Supreme Court of South Carolina, 1925

State v. Olasov

Supreme Court of South Carolina · Decided November 16, 1925 · Watts, Marion, Purdy, Gary, Messrs, Cothran

130 S.E. 514; 133 S.C. 139; 1925 S.C. LEXIS 50 (South Eastern Reporter)

Counsel

Messrs. Shimel Rittenberg and Waring Brockington , for appellant, cite: Penalty limited by terms of statute: 26 R.C.L., 1405; 38 Cyc., 404, note 29. Civil remedy for failure to pay toll: 38 Cyc., 398. Right of public in toll road: 26 R.C.L., 1396; 38 Cyc., 378, note 30; 73 S.C. 24 ; 124 S.C. 302 ; 117 S.E., 599 . Use of easement by necessity not trespass: 38 Cyc., 1177, note 53. Trespass under claim of title not criminal: 87 S.E., 31; 83 S.C. 1011 . Right to close roadway not reserved: 33 S.C.L., 156; 9 S.C.L., 98; 18 C.J., 263. Easement by implication: 2 Washb. on Real Property, 6th Ed., 276. Abandonment of easement: 2 Washb. on Real Property, 6th Ed., Sec. 1275; 19 C.J., 949. Messrs. James Allan, Solicitor and Robert McC. Figg, Jr. , for respondent, cite: Trespass after notice: Crim. Code, 1922, Sec. 81. Intention immaterial: 35 S.C. 266 . Qualified dedication to public: 124 S.C. 302 . Tolls: 123 U.S. 288 ; 65 Pa., 205 ; 167 Pa., 582; 28 L.R.A., 458. No penalty named in statute: 167 Pa., 582 ; 28 L.R.A., 458. Easement by necessity: 9 R.C.L., 768 et seq.; 2 McC., 445; 8 Rich., 158. Abandonment of easement: 9 R.C.L., 815; 114 S.W. 317; 22 L.R.A. (N.S.), 880; 51 Md., 470 ; 5 Gray., 409; 84 Me., 34 ; 71 Atl., 141 . Established rights affected by exercise of police power: 119 U.S. 543 ; 199 U.S. 473 ; 123 U.S. 288 .

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Watts.

*146 For the reasons assigned by his Honor, Judge Shipp, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.

Mr. Chief Justice Gary concurs. Messrs. Justices Cothran, Marion and Mr. Acting Associate Justice R. O. Purdy concur in result.

Concurring Opinion

Mr. Justice Cothran

(concurring) : I concur in the result of this case upon the following grounds :

While unquestionably the turnpike company has dedicated the highway to the public and the easement is a public easement and not private property, the turnpike company still retains the fee-simple title to the land. The public has an easement to use the road upon the payment of tolls provided for in the Act incorporating the turnpike company; that is, the public has a qualified easement. A person, therefore, who attempts to use the highway in defiance of and in breach of that condition, after notice, commits a trespass upon the land of another after notice.

Even if the defendant had the right of ingress and egress from his lot to the road before the incoporation of the turnpike company, he has waived his right thereto by joining in the common purpose of establishing a turnpike road for the use of which all persons are required to pay toll.

The other matters referred to in the decree of Judge Shipp have not been considered and in my opinion should not be considered adjudged by the judgment of this Court.

Mr. Justice Marion and Mr. Acting Associate Justice R. O. Purdy concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.