Opinion
17450
July 16, 1958.
Henry E. Davis, Esq., of Florence, for Appellants, cites: As to instant action being one for equitable relief: 148 S.C. 403; 191 S.C. 253; 191 S.C. 384; 161 S.C. 293. As to a Court having no power to write into a contract or deed something that the contract or deed does not contain: 229 S.C. 388; 210 S.C. 336; 206 S.C. 183; 197 S.C. 330; 191 S.C. 486; 187 S.C. 251; 182 S.C. 9; 112 S.C. 402. As to the common law maxim that "the expression of one thing is the exclusion of `another'": 171 S.C. 27; 17 C.J.S. 730; 26 C.J.S. 335; 35 C.J.S. 285-284. As to hearsay rule not being applicable here: 227 S.C. 81; 11 C.J.S. 700. As to estoppel not having to be pleaded: 228 S.C. 240; 93 S.C. 190; 81 S.C. 329; 27 S.C. 226. As to a case of estoppel having been made out, not merely by a clear preponderance of the proof, but beyond any reasonable doubt: 228 S.C. 378; 140 S.C. 388. As to a road leading to a community cemetery being a public necessity, and such road cannot be closed by the Court: 10 Am. Jur. 510; 149 S.W. 1058 (Tenn.); 130 A.L.R. 257, 258; 130 S.C. 72; 182 S.C. 510; 231 S.C. 607; 219 S.C. 433. As to payment of taxes being no evidence of title: 99 S.C. 172; 82 S.C. 358.
Messrs. McEachin, Townsend Zeigler, of Florence, for Respondent, cite: As to findings of fact by the Circuit Judge, based on direct testimony involving the creditability of witnesses, being rarely overruled: 16 S.C. 632; 16 S.C. 352; 4 S.C. 249; 4 S.C. 10; 29 S.E. 77, 51 S.C. 420. As to the findings of fact of the Circuit Court, upon legal issues tried in an equity cause, being not subject to review by the Supreme Court: 51 S.E. 884, 72 S.C. 312; 11 S.E. 685, 33 S.C. 169; 176 S.E. 355, 174 S.C. 69; 59 S.E. 70, 78 S.C. 457; 33 S.E. 458, 55 S.C. 360. As to the equitable issues: 159 S.E. 620, 161 S.C. 293. As to the legal issues: 146 S.E. 243, 148 S.C. 403. As to there being no evidence of adverse possession: 2 McCord 534; 2 McCord, 343; 66 S.E.2d 457, 220 S.C. 20; 103 S.E. 561, 114 S.C. 303; 5 S.C.L.Q. 89.
Henry E. Davis, Esq., of Florence, for Appellants, in Reply, cites: As to Questions 1 and 2 of Respondent's brief not being raised by any of Appellants' exceptions; hence these two questions are not before the Court: (S.C.) 103 S.E.2d 908; 219 S.C. 174; 213 S.C. 26; 215 S.C. 52; 226 S.C. 311; 228 S.C. 149. As to where the evidence as to adverse possession does not reasonably support the findings of the Trial Judge, such findings will be reversed: 161 S.C. 293; 231 S.C. 154. As to estoppel being an equitable issue: 45 S.C. 512; 79 S.C. 266. As to adverse possession not having to be pleaded: 59 S.C. 440. As to error on part of Trial Judge in ordering ancient communal cemetery road closed: 91 S.C. 41; 143 S.C. 223.
The decree of Judge Lewis follows:
This case was commenced on the fourth day of June, 1951. The complaint alleges that the plaintiffs and defendant own adjoining tracts of land and that a dispute has arisen between them as to the location of the boundary line between the two tracts. It is alleged among other things in the complaint that "the plaintiffs have no plain and adequate remedy at law to redress the wrongs already perpetrated on them by the defendant and to prevent the continuance of such actions against them in the future by the defendant, and will suffer great and irreparable injury unless this court affords to them proper and full relief."
The prayer of the complaint is as follows:
Wherefore, plaintiffs pray:
(1) That this court sitting in equity ascertain, determine and fix the location of the boundary line dividing the land of the plaintiffs from the land of the defendant.
(2) That it enforce its decree by issuing a permanent injunction against all the parties hereto requiring them and their successors henceforth to observe in all respects the line so established.
(3) That the plaintiffs be granted such other and further relief herein as may be just, proper and equitable.
The tract of land alleged to be owned by plaintiffs and concerning which the boundary line is in dispute is described in the complaint as follows:
"All that certain tract of land located in Florence County, South Carolina, containing one hundred and nine (109) acres, more or less, known as the Grice Tract, and bounded as follows: on the north and east by lands of the estate of Ervin James, deceased; on the south by lands of George Hyman, formerly of N.S. Gibson; and on the west by lands of T.D. Hinds, formerly of R. Willoughby."
The defendant answered with a general denial and then set up that the boundary line of his land "has been well established for a great many years and that the plaintiffs Geneva Butler, Jack James and Otis James have for the past few years been continuously trespassing upon his land and refused to stop after demand made upon them by the defendant."
He further alleges that he is entitled to have the boundary line of his land determined in this action and after such determination, to a permanent injunction restraining the plaintiffs from trespassing or entering upon his land. The description of defendant's land is:
"All that certain piece, parcel or tract of land situate, lying and being in the County of Florence, State of South Carolina, containing eleven hundred seventy-four (1,174) acres and being bounded as follows: on the north by lands of the James Estate; on the east by lands of Atlantic Coast Lumber Company; on the south by the old Marion highway; and on the west by lands of Hinds."
By order of reference to take the testimony and report it to this court, the case was referred to Hon. C.W. Muldrow, Master in Equity for Florence County. Six hearings were held before the master over a period commencing February 4, 1953, and ending September 13, 1956. The transcript of the testimony has been filed in this court by the master with his report of July 24, 1957. Hon. G. Badger Baker, Judge of the Twelfth Judicial Circuit, having disqualified himself in the cause, it comes before me by consent of counsel.
From an examination of the pleadings, it appears that the only question at issue is the location of the boundary line which is in dispute. The plaintiff relies upon a line, Plaintiffs' Exhibit No. 2, shown on a plat dated April, 1951, made by C.P. Roberts, C.E., which shall be designated hereinafter for convenience as the James line. The defendant relies upon a line, Defendant's Exhibit B-2, surveyed February 22, 1950, by A.L. Ervin, C.E., which shall be hereinafter designated as the Hyman line.
The plaintiffs' claim under a deed from J.A. Grice and Sarah E. Grice to Sidney James, et al., dated December 1, 1890, Plaintiffs' Exhibit A-10, as the heirs at law of the grantees. This deed conveys two tracts of land, the first containing 75 acres, and the second 34 acres. Plaintiffs' counsel established under cross examination of A.L. Ervin, C.E., defendant's witness (Tr. 18-19-20, third reference) that the 34-acre tract was not involved in the present controversy, the boundary line of the 75-acre tract being the instant issue. This tract is described in the Grice deed as:
"All those two certain tracts of land situate in the County of Florence, in the state aforesaid, the first tract lying between the Braddy Hill and Back Swamp, containing 75 acres, more or less, bounded on the north by lands of Mary E. Poston, east by lands of the Estate of James Gibson, south by lands of Charles W. McKissick, and west by the Estate of Asa Hinds."
The defendant claims under the deed from Eli McKissick to Charles W. McKissick, dated October 30, 1867 (Plaintiffs' Exhibit A-4). This deed conveys a tract of 60 acres, more or less, and it is the northern boundary line of this tract that is in dispute between the parties. The description in this deed is:
"* * * unto my son, Charles W. McKissick, sixty (60) acres, more or less, of land, being a part of the tract on which I now reside, lying between Mars Bluff road and the Braddy Hill as the fence now runs, bounded on the north by Sarah E. McKissick, east by Est. James Gibson, south by public road, and west by Est. Asa Hinds. I, the aforesaid Eli McKissick, do by these presents — (general warranty). The lane leading from the public road to Back Swamp to be kept open as it now is."
For convenience the plaintiffs' deed will be referred to as the Grice deed and the defendant's deed as the McKissick deed. It may be mentioned here that it appears that the plaintiffs' and defendant's tract come from Eli McKissick who conveyed plaintiffs' tract to his daughter, Sarah E. Grice, and defendant's tract to his son, Charles W. McKissick. It should be noted at this time that the description in the McKissick deed has this language: "lying between Mars Bluff road and the Braddy Hill as the fence now runs." The deed from Eli McKissick to Sarah E. McKissick is not in the record.
Obviously from the description in the two deeds above mentioned the Grice tract is north of the Braddy Hill and the McKissick tract is south of the Braddy Hill. By the testimony, Braddy Hill is an unusually high hill for the flat country in which both tracts are situated, and runs for a distance of three-quarters of a mile. At the outset then, it is clear that the Grice tract does not extend south of the Braddy Hill so that the question of fact really is, where at the Braddy Hill is the boundary line between the Grice tract and the McKissick tract.
The James line as shown on the Roberts plat (Plaintiffs' Exhibit No. 2) is south of the Braddy Hill and almost to the southern border of the field which is south of this hill. Should the plaintiffs be correct, the natural boundary line, designated in each deed would be ignored and the Braddy Hill would be of no significance in defining the northern and southern limits of the two tracts. To adopt this view would disregard the plain intent of the grantor in each deed.
Practically all of the witnesses testifying for plaintiffs were either claimants to an interest in the disputed area or related to claimants. From the few disinterested witnesses produced by the plaintiffs it will be observed after an examination of their testimony, that they gave little or no evidence of any practical value to sustain plaintiffs' alleged line. Mr. Roberts, their surveyor, admitted that he just took a point on the road where plaintiffs said there had been a fence, and designated that as a corner F (Plaintiffs' Exhibit No. 2). He did not find anything on the ground to verify a corner at this location. A reading of his testimony will indicate that he laid out the line F E O D at an approximate location pointed out to him by plaintiffs without finding any real signs on the ground corroborating such a line. He put no courses and distances on the line, he marked no corners, all of which indicates he had little confidence in its being a boundary line. He made no survey of the Grice tract to see if other lines of this tract would verify or fit the corners F and D.
Mr. Roberts and Mr. Ervin made a survey under order of the court for the purpose of establishing the boundary line. Mr. Ervin testified in effect that Mr. Roberts agreed on the line A G H I J K B C as the correct line and was to prepare a plat showing this line and send it to Mr. Ervin for his signature, and that no line F E O D was surveyed by Ervin and Roberts. His testimony further shows that Roberts subsequently submitted the plat (Plaintiffs' Exhibit No. 2) for Ervin's signature and Ervin refused to sign it. Mr. Ervin testified that he and Mr. Roberts made diligent effort to verify a corner at F and the existence of the line contended for by plaintiffs but that they failed to locate any signs or evidence on the ground to prove such line was ever there. A number of other witnesses experienced in such matters, testified for the defendant to like effect.
Mr. Thomas Hinds, a witness for plaintiffs, 76 years of age, and living on the adjoining tract of land all of his life, under cross examination testified that the first time he heard that the plaintiffs claimed the disputed field was about two or three months ago (date he testified, March 19, 1954) (Tr. p. 13). He further testified that this field was known as the Walker field of the Gibson land (Tr. p. 17). In addition he said that he knew of no line being where plaintiffs contended (Tr. p. 18).
According to the evidence produced by defendant, the Hyman line practically follows the crest of Braddy Hill. This line generally divides the hill between the two tracts, the plaintiffs having the north side, the defendant the south side. The hickory tree corner at A (Plaintiffs' Exhibit No. 2) is established by defendant's witnesses as having been there for years prior to 1930, the year Ervin first surveyed the Hyman tract, with surveyor marks on it. The corner C was marked by a stake prior to the 1930 survey and located by Ervin in 1930. Both corners, according to Ervin, tie in with the adjoining lines on the Hyman tract. A hedge now identified by a number of defendant's witnesses as indicating an old fence line, generally follows the summit of Braddy Hill. This line is south of all the Otis James buildings, leaving these buildings out of the Hyman tract.
Mr. Gainey, 60 years of age, gathered chinquapens along the hedgerow that the Hyman line follows, when he was a boy. At that time the hickory tree marking the corner was there and he recalls parts of an old fence being along the line. He further stated that the witness, Tom Hinds, pointed the hickory tree out to him as marking the line between the James and the Gibsons and the Hinds. This witness also, testified that the road running from the corner F on the James line through the field and on by Otis James' house had only been there about eight or ten years. Other witnesses for defendant corroborated Gainey's testimony that this road had been put there only in recent years.
Mr. Hyman, the defendant was 57 years old at the time he testified, September 13, 1956. He was raised on the tract of land of which he now owns the part that is bounded by the James tract. By his evidence the hedgerow line along the crest of Braddy Hill has always been recognized as the line between his land and the James land. When Ervin was making the survey in 1930 he notified the plaintiffs who were living on the James land at the time of the intended survey and a number of them were present when Mr. Ervin ran the hedgerow as the line. No objection was made by any of those present.
Counsel for plaintiffs contend that the defendant is barred by the principle of Equitable Estoppel from disputing the James line, but there is not sufficient evidence in the record to sustain such a plea. The authorities submitted by plaintiffs' counsel have been examined, but I do not find the cases cited apposite.
From an examination of all the testimony and exhibits I am convinced that the clear preponderance of the evidence shows that line surveyed by A.L. Ervin, C.E., generally following the crest of Braddy Hill and shown on Plaintiffs' Exhibit No. 2, and Defendant's Exhibit B-2 as the line A G H I J K B C is the boundary line between the lands of plaintiffs' and defendant's land. It is therefore:
Ordered, adjudged and decreed that the line A G H I J K B C as shown on Plaintiffs' Exhibit No. 2 and Defendant's Exhibit B-2, be and it is hereby declared to be the boundary line between lands of plaintiffs and defendant described in the complaint and answer in this cause, and defendant is hereby decreed and adjudged to be the owner of all lands south of the said line as shown on Plaintiffs' Exhibit No. 2.
Further ordered, that the plaintiffs, their agents, servants and employees be and they are hereby permanently restrained and enjoined from trespassing upon, entering upon, or interfering with or molesting in any way the defendant in his use, occupancy, possession and title to all of his land south of the said boundary line and particularly to his right to close the road beginning approximately at the letter F on Plaintiffs' Exhibit No. 2 and running generally in an eastern direction south of two light poles across defendant's field as shown on Plaintiffs' Exhibit No. 2.
July 16, 1958.
The exceptions of appellants to the decree of the circuit court have been carefully considered in the light of the record and we conclude that the decree correctly decided the controversy. The following will be stricken from it and with those deletions it will be published as the judgment of this court: "Mr. Hyman has been paying taxes on the disputed area since he owned the place (Tr. p. 30)"; and "Further no such issue is alleged in the complaint." (Printed transcript of record, ff. 861, 2).
Title by adverse possession was not alleged in the complaint in this action in equity to determine the boundary between the adjoining farms of the parties, and it was not an issue; indeed, it would not have been a proper issue in this case. McRae v. Hamer, 148 S.C. 403, 146 S.E. 243, Incidentally, the disputed area is relatively small — about twelve acres, which is only partly cultivatable.
Affirmed.