the instructions, given to him by the defendants, enter upon said premises, and ordered the workmen employed by plaintiff in erecting said building to discontinue their work, and threatened to arrest them if they should proceed.
6th. That on the 28th of October, 1890, the said Collins, as intendant, informed plaintiff that he objected to the erection of said buildings, because he claimed the same to be on an alley, which was the property of the town of Beaufort, and threatened to enter upon said premises and pull down and remove said buildings, under and by virtue of the powers conferred upon the defendants in relation to streets.
7th. That if said threats are carried out, the damage to plaintiff will be irreparable—that a number of suits would be necessary to recover damages sustained by him.
Wherefore, an injunction is demanded, restraining defendants from pulling down and removing said buildings, and from committing any other trespass upon the said premises.
[332]*3321 [331]*331The first ground upon which the demurrer was rested is that it does not state the name of the municipal corporation of which [332]*332the defendants are alleged to be officers. We do not think there is anything in this purely technical objection.. Neely v. Yorkville, 10 S. C., 141. If there was any error in fact in stating the correct name of the municipal corporation, such error would not constitute any ground for demurrer, but should be corrected by some other mode of proceeding.
2 The next ground upon which the demurrer is rested seems to be that there is no sufficient allegation that the acts complained of were done or threatened by any officer of the munici[Dal corporation. We do not think this ground can be sustained; for it seems to us that the allegations contained in the complaint, if true, are sufficient to show that the acts complained of were done by the executive officer of the town council under the authority of that body, and if there is any want of particularity or distinctness in the statements found in the complaint, that should be remedied by a motion to make the allegations more definite and distinct, and not by a demurrer.
3 The next ground relied upon to sustain the demurrer is that the plaintiff’s claim of title rests only upon adverse possession, and this cannot confer title as against the public, represented by the municipal corporation of which defendants are the officers. If the complaint had set forth the fact that the premises in question originally constituted one of the public streets or alleys of the town of Beaufort, to which the plaintiff had acquired a title by adverse possession, then it would be necessary for us to decide, under the demurrer, the very grave and important question, whether title can be acquired by a citizen against the public by adverse possession. But it will be observed that there is no such allegation in the complaint. It does not appear from anything there stated that the parcel of land, which is in question, ever was either a street or alley of the said town. The most that does appear is that one of the defendants, as intendant, “informed plaintiff that he objected to the erection of said buildings, because he claimed them to be on an alley, which was the property of the town of Beaufort.” There is no admission of the fact, either express or implied, in the complaint, that the parcel of land to which the [333]*333plaintiff claimed title by adverse possession ever was a street or alley of the said town; and hence the question as to whether title can be acquired to one of the public streets or alleys of a town by adverse possession, does not properly arise under the demurrer. We do not think, therefore, that there was any error in overruling the demurrer.
4 Turning, then, to the errors imputed to the Circuit Judge in rendering his decree, after hearing all the testimony and argument of counsel, it seems to us that, passing by the several errors imputed to the Circuit Judge in his findings of fact, which, under the view we take of the case, it would be improper for us now to consider, the fundamental inquiry is, whether the judge erred in holding that title could be acquired to a public street or alley in a town by ten years’ adverse possession, and whether twenty years’ non-user of such a highway is an abandonment of it.
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The opinion of the court was delivered by
Mb. Chief Justice MoIveb.
This action was brought for the purpose of enjoining the defendants from entering upon certain premises in the town of Beaufort, claimed by the plaintiff, and from pulling down, destroying, or otherwise injuring the buildings standing on said premises. By consent, the testimony was taken by a special master and reported to the court, and the case came on for hearing before his honor, Judge Norton. After the pleadings were read, the defendants interposed an oral demurrer, upon the ground that the facts stated in the complaint were not sufficient to constitute a cause of action. The demurrer was overruled, and the defendants excepted, giving oral notice of appeal. Thereupon the Circuit Judge stated that defendants were entitled to a stay, but the defendants, waiving this right, consented to proceed, and the case was heard upon the merits. Subsequently the judge rendered his decree, granting a perpetual injunction as prayed for, and defendants appealed as well from the order overruling their demurrer as from the final judgment granting the injunction.
To determine the question as to the demurrer, it will be necessary to consider the allegations of the complaint, which are substantially as follows: The plaintiff, complaining of the defendants above named, a municipal corporation created by the laws of this State, alleges:
1st. That on the 1st day of January, 1880, and for many years prior thereto, Martha A. Barnwell was seized and possessed of ‘ ‘all that certain lot or lots of land, situate in the town of Beaufort,” Sue., “and continued in adverse, quiet, and peaceable possession of the same” until the 4th of August, 1890, when she sold and conveyed the said premises to the [331]*331plaintiff, who has been ever since seized and possessed of the same.
2d. That plaintiff and his grantors have been in adverse possession of said premises prior to and ever since the year 1867, the same having been enclosed by a fence during all that time; and during all that time no street or alley-way has been used or opened through said premises.
3d. That on the 1st of October, A. D. 1890, the defendant Collins was intendant, and the defendant Christensen and others (naming them) were wardens, and as such the said intendant and wardens constituted, and still are, the “Town Council of Beaufort.”
4th. That on the 18th of October, 1890, the plaintiff was erecting a dwelling house and other structures upon said premises, which work and the materials used cost him one hundred and fifty dollars.
5th. That on or about the 18th of October, 1890, John Oreen was marshal of the town of Beaufort, the agent and employee of the defendants, and as such did on that day, at the direction, and in accordance with the instructions, given to him by the defendants, enter upon said premises, and ordered the workmen employed by plaintiff in erecting said building to discontinue their work, and threatened to arrest them if they should proceed.
6th. That on the 28th of October, 1890, the said Collins, as intendant, informed plaintiff that he objected to the erection of said buildings, because he claimed the same to be on an alley, which was the property of the town of Beaufort, and threatened to enter upon said premises and pull down and remove said buildings, under and by virtue of the powers conferred upon the defendants in relation to streets.
7th. That if said threats are carried out, the damage to plaintiff will be irreparable—that a number of suits would be necessary to recover damages sustained by him.
Wherefore, an injunction is demanded, restraining defendants from pulling down and removing said buildings, and from committing any other trespass upon the said premises.
[332]*3321 [331]*331The first ground upon which the demurrer was rested is that it does not state the name of the municipal corporation of which [332]*332the defendants are alleged to be officers. We do not think there is anything in this purely technical objection.. Neely v. Yorkville, 10 S. C., 141. If there was any error in fact in stating the correct name of the municipal corporation, such error would not constitute any ground for demurrer, but should be corrected by some other mode of proceeding.
2 The next ground upon which the demurrer is rested seems to be that there is no sufficient allegation that the acts complained of were done or threatened by any officer of the munici[Dal corporation. We do not think this ground can be sustained; for it seems to us that the allegations contained in the complaint, if true, are sufficient to show that the acts complained of were done by the executive officer of the town council under the authority of that body, and if there is any want of particularity or distinctness in the statements found in the complaint, that should be remedied by a motion to make the allegations more definite and distinct, and not by a demurrer.
3 The next ground relied upon to sustain the demurrer is that the plaintiff’s claim of title rests only upon adverse possession, and this cannot confer title as against the public, represented by the municipal corporation of which defendants are the officers. If the complaint had set forth the fact that the premises in question originally constituted one of the public streets or alleys of the town of Beaufort, to which the plaintiff had acquired a title by adverse possession, then it would be necessary for us to decide, under the demurrer, the very grave and important question, whether title can be acquired by a citizen against the public by adverse possession. But it will be observed that there is no such allegation in the complaint. It does not appear from anything there stated that the parcel of land, which is in question, ever was either a street or alley of the said town. The most that does appear is that one of the defendants, as intendant, “informed plaintiff that he objected to the erection of said buildings, because he claimed them to be on an alley, which was the property of the town of Beaufort.” There is no admission of the fact, either express or implied, in the complaint, that the parcel of land to which the [333]*333plaintiff claimed title by adverse possession ever was a street or alley of the said town; and hence the question as to whether title can be acquired to one of the public streets or alleys of a town by adverse possession, does not properly arise under the demurrer. We do not think, therefore, that there was any error in overruling the demurrer.
4 Turning, then, to the errors imputed to the Circuit Judge in rendering his decree, after hearing all the testimony and argument of counsel, it seems to us that, passing by the several errors imputed to the Circuit Judge in his findings of fact, which, under the view we take of the case, it would be improper for us now to consider, the fundamental inquiry is, whether the judge erred in holding that title could be acquired to a public street or alley in a town by ten years’ adverse possession, and whether twenty years’ non-user of such a highway is an abandonment of it. This subject is discussed with much learning and ability by Judge Dillon in his valuable work on Municipal Corporations, 2d vol., sections 529-533, where, after showing that there has been a conflict of decision, he concludes that the following view is correct: “Municipal corporations, as we have seen, have, in some respects, a double character—one public, the other (by way of distinction) private. As respects property not held for public use, or upon public trusts, and as respects contracts and rights of a private nature, there is no reason why such corporations should not fall within limitation statutes, and be affected by them. For example, in an action on contract or for a tort, a municipal corporation may plead, or have pleaded against it, the statute of limitations. But such a corporation does not own, and cannot alien, public streets or places, and no laches, on its part or that of its officers, can defeat the right of the public thereto; yet there may grow up, in consequence, private rights of more persuasive force in the particular case than those of the public. It will, perhaps, be found that cases will arise of such a character that justice requires that an equitable estoppel shall be asserted even against the public, but if so, such cases will form a law unto themselves, and do not fall within the legal operation of limitation enactments. The author cannot assent to the doctrine, that, [334]*334as respects public rights, municipal corporations are within ordinary limitation statutes. It is unsafe to recognize such a principle. But there is no danger in recognizing the principle of an estoppel in pais as applicable to such cases, as this leaves the courts to decide the question, not by the mere lapse of time, but, by all the circumstances of the case, to hold the public estopped or not, as right and justice may require.”
In this State, we have no authoritative determination of the question (unless it be in the case of Owens v. Lucas, 1 Brev., 519, where, however, the exact point was not decided, though the case does lend some support to our view), for the cases of Parkins v. Dunham, 3 Strob., 224, Bowen v. Team, 6 Rich., 298, and Hutto v. Tindall, Ibid., 396, cited by the Circuit Judge, as well as the case of Barnwell v. Magrath, 1 McMull., 173, were all cases between private individuals, where the question with which we are concerned could not arise. It is true, that, in the case of The State v. Pettis, 7 Rich., 390, the question under consideration might have been made, but it was not, perhaps, for the reason that the case went off upon another ground. In the absence, then, of any authoritative decision in this State, we are disposed to adopt the rule as laid down by Judge Dillon, supra, because it seems to us to have the support of reason. As we understand it, the theory upon which title by adverse possession rests is, that such possession for the required time affords a legal xiresumption that a title has been made, but has been lost; but where the party, against whom title is asserted by adverse xiossession, never had the power to make a title, there is no room for such a presumption; and this doctrine seems to have been imxiliedly recognized in Lamb v. Crosland, 4 Rich., 536, though that is not the point decided in that case. Now, as a municixial corporation has no power to sell or alien the streets or alleys of a town, it would be altogether illogical to presume that it had done what it never had the power to do.
"We think, therefore, that mere adverse possession, for the statutory period, of a street or alley in a town, which is a public highway, cannot confer a title. But where such possession is accomx>anied with other circumstances, which would render [335]*335it inequitable that the public should, assert its rights to regain possession, then, upon the principle of estoppel, a party may be protected against the assertion of right by the public, in order to prevent manifest wrong and injustice. For example,, when a party, either under an honest conviction of right, has. taken possession of a portion of one of the streets or alleys of' a town, and expended his money in erecting buildings thereon,., without interference on the part of the public, these or, perhaps, other circumstances, connected with adverse possession for the-statutory period, may afford good ground for estoppel.
5 TJpon the same principles, we do not think mere non-user of a street or alley of a town, for the period of twenty years, will amount to such an abandonment as would destroy the rights of the public. The case of The Commissioners v. Taylor, 2 Bay, 282, which is cited to sustain a contrary view, does, at page 292, contain a remark, that, to an indictment for a nuisance in obstructing a highway, non-user would be a good plea; but that is manifestly a mere obiter dictum, and is not applicable anyhow, for it was made in reference to a case where the streets in question were never laid off, or opened, or used, by the public, but simply delineated on a plat of a prospective addition to the town of Georgetown, which was never, in fact, made.
It seems to us, therefore, that the Circuit Judge erred in holding otherwise, and that, for this reason, the case must go back for a new trial upon the principles herein announced.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.