Powell v. Spartanburg County

The opinion of the Court was delivered by Mr. Justice Cothran. By consent, these two cases were tried together on circuit, and the appeals were heard in the same manner by this Court. They are practically identical, and for convenience the Powell case will be considered, the decision in which will be binding upon the other case. The action is for $2,500 damages, alleged to have resulted from the closing of a highway upon the property of the plaintiff fronted. The case was tried before his Honor, Judge Bonham, and a jury. At the close of the plaintiff’s evidence, he granted a nonsuit upon the grounds stated by counsel for the defendant, which will be reported. From this order the plaintiff has appealed upon exceptions which will be reported. The facts are these: The public highway leading from Spartanburg to Taurens runs in a general southerly direction. Near the southern limits of the City of Spartanburg, and outside of the limits, the county road authorities determined upon á relocation of a part of it, so as to pass under the railroad, thus avoiding a dangerous railroad crossing at grade which theretofore existed and still exists. The relocation was completed; the new road being constructed mostly upon a fill. The situation of the old road 'and the new may be compared roughly to a strung bow, *375 the cord representing the new portion and the bow the old, geometrically the segment of a circle. The plaintiff and a number of others have property fronting on the old portion. It does not appear that this old portion of the road was formally discontinued as a part of the highway. The fact that a number of persons owned property fronting upon it, and the fact that the end nearest Spartanburg was physically connected with the new road at that point, so that the persons referred to were not obstructed in going to and coming from the City of Spartanburg, indicates that it had not been discontinued; but at the south end of the old portion, some 300 yards from the connection at the north end, no connection was made with the new road; on the contrary, at that point the new road was upon a fill of about 7 feet high, at an acute angle with the old road, and no arrangement was made by which persons could enter or depart from the old road. Assuming, what is by no means clear, that the county authorities intended to and did actually discontinue the old portion as a highway to be maintained at the public expense, and conceding that under Section 2906 of Volume 3, Code 1922, and the case of Wilson v. Greenville County, 110 S. C., 324; 96 S. E., 301, they were fully authorized to do so, it does not by any means follow that they were authorized to close the old portion at either end. Those who owned property fronting upon that old road, if actually discontinued, could not rightfully be deprived of the privilege of still using it to reach the newly located portion in either direction; as is clearly implied in the Wilson case, where the Court says: “If damage results merely from its abandonment as a public highway, without its being closed, it is damnum absque injuria.” So, upon the motion for a nonsuit, it was important to inquire whether the old portion of the road had been discontinued or abandoned as a part of the highway. If it had not been, it is clear that the plaintiff *376 would have been entitled to such damages as he might have established under the rather strict rule that his injury must be shown to have been different, not only in kind, but in degree, from that suffered by the public generally, which presented a question of fact for the jury. If it had been, he was entitled to such damages as he might have established under the same rule, which also presented a question of fact for the jury. In either event, the nonsuit was wrong. As a practical matter, another view may be presented. It is entirely possible that the connection at the south end of the old road with the new portion may yet be made with comparatively small cost and with no injury to the relocated road. If that be so, the plaintiff would have the right to a mandatory injunction requiring the county authorities to do so. In that event, the status being restored, the plaintiff’s damages would be limited to the injury suffered in the meantime; that is, between the date of the obstruction and its removal. The justice of the case in our opinion will be attained by: (1) Reversing the order of nonsuit and remanding the case to the circuit Court for a new trial. (2) Allowing the plaintiff to amend his complaint by alleging the facts which' would entitle him to a mandatory injunction requiring the defendant to remove the obstruction and make physical connection at the south end of the old road between it and the newly relocated portion. (3) Allowing the defendant to proceed with a removal of the obstruction and a physical connection as indicated, and set up that fact when accomplished by way of supplemental answer. (4) A jury trial upon the matter of damages. No question is made in the appeal upon the question of damages; that is, whether the injury sustained by the plaintiff is different in kind and degree from that sustained by the public generally. That question is therefore left open. *377 The judgment of this Court is that the orders of nonsuit in the cases above entitled be reversed, and that they be remanded to the circuit Court for further proceedings consistent with the conclusions herein announced. Messrs. Chiee Justice Gary and Messrs. Justices Watts, BeEase and StabeER concur.