Whaley v. Stevens

Citations

• 21 S.C. 221
• 1884 S.C. LEXIS 87

Syllabus

<p>1. The distinction between a right of way in gross, and one appurtenant, is marked and important, the former being a personal privilege which dies with the possessor, while in the latter it inheres in the land to which it is appurtenant, is essentially necessary to its enjoyment, and passes with it; and a right of way appurtenant must have a terminus on the land to which appurtenant.</p> <p>2. Plaintiff alleged a right of way,from a public road bounding his plantation across defendant’s lands to a boat landing, and that the right of way was lor the use of plaintiff’s plantation and those connected ■with it. Held, that this was an allegation of a right of way in gross.</p> <p>3. An amendment to the complaint by inserting an allegation that the right of way begins on plaintiff’s land, would substitute a claim of a right of way appurtenant for that of a right of way in gross, and so substantially change the claim. Such amendment, therefore, cannot be allowed.</p> <p>Mk. Justice McGowan dissented.</p>