#### I. L. Brooks *vs.*The So. Ca. Railroad Company.

Bill to compel defendants to open and not to obstruct certain streets alleged to have been dedicated by defendants' vendors. The alleged obstruction was in 1845, and the bill was filed in *1851:*— Held, that plaintiff's remedy, if he had any, was by action on the case at law; and that, if he was at one time entitled to relief in this Court, he had been too tardy in prosecuting his claim.'

BEFOBE WABDLAW, OH., AT EDGEFIELD, JUNE, 1854

The circuit decree.of his Honor, the Chancellor, is as follows: WaRDLAw, Ch. The plaintiff proceeds for the recognition of. certain streets or roads, leading from his land over the land of the defendant to the town of Hamburg and to the Savannah River.

It appears that the executors of John Fox, deceased, with a view to the more advantageous sale of the Greenwich plantation, belonging to their testator, and lying on the Savannah River, immediately below the town of Hamburg, procured a portion of said plantation adjoining Hamburg, to be laid off by William Phillips into small lots and streets, as the site of a projected town, to be called Greenwich, and procured the remnant to be divided into small farms. On November 14, 1837, the said executors proceeded to sell said lands, at public outcry, in lots and farms, and exhibited a plat which designated the lots and farms by numbers and dimensions, and the streets by names and dimensions. The executors of Fox are named as defendants to this bill, but they are not before the Court according to regular procedure. It is set down in the return of the executors to. the Ordinary that the South Carolina Railroad Company bid off one of the lots and two of the farms at this sale, but there is no competent evidence that any officer or agent of the Company was present at the sale, or even had notice of the plat. Afterwards, however, the Company took the place of some of the bidders at the sale; *31and on December 2, 1839, in consideration of $10,448 10, received a conveyance from tbe executors of one hundred and seventy-two and seven-tenths acres, part of the Greenwich plantation, as represented by a plat of William Buckhalter. It is said in the recital of this deed, that the tract conveyed had ■been sold by the executors at auction, on Nov. 14, 1837, in divers lots and parcels; but no mention is made of streets in any part of the deed. At the public sale aforesaid, plaintiff, through his agent, John Cloud, bid off two of the farms, but none of the town lots; and on January 5, 1843, in consideration of $6,071 47, received a conveyance from the surviving executors,of farm No. 1, containing one hundred and nineteen acres; farm No. 2, containing three hundred and sixty-three acres, (apparently bid off by defendant;) and farm No. 3, containing forty-nine acres. It is from the last tract that the right of way is claimed; and it may be proper to copy the description of the boundaries: “ Bounded south-east by lands of said I. L. Brooks, south-west by a branch or small stream, separating it from the town of Greenwich as delineated on said plat,” (meaning a plat made by Wm. Phillips, and exhibited at the time of sale,) “ north-west by a ditch separating it from the lands purchased at the same time by the South Carolina Railroad Company, and north-east by a line running parallel with the said Railroad, on the south side of the same, and at the distance of one hundred and seven feet from the centre of said road.” This deed grants no right of way, and makes no mention of streets. It does not appear that Greenwich has ever existed as a town, except on the Surveyor’s plat; nor that the streets delineated on the plat have been accepted by any public authority or used, by the people. In 1845, the defendant erected a new depot, obstructing some of said streets, and in the same year leased some adjoining lands to one Burley; and this tenant, without giving notice to the Company, so far as appears, for two or three years gave license to the plaintiff to *32pass over the leased premises with his wagons, &c., on condition he kept the gates shut at all proper times.

This bill was filed February 26, 1851; and the only prayer of it affecting the defendant is, that the Company may be required to open and not to obstruct the said streets in the town of Greenwich. The answer denies that the land conveyed to the defendant was purchased with reference to any streets laid out or to be laid out over it; denies all knowledge that a plat was exhibited on the day of sale; and pleads the Statute of Limitations.

The case of the plaintiff seems to me to be so full of difficulties as to render it quite unnecessary to elaborate the argument.

1. The proper remedy of the plaintiff, if he be entitled to any, is by the action on the case in the Common Pleas. He goes for relief, and not for prevention; whereas, the proper jurisdiction of this Court in such ease is to prevent irreparable mischief, rather than to redress a wrong consummated. *(Wilson*vs. *Cohen,*Rice, Eq. 80.)

2. The plaintiff has established no private right of way in any mode known to the law. Not from necessity, for he has practicable routes over his own land to Hamburg and the river, although not so easy, short and convenient as the one he seeks to establish. Not by grant, for he proves no agreement with defendant on the subject, and even his conveyance from the executors of Fox implies no such easement to him. Not by prescription, for he has exercised no such claim adversely at any time, and the whole time since his ownership is too brief for such a presumption.

3. If plaintiff claims the right as incidental to the dedication of the streets in Greenwich by the executors of Fox to the purchasers of the lots, there are various answers. However this *33dedication may commit the vendors, it cannot implicate the defendant, who had no notice of it. *[Livingston*vs. *Mayor of N. Y.,*8 Wend. 85, 98.) Besides, the dedication was merely inchoate and rescinded by the subsequent conveyances. Again, plaintiff was not a purchaser of a town lot, and accepted a conveyance of a farm expressly separated from the projected town. There has been no acceptance of the dedication by the plaintiff or any portion of the community; and such acceptance is necessary to the establishment of a public street. *[State*vs. *Garver,*5 Strob. 217.) Finally, plaintiff has been too tardy in presenting his claim.

It is ordered and decreed that the bill be dismissed.

The plaintiff appealed, and moved this Court to reverse the decree on the grounds:

1. Because it is submitted that this is the proper jurisdiction in which alone the plaintiff can obtain adequate relief, by compelling the defendant to open, and not to obstruct the streets leading to the Savannah River, which were laid down and platted as appurtenant to the tract of land purchased by the plaintiff of the executors of Fox. ■

2. Because the President of the said Railroad Company had full and ample knowledge of the manner in which the Greenwich plantation was laid off and sold at auction, in town lots, streets, and small farms, and became a purchaser at that sale of a part thereof, and therefore the said Company should not be allowed to set up want of notice in bar of the relief sought by the plaintiff.

8. Because the plaintiff is entitled to a right of way through the streets of Greenwich, as platted, to the Savannah River, because the executors of Fox, when they sold to the plaintiff *34the land in question, represented and exhibited by a plat, public.streets leading from the margin of said land to the river, and it was in reference to the convenience and value of those streets to the plaintiff that he .was induced to make his said purchase.

4. Because the said Railroad Company, being subsequent purchasers from the executors of Pox, with full notice and knowledge of all the facts, should be held bound by all the obligations which rested on the executors of Eox to keep the streets open or give a right of way to the river for the benefit of plaintiff.

*Bauslcett,*for appellant.

*Bonham,*contra.

PER CuRiam.

This Court concurring in the decree of the Chancellor, it is ordered that the same be affirmed, and the appeal dismissed.

Johnslow, Dunkin, *JDarsan*and *Waudlaw,*CO., concurring.

*Appeal dismissed.*