The opinion of the Court was delivered by
Mr. Justice Pope.
This action has been before this Court once before, and our decision on the first appeal will be found 37 S. C., 327. The cause came on for trial before his Honor, Judge Townsend, at summer, 1894, term of the Court of Commpn Pleas for Beaufort County, in this State, and by his decree the plaintiff was accorded all the relief he sought. From this decree the defendants now appeal on twenty grounds. These grounds of appeal, together with the Circuit decree will be reported.
Briefly stated, the plaintiff, by his action, sought a perpetual injunction against the Town Council of Beaufort, its successors in office, and agents and servants, by which they .shall be restrained from any and all interference under a •claim of ownership óf a certain strip of land, thirty feet wide, lying between lots designated as “C” and “G” on the certified copy of United States direct tax commissioners’ plat of the town of Beaufort, S. C., claiming that he had bought such strip of land from Miss Martha A. Barnwell on the 4th day of August, 1890; and just after he had begun to improve the same by attempting to build a small dwelling thereon, he was prevented from doing so by the defendants, as the town council of Beaufort, alleging as their justification for such interference, that said strip of land was an alleyway of said town of Beaufort, and had been so •owned by the public since prior to the year 1820.
Judge Norton, who first heard the cause, had decided in favor of the plaintiff, on the ground that Miss Martha A. Barnwell had held the land adversely to the.public more than ten years before her conveyance was made to the plaintiff, and also on the further ground that twenty years [275] non-user presumes the abandonment of an easement, such ss a right of way. On these two points, when the cause was in this Court on the first appeal, Mr. Chief Justice Mclver, as the organ of the Court, announced the rule thus clearly: “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 when such possession is accompanied with other circumstances, which would render it 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 the 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. Upon the same principle, we do not think that mere non-user of a street or alley of a town for the period of twenty j^ears will amount to such an abandonment as would destroy the rights of the public. It seems to us, therefore, that the Circuit Judge erred in holding otherwise; and, for this reason, the case must go back for a new trial, npon the principle herein announced.”
It must be evident that the purpose of this Court in ordering a new trial, was to permit the plaintiff, if he saw proper, to raise the question of estoppel, by reason of the non-action, &c.', of the town of Beaufort touching this alleyway. That the parties to the action offered no new testimony at the second hearing, is a matter of no moment, except to the parties to the contention. Parties to an action in a court of justice are never forced to introduce testimony. It is a mátter of their own volition, and, we may add, of their own responsibility. This being a cause on the equity side of the Court, it is made our duty to canvass the facts as well as the law, in response to appellant’s exceptions.
[276] The real question here is, has the plaintiff, or the grantors through whom he claims, used this strip of land, thirty-feet wide, by the sufferance of the public for such a time, and in such ways, as ought to shut off the defendants from the assertion that the plaintiff ought not to be allowed to claim this alleyway as his own. If so, the defendants should be enjoined, as prayed for in the complaint; if not, the complaint should be dismissed as wanting in merit.
First. Was there anything done by the public, represented in this instance by the town council of Beaufort, to induce Crocker to take title to this alleyway? First, it is admitted that the first plat of the town of Beaufort, which was duly recorded, showed that this strip of land was thereon marked as an alleyway. While this is true, it is contended that United States direct tax commissioners made a plat of this town of Beaufort during the war — that is, between the years 1861 and 1865. On this map, however, it is shown that this was an alleyway. Plaintiff suggests that one of his attorneys, when he was about to prepare the deed from Miss Barnwell to the plaintiff, applied to the town authorities for their map of the town, but it was misplaced; he then sought out Thomas Talbird, Esq., of the Beaufort bar, and found that he himself had copied a map of the town from one in the possession of some officer of the town council of Beaufort, and that on this copy of a copy, this narrow strip of land was designated by the letter F, and he drew the deed to include this strip of land. This attorney admitted he had seen a copy of the map of the town of Beaufort in the office of the collector of customs at Beaufort, and he sought it. It was also out of place. Now we are unable to see how the town of Beaufort can be held accountable, so far as its rights to this alleyway are concerned, for any copy of a copy of a map. There is not pretended to be any evidence that the copy from which Mr. Talbird made his copy was recognized by the town of Beaufort as a correct map. No word was spoken, nor act done, which in any wise bound the town of Beaufort to an acceptance by it of the [277] copy of a map from which Mr. Talbird made his copy. All thes^ things being true, we are not able to see any elements of estoppel to the town of Beaufort to deny that the deed from Miss Barnwell to the plaintiff conveyed this strip of land.
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The opinion of the Court was delivered by
Mr. Justice Pope.
This action has been before this Court once before, and our decision on the first appeal will be found 37 S. C., 327. The cause came on for trial before his Honor, Judge Townsend, at summer, 1894, term of the Court of Commpn Pleas for Beaufort County, in this State, and by his decree the plaintiff was accorded all the relief he sought. From this decree the defendants now appeal on twenty grounds. These grounds of appeal, together with the Circuit decree will be reported.
Briefly stated, the plaintiff, by his action, sought a perpetual injunction against the Town Council of Beaufort, its successors in office, and agents and servants, by which they .shall be restrained from any and all interference under a •claim of ownership óf a certain strip of land, thirty feet wide, lying between lots designated as “C” and “G” on the certified copy of United States direct tax commissioners’ plat of the town of Beaufort, S. C., claiming that he had bought such strip of land from Miss Martha A. Barnwell on the 4th day of August, 1890; and just after he had begun to improve the same by attempting to build a small dwelling thereon, he was prevented from doing so by the defendants, as the town council of Beaufort, alleging as their justification for such interference, that said strip of land was an alleyway of said town of Beaufort, and had been so •owned by the public since prior to the year 1820.
Judge Norton, who first heard the cause, had decided in favor of the plaintiff, on the ground that Miss Martha A. Barnwell had held the land adversely to the.public more than ten years before her conveyance was made to the plaintiff, and also on the further ground that twenty years [275] non-user presumes the abandonment of an easement, such ss a right of way. On these two points, when the cause was in this Court on the first appeal, Mr. Chief Justice Mclver, as the organ of the Court, announced the rule thus clearly: “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 when such possession is accompanied with other circumstances, which would render it 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 the 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. Upon the same principle, we do not think that mere non-user of a street or alley of a town for the period of twenty j^ears will amount to such an abandonment as would destroy the rights of the public. It seems to us, therefore, that the Circuit Judge erred in holding otherwise; and, for this reason, the case must go back for a new trial, npon the principle herein announced.”
It must be evident that the purpose of this Court in ordering a new trial, was to permit the plaintiff, if he saw proper, to raise the question of estoppel, by reason of the non-action, &c.', of the town of Beaufort touching this alleyway. That the parties to the action offered no new testimony at the second hearing, is a matter of no moment, except to the parties to the contention. Parties to an action in a court of justice are never forced to introduce testimony. It is a mátter of their own volition, and, we may add, of their own responsibility. This being a cause on the equity side of the Court, it is made our duty to canvass the facts as well as the law, in response to appellant’s exceptions.
[276] The real question here is, has the plaintiff, or the grantors through whom he claims, used this strip of land, thirty-feet wide, by the sufferance of the public for such a time, and in such ways, as ought to shut off the defendants from the assertion that the plaintiff ought not to be allowed to claim this alleyway as his own. If so, the defendants should be enjoined, as prayed for in the complaint; if not, the complaint should be dismissed as wanting in merit.
First. Was there anything done by the public, represented in this instance by the town council of Beaufort, to induce Crocker to take title to this alleyway? First, it is admitted that the first plat of the town of Beaufort, which was duly recorded, showed that this strip of land was thereon marked as an alleyway. While this is true, it is contended that United States direct tax commissioners made a plat of this town of Beaufort during the war — that is, between the years 1861 and 1865. On this map, however, it is shown that this was an alleyway. Plaintiff suggests that one of his attorneys, when he was about to prepare the deed from Miss Barnwell to the plaintiff, applied to the town authorities for their map of the town, but it was misplaced; he then sought out Thomas Talbird, Esq., of the Beaufort bar, and found that he himself had copied a map of the town from one in the possession of some officer of the town council of Beaufort, and that on this copy of a copy, this narrow strip of land was designated by the letter F, and he drew the deed to include this strip of land. This attorney admitted he had seen a copy of the map of the town of Beaufort in the office of the collector of customs at Beaufort, and he sought it. It was also out of place. Now we are unable to see how the town of Beaufort can be held accountable, so far as its rights to this alleyway are concerned, for any copy of a copy of a map. There is not pretended to be any evidence that the copy from which Mr. Talbird made his copy was recognized by the town of Beaufort as a correct map. No word was spoken, nor act done, which in any wise bound the town of Beaufort to an acceptance by it of the [277] copy of a map from which Mr. Talbird made his copy. All thes^ things being true, we are not able to see any elements of estoppel to the town of Beaufort to deny that the deed from Miss Barnwell to the plaintiff conveyed this strip of land.
. Second. Was there such adverse user of this strip of land by the plaintiff and his grantors, that the town of Beaufort should not be allowed now to assert that this strip of land is an alleyway of said town, so that the plaintiff cannot successfully hold the same as his own? (a) We cannot agree with the Circuit Judge, that houses had been built on this land. The testimony does not so declare, (b) We cannot agree with him, that it was used as a garden. By far the clearest description of this alleyway and its use was given by the late Mr. Nathaniel Heyward. As it might have been expected, by any one who was acquainted with his life, his testimony was fair and frank. Counsel for plaintiff seizes hold of an expression used by Mr. Heyward in his testimony, when he referred to his having given permission to the carriage maker, Mr. Rickenbacker, to let a door from his carriage factory swing partly across said alleyway, and bases a claim, that such testimony clearly shows that the alleyway was Mr. Heyward’s private property. But such is not his testimony, as we construe it. This witness always speaks of this alleyway as used by the public. So far as his consent to Mr. Rickenbacker’s door being allowed to open on the alleyway, it was only an expression by Mr. Heyward, that he himself would not object; he did not claim to bind the public, (c) The fences across the alleyway since 1867 merely indicate a privilege to the adjacent landowners, which arose, no doubt, from a desire to mitigate the terrible results of the late war, which made it quite expensive to run two fences on said alleyway. Hence one was run, and the short fence across the alleyway, (d) So far as plaintiff’s attempt to build thereon is concerned, the testimony fails to disclose any great damage to him. He says his material in all, and the work on it, is worth $150, but [278] then he is careful to say that the only injury would be to ■the morticed work by the weather. He admits that no one objects to his removal of his lumber and other material to his Woodbine Cottage lot, adjoining the alleyway. In view of these matters, and many others disclosed in the “Case,” we hold that the Circuit Judge was in error, and his decree must be reversed. We can see no need for further litigation.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the action be remanded to the Circuit 'Court, with directions to that Court to pronounce a decree dismissing the complaint.