Opinion
12774
December 5, 1929.
Before DENNIS, J., Sumter, Spring Term, 1926. Reversed and remanded.
Action by the Santee River Cypress Lumber Company against J. Louis Elliott and others. From an adverse judgment, plaintiff appeals.
The complaint, answer and charge of the trial Judge were as follows:
COMPLAINT"Complaining of the defendant, the plaintiff alleges:
"I. That the plaintiff is the owner in fee simple and is (along with its lessees) seized and possessed of the following described premises, to wit:
"All that piece, parcel or tract of land, situate, lying and being in the lowlands of Santee River, in Sumter County, formerly Clarendon County, State of South Carolina, containing about fifteen hundred acres, more or less; and bounded north by lands of Santee River Cypress Lumber Company, formerly of Richardson, and known as Woodland; east by the highland of what was formerly known as the Matt James Plantation, now said to be the property of the heirs of Gibbs James, high water mark being the boundary; south by lands of Santee River Cypress Lumber Company, formerly of Deas and of Mathis; and west by the Santee River.
"II. That Santee River Cypress Lumber Company claims said premises through a chain of conveyances and other muniments of title, extending back for over forty years next prior to the commencement of this action.
"III. That, upon information and belief, the plaintiff, Santee River Cypress Lumber Company, and its lessees, have been for more than ten years next prior to the commencement of this action in the continuous, adverse, exclusive and uninterrupted (except as hereinafter alleged) possession of all of the said premises, founding such claim upon written instruments as conveying the said premises.
"IV. That, upon information and belief, the plaintiff, Santee River Cypress Lumber Company, and its lessees, grantors and predecessors, have been for more than twenty years next prior to the commencement of this action in the continuous, adverse, exclusive and uninterrupted (except hereinafter alleged) possession of the said premises, founding such claim upon written instruments as conveying the said premises.
"V. That, upon information and belief, the plaintiff, Santee River Cypress Lumber Company, and its lessees, tenants, agents, licensees, grantors and predecessors, have been for more than forty years next prior to the commencement of this action in the continuous, adverse, exclusive and uninterrupted possession (except as hereinafter alleged), of the said premises, founding such claim upon written instruments as conveying the said premises.
"VI. That, the lands above described consist of wild, uncultivated timber lands in the lowlands of the Santee River, and are impracticable for actual residence or the usual uses of agricultural husbandry, being subject to frequent overflow from the floods of the said river; but the plaintiff alleges that it, and its lessees, are seized and possessed thereof in such manner and to such extent as land of that character is susceptible of.
"VII. That, on information and belief, the defendants, J. Louis Elliott and R.M. Elliott, themselves, and by and through their laborers, employees, and agents, have recently, and without the consent of plaintiff or its lessees, entered and trespassed upon the eastern portion of the said premises, and have cut down and converted to their own uses and removed therefrom a great deal of the pine trees and timber therefrom, all to the plaintiff's damage as hereinafter stated. That there is a considerable quantity of pine timber still there, which the said defendants are about to cut and remove, and which they are at present in the process of cutting and removing. That the timber upon said premises is its chief value, and the removal or destruction of which will irreparably impair the very essence of the said estate. That although such trespasses have not yet been long enough continued or have not yet been of sufficient nature to ripen into an adverse title, still they are continued and repeated recurrences and will be continued unless restrained by this Honorable Court; without which restraint the plaintiff and its lessees will be subject to constant harrassment from the defendants, who are seeking to embarrass plaintiff's title and reversion and the plaintiff may lose its title and reversion to the said eastern portion of said premises if said acts are permitted to continue for a sufficient length of time longer. Plaintiff alleges, on information and belief, that the defendants are not so solvent that a judgment for damages at law could be collected from them, and the plaintiff is without remedy at law, and will suffer irreparable injury to its estate and reversion if it is not protected by the injunctive powers of this Honorable Court. That the aforesaid trespasses by the defendants have been, and are willful and high-handed and wanton disregard of the plaintiff's rights, and to the plaintiff's damage of Four Thousand Dollars, actual damages, and Two Thousand Dollars, punitive damages.
"VIII. That the plaintiff is informed and believes that the defendants claim to have acquired some alleged right to cut the said timber by and through certain of the heirs of one, Gibb James. deceased.
"IX. That the said heirs of Gibbs James, deceased, claimed to be the owners of the highlands of the above mentioned Mat James Plantation. That many years before the said heirs of Gibbs James, or their ancestor, Gibbs James, deceased, came into interest in said property, the previous owned of the said Matt James Plantation, Mrs. Annie S. Manning, now believed to be deceased, sold and conveyed the lowlands of the said Matt James Plantation to the grantors and predecessors of this plaintiff, at which time the high-water mark was agreed upon as the boundary between said highland and said lowland, of which the said Gibbs James, deceased, and all claiming under him, including these defendants, took and acquired their right, title, interest or claim, with full and due recorded and actual notice. The plaintiff alleges that the aforesaid boundary, as thus agreed upon, would embrace the land upon which the defendants have been and are cutting pine timber, as aforesaid, within the tract of land so sold and conveyed to plaintiff's grantors and predecessors and by them duly conveyed unto this plaintiff; but, notwithstanding this, plaintiff is informed and believes that certain of the heirs of Gibbs James, deceased, and these defendants, have recently made unfounded claims that such is not the case, but that the lands on which the aforesaid pine timber is being cut are appurtenant to the highland portion of the said old Matt James Plantation. And, notwithstanding that they had the aforesaid notice, and notwithstanding that they knew that the name was and is claimed by this plaintiff, and without seeking any settlement of these contentions, or an establishment of the true and proper line by means of the lawful process of this Court, they have unlawfully, willfully and wantonly undertaken to invade said premises and cut and remove said timber, all to the plaintiff's damage as aforesaid. Plaintiff alleges that for the proper and just settlement of these respective claims, it is necessary that the defendants should be enjoined and restrained, pending their settlement, from the destruction of the very essence of the said estate as aforesaid; and that a survey of said premises should be had under the direction on this Honorable Court, showing the lay and nature of the ground involved, so as to enable this Court to arrive at a true and just solution of the matter.
"X. That the defendants, Gibbs James, Emma E. Johnson, Aaron James, Solomon James, Emma James, Lee Ben Johnson, Louisa Singleton, Sallie Johnson, Napoleon Richardson, Gibb James Richardson, Irene Richardson, Emma Julianna Richardson, David Richardson, Susan Richardson, Laura B. Richardson and Christina N. Dow, are, as plaintiff is informed and believes, the heirs at law of Gibbs James, deceased. That the plaintiff, Santee River Cypress Lumber Company, is a corporation created by and existing under the laws of the State of South Carolina.
"Wherefore, plaintiff demands judgment:
"(a) That the defendants, and especially the defendants, J. Louis Elliott and R.M. Elliott and their agents, employees and servants, under a rule to show cause, be enjoined and restrained during the pendency of this action, from committing any of the acts herein complained of, upon any and all of the premises described or referred to in the foregoing complaint, as being a part of the lowlands therein mentioned.
"(b) That during the pendency of this action, this Honorable Court do order a survey of the premises herein involved to be made, which shall show the lay and nature of the territory involved so as to enable the Court to arrive at a just and true solution of the questions here presented.
"(c) That this Honorable Court do adjudge that the plaintiff is entitled to all of the premises hereinabove claimed to be a part of the lowlands of the said Matt James Plantation.
"(d) That the plaintiff may have judgment against the defendants in the sum of Four Thousand Dollars actual, and Two Thousand Dollars punitive damages.
"(e) For such other and further relief as may be just and proper.
"(f) For the costs and disbursements of this action."
ANSWER"I. The defendants herein, answering the complaint of the plaintiff, deny that they have information or knowledge sufficient to form a belief as to the truth of the allegations contained in paragraphs I, II, III, IV, V, VI, and VII thereof.
"II. The defendants admit the allegation contained in paragraph VIII of the complaint.
"III. The defendants admit so much of paragraph IX as alleges that the heirs of Gibbs James, deceased, claim to be the owners of the highland of the `Matt James' plantation, and deny each and every other allegation therein contained except so much thereof as may be hereinafter specifically admitted.
"IV. The defendants admit the allegation contained in paragraph X of the complaint, except so much thereof as relates to Emma James.
"Further answering the complaint of the plaintiff, the defendants allege:
"I. That in the year 1889, Mrs. Annie S. Manning conveyed by deed the swamp lands of the `Matt James' plantation to the grantors and predecessors of the plaintiff — the premises conveyed being surveyed and located upon a plat by Simmons Huger made a part of the said deed.
"II. That the lands whereon the defendants, J. Louis Elliott and R.M. Elliott, have been engaged in cutting timber lie east of the said tract and wholly without the boundaries of same and are no part of the said lands conveyed by Mrs. Annie S. Manning to the grantors and predecessors of the plaintiff, Santee River Cypress Lumber Company.
"III. That in the year 1907, Gibbs James, being the owner in fee simple and seized and in possession of the lands in dispute whereon J. Louis Elliott and R.M. Elliott have been engaged in cutting timber, died intestate leaving as his sole heirs and distributees at law his widow, Emma James, and his children and grandchildren, Gibb James, Emma E. Johnson, Aaron James, Solomon James, Lee Ben Johnson, Louisa Singleton, Sallie Johnson, Napoleon Richardson, Gibb James Richardson, Irene Richardson, Emma Julianna Richardson, David Richardson, Susan Richardson, Laura B. Richardson and Christina N. Dow.
"IV. That Emma James died intestate in the year 1919, leaving as her sole heirs and distributees at law her children and grandchildren, the children and grandchildren of Gibb James above named.
"V. That the defendants, J. Louis Elliott and R.M. Elliott, purchased the timber which they have cut and are now cutting for a valuable consideration and went upon the said lands and cut timber in the belief that they had purchased the same from the owners thereof, after having been advised to that effect.
"For a second defense:
"I. That upon information and belief the defendants and their ancestors and predecessors in title have been in the open, notorious, adverse, exclusive, and continuous possession under claim of title furnished upon a written instrument for more than ten years next prior to the commencement of this action, of the premises in dispute in this action, same being all that tract of land bounded north by lands formerly of Eleanora N. Richardson, known as `Woodlond'; east by lands of the defendants herein other than J. Louis Elliott and R.M. Elliott; South by lands formerly of Miss Camilla Deas, now said to belong to the Santee River Cypress Lumber Company; and west by swamp lands of the Santee River Cypress Lumber Company — the line between it will more fully appear by reference to a plat made by Simmons Huger, Surveyors, dated 1889, and recorded in the R.M.C. office for Clarendon County in Book W.W., at page 191.
"For a third defense:
"I. That upon information and belief the defendants and their ancestors and predecessors in title have been in the open, notorious, adverse, exclusive and continuous possession for more than twenty years next preceding the commencement of this action of all that tract of land described in paragraph I above.
"Wherefore, The defendants pray that the said complaint may be dismissed; and for the costs of this action."
JUDGE'S CHARGE TO THE JURY"Mr. Foreman and gentlemen of the jury:
"This is an action brought by the Santee River Cypress Lumber Company, plaintiff, against Elliotts, or Elliotts and Jameses and others, as defendants and when I refer in what I have to say to you to plaintiff and defendant, I refer to all these defendants set out here, and you refer to the statement of the case and you will see the difference between them. There are a number of defendants set out, but the claims of the defendants are all of a similar nature; that is, there is no difference between the claims made by the different defendants. So, it is the same as if there were only one person making the claim.
"Now, the plaintiff brings this action and sets forth that it is the owner of a certain tract of land, and it describes that tract of land in the complaint. In the first paragraph you will see the description. It says it is bounded — giving the boundaries — `Bounded east by the highland of what was formerly known as the Matt James Plantation, now said to be the property of the heirs of Gibbs James, high-water mark being the boundary.' Now, then, it goes on and sets up that it has been in possession of this land for more than ten years; further that it has been in possession of it for twenty years or more; then, further, that it has been in continuous, adverse, exclusive and uninterrupted possession, founding the claim upon a written instrument, for more than forty years. That the lands consist of wild, uncultivated timbered lands in the lowlands of the Santee River, impracticable for actual residence or the usual uses of agricultural husbandry, being subject to frequent overflow from the floods of the said river. Then it sets forth that the defendants, J. Louis Elliott and R.M. Elliott have been cutting the timber on the eastern portion of these premises, and that they have damaged — I believe you said this $2,000.00 had been amended to $4,000.00?
"Mr. Seabrook: Yes, sir.
"The Court: Damaged them in the sum of Four Thousand Dollars. And the plaintiff asks certain relief, that is, that the plaintiff be determined to be the owner of the land; that the defendants be required to pay for the timber cut, and enjoined from cutting any more. Now, of course, you have nothing to do with the injunction, except that your verdict will determine whether or not an injunction should be granted by the Court. The relief that the plaintiff would get, or the relief that the defendant would get would follow your verdict. If your verdict says this land belongs to the plaintiff, and that the plaintiff is entitled to recover for the timber cut, that would mean that the land belonged to the plaintiff, and the defendant would be restrained from further trespass on the land.
"Now, the defendant comes into Court — the defendants — and in speaking of them as the defendant, I mean all of them — and they deny the allegations of the complaint, except in certain particulars. In other words, take paragraph eight of the complaint, and that alleges that the plaintiff is informed and believes that the defendants claim to have acquired some alleged right to cut the said timber by and through certain of the heirs of one Gibbs James, deceased. The defendants say they admit that they do claim a right. Then it sets forth who these defendants are and their relationship to each other. They admit that.
"Now, further answering the complaint and for a first defense they allege that in the year 1889, Mrs. Annie S. Manning, conveyed by deed the swamp lands of the `Matt James Plantation' to the grantors and predecessors of the plaintiff — that means the predecessors in title to the plaintiff; that means persons or corporations who owned it preceding the present plaintiff, which is a South Carolina corporation — the premises conveyed being surveyed and located upon a plat by Simmons Huger made a part of the said deed. And that the lands on which the Elliotts have been engaged in cutting the timber lie east of that tract and wholly without the boundaries of the tract belonging to the plaintiff, and are no part of the said lands conveyed by Mrs. Annie S. Manning to the grantors and predecessors of the plaintiff.
"That these defendants, J. Louis Elliott and R.M. Elliott, purchased the timber which they have cut and are now cutting for a valuable consideration and went upon the said lands and cut said timber in the belief that they had purchased the same from the former owners, after having been advised to that effect.
"They further set forth that the defendants and their anecstors and predecessors in title have been in the open, notorious, adverse, exclusive and continuous possession under a written deed, claiming title for more than ten years. And then they set forth that they have been in the open, notorious, adverse, exclusive and continuous possession for more than twenty years.
"Now, gentlemen, in order to simplify the matter of the verdict that you are to write, and in order that you may understand what I have to say with reference to that verdict, `I am going to tell you in the first instance that, if you find for the plaintiff, you need not say anything about the possession of the land. You simply say, "We find for the plaintiff so many dollars," and if you find for the defendant, you say, "We find for the defendant."'
"Now, as I stated to you while the complaint was being read and explained to you, that the plaintiff claims this timber that was cut by the Elliotts and the defendants claim it. Now, in order to establish the claim to the timber, the plaintiff claims the title to the land. That is, that they have title to the land, therefore, the timber belongs to the plaintiff, and having been cut by the defendants, the plaintiff is entitled to pay for it. Now, the defendant denies that, and claims that the land belongs to them or certain of them, and that this timber bought by the Elliotts, the money should be paid to these defendants, and not to the plaintiff.
"Well, now, I have been asked to charge you certain requests to charge, a good many of them referring to highwater mark; in fact, the boundary mentioned in some of these deeds, the boundary spoken of often in the trial of this case, with reference to these deeds or plats, have the words `High-water mark'; and that is one of the important questions in this case for decision. What is meant by `high-water mark' and what does `high-water mark' include? Now, in order that you may have the statements of law put in language that is clear, I am going to read you the requests to charge; that is, these are statements of the law prepared by the lawyers, some on one side and some on the other, that are put in proper form and stated succinctly, and in a great many instances quoted from law books. Now, the first request of the plaintiff I am going to charge you:
"1. `I charge you that the general rules for the correct location of a tract of land, in their order, are, first, natural boundaries; second, artificial marks; third, adjacent boundaries; fourth, course and distance; fifth, the shape of the plat.'
"The second request I am going to charge you:
"2. `I charge you that when a plat is referred to in a deed for the purpose of showing the shape of the tract of land conveyed, but not to fix angles, length of lines or distances will not control the boundaries stated in the deed. Likewise, where the deed describes the lot conveyed by metes and bounds, or by a natural boundary, and later on refers to a plat as representing them, the reference is not to enlarge or diminish the effect of the descriptive words.'
"Number three I charge you:
"3. `I charge you that high-water mark of the Santee River swamp is to be determined not from the human records, but from the records which the river makes itself.'
"The fourth I charge you:
"4. `I charge you that the law of location in this State applied to high-water mark excludes all of the methods of establishing the line of high-water mark, except the evidences which nature has established, because the first rule of location is to adopt a natural mark, if any there be; and high-water mark being a natural mark, no other indication is permissible to be used in locating it.'
"Number five I charge you:
"5. `I charge you that the presumption is in favor of the permanency of boundary lines; and the burden of proof is on the one averring that the location of the line has been changed by the action of the forces of nature.' That is correct.
"Number six is correct:
"6. `I charge you that where two parties purchased adjoining land from the same source, the description contained in the prior deed controls, since no subsequent deed from that source could deprive the prior purchaser of any portion of the land conveyed to him or them.'
"Number seven is correct:
"7. `I charge you that a properly recorded deed gives notice to all the world of what the purchaser has bought under such deed; and all subsequent purchasers are bound by such notice, it being their duty to search the records and inform themselves before buying.' That is correct.
"Now, whether — where a deed is incorrectly recorded, and a person acts upon the record, and having no notice that it is incorrectly recorded, acts within the law and within his rights. That is to say, where a person, dealing with a tract of land goes to the public records of the county, in the office where it should be recorded, and finds it recorded there, that person may act on the paper which is recorded, whether it is recorded correctly or not. That is to say, if there was something in the original which was not copied, or if it was copied wrong, the person who acts upon the recorded paper, acts within his legal rights, because it is the duty of the person having the paper recorded to have it recorded properly. In other words, if I take a deed to the Clerk of Court of this county to have it recorded, and by oversight or mistake, it is improperly recorded, and you, or one of you, acting on that record, does something with reference to it, and somebody suffers, I must suffer, because it is my duty to see that my paper is properly recorded. It is not your duty, when you go to see the paper, to come to me to see if it is properly recorded, unless it is clearly incorrectly recorded. The recording of a paper is the only notice of what is recorded, and somebody may act on that record and lose on it, if it is incorrectly recorded; but because it is defective does not necessarily hurt someone; of course, it would not hurt someone; of course, it would not hurt them unless they acted on that record, and was misled by it.
"Number eight I charge you:
"8. `The jury is charged that in determining the question of where the high-water mark is as to the land in dispute, you shall not consider any artificial marks on trees or the like, any question of course and distance, or any other human record; but are limited to but one method of determination, and that method is the evidences which nature has impressed upon the situation, and by which alone the high-water mark is determinable. This is true, because under the law of locations in this State, a natural mark called for in a deed as a boundary controls over everything else.' Now gentlemen, the only possible — the only variation of that would be, of course, an agreed line. If a line — and I don't mean to suggest to you anything at all about the evidence in this case, but if the seller and the buyer described in a deed a line bounded by a high-water mark, and went upon the ground and agreed upon the high-water mark, or what the high-water mark was, and mapped it out, of course that would be a different proposition.
"Now, the ninth request I am not going to charge in the language given, but rather, I am going to read you some authorities. I am reading you from 2 Farnham on Waters and Water Rights, page 1461: `High-Water Mark is the point below which the presence and action of the water are so common and usual and so long contained in all ordinary years as to mark upon the soil a character distinct from that of the banks, with respect to vegetation as well as with respect to the soil itself.'
"The defendants' request to charge is good law, and I read it to you as follows:
"1. `The technical meaning of the words "High Water Mark" is a mark or appearance on the ground made by and the result of, usual high water — it means a difference in soil or growth or both and does not refer to temporary floods unusual and brief which may cover large areas. These words in the deed from Annie S. Manning to Ferguson Beidler are to be given above construction unless there is something in the evidence to show that they were used with a different meaning. That is correct. Unless there is something else to indicate the meaning you are to give to the words `High Water Mark,' in this case, then the meaning is as I have just read to you.
"Before telling them about the burden of proof, is there anything else?
"Mr. Jennings: In view of that last request of the defendants, that the words in the Manning deed would have that meaning, I would like your Honor to charge the jury that the Manning Deed also states that the eastern boundary is the highland of the Matt James plantation.
"The Court: I can't talk to you about the evidence in the case, and tell you what is in the paper; you take these exhibits and you look at them and see what they are, and if you find anything in them that limits the words `High Water Mark' in any way, and change it from the ordinary use, then it is changed, but I have given you the ordinary use, or definition of those words in the ordinary use. It is neither my privilege nor my desire to have anything to do with deciding the facts or discussing the evidence with you, because that is your business; my business is merely to see that only proper evidence is introduced, and then give you the law so that you can apply it to that evidence. When I speak of evidence, I mean all that has been said by word of mouth, and all the exhibits. Anything further?
"Mr. Jennings: I didn't mean for your Honor to charge on the facts, but your Honor may construe a deed. I asked your Honor to tell the jury that the deed does first state that the eastern boundary is the highland of the Matt James plantation.
"The Court: I just a while ago told them that they must take the paper and consider it, and if they find it is limited, then it is limited. There is no use for me to tell you what is in there, because you can see it; I haven't read the deed. You take that deed, and if it says the high water mark is the line, and you undertake to find what the high water mark is, the law I have given applies. If it says something else is the high water mark, you take that into consideration.
"Mr. Durant: I would like for your Honor to charge the jury that the plaintiff must make out his case by the greater weight of the evidence.
"The Court: I am just leading up to that; before I got that I wanted to know if there is anything else.
"Mr. Durant: And that the plaintiff must recover on the strength of its own title.
"The Court: Other than that, there is nothing?
"When a plaintiff comes into Court to recover property or damage for its taking or its destruction, he must prove his claim of title. In other words, if A comes into court and claims certain property, he comes in as plaintiff, and brings B into Court, the first thing he has got to do is prove it is his; whether it is C's, D's or F's makes no difference, unless it is A's. The plaintiff must also recover upon the strength of his title and not upon the weakness of the title of the defendants.
"The plaintiff must prove his case by the greater weight or preponderance of the evidence. That is to say, having brought the defendants into court, the evidence in favor of the plaintiff must outweigh the evidence in favor of the defendants. You take all the evidence into consideration, and if it is evenly balanced, the defendant should have the verdict, and if it preponderates in favor of the defendants, the defendants should have the verdict, because the law requires that the evidence of the plaintiff must preponderate.
"Now, gentlemen, what you are to consider in the first place, of course, is who owns the timber that was cut. If you decide that the plaintiff was the owner of the trees before it was cut, then your next inquiry is, what should the plaintiff recover, what damage should plaintiff recover for the timber. Then you take into consideration the value of the timber at the time it was cut, and that would be the basis of your verdict if you find for the plaintiff. So, if you find for the plaintiff, the form of your verdict would be, `We find for the plaintiff so many dollars.' If you find for the defendants, the form of your verdict would be `We find for the defendants.'
"Now, I am not submitting to you the question of punitive damages. I am submitting the question to you of actual damages.
"Now, any time during your deliberations you may have there in your room any or all of the exhibits, that is, the deeds, plats or written testimony that has been read to you during the trial, and if, at any time, you desire any further instructions on the law, or wish to have any of the evidence read to you, let me know.
"Now, the paper marked summons for relief is the paper on which you will write your verdict."
Mr. M.W. Seabrook, for Appellant.
Mr. Charlton DuRant, and Epps Ley for Respondents.
December 5, 1929. The opinion of the Court was delivered by
This action was commenced in the court of common pleas for Sumter county, May, 1923. The pertinent allegations on the part of the plaintiff are, in substance, as follows:
That the plaintiff is the owner and is seized and possessed of a certain tract of land in Sumter county, containing about 1,500 acres, with title and possession in itself and its predecessors for 10, 20, and 40 years, respectively; and alleges a trespass by the defendants, J.L. Elliott and R.M. Elliott, and an unlawful cutting and conversion of the timber on the eastern portion of said lands under claim granted them by the other defendants.
On account of the alleged unlawful acts on the part of the defendants, the plaintiff asked for judgment against the defendants in the sum of $4,000 actual and $2,000 punitive damages, for a restraining order against the defendants, and that the plaintiff be adjudged to be entitled to the land in question.
Under the allegations contained in the defendants' answer, an issue of title and possession is raised to the part of said premises in question, that is, that portion on which the alleged trespass was committed. The parties claim title from a common source. The case was tried before his Honor, Judge E.C. Dennis, and a jury at the Spring term, 1926, of court of common pleas for Sumer county, and resulted in a verdict by the jury for the defendants. Following the rendering of the verdict, his Honor, Judge Dennis, issued a decree in the cause, in which decree his Honor approved the finding of the jury, stating that the verdict was in accordance with the evidence presented, and adjudged and decreed "that the defendants, heirs of Gibbs James, are the owners of the premises in dispute, the same being more definitely shown on plat made by P.G. Gourdin and G.T. Floyd, surveyors, under order of the Court heretofore made in this action and shown on said plat between the lines thereon designated as `Emmerson Line claimed by Santee River Cypress Lumber Company,' and the line therein designated as `line claimed by J.L. and R.M. Elliott,'" and refused the injunction prayed for. From the entry of judgment on the verdict and the decree issued by his Honor, Judge Dennis, the plaintiff has appealed to this court imputing error to his Honor as set forth under thirteen exceptions.
Appellant's first exception is as follows:
"His Honor having charged the Defendants' request defining their version of the meaning of `High Water Mark,' erred, it is respectfully submitted in refusing to charge, as requested by the plaintiff, that the Manning deed also states that the eastern boundary is the highland of the Matt James Plantation, and in charging instead as follows:
"`I can't talk to you about the evidence in the case, and tell you what is in the paper; you take these exhibits and you look at them and see what they are, and if you find anything in them that limits the words `High Water Mark' in any way, and change it from the ordinary use, or definition of those words in the ordinary use. It is neither my privilege nor my desire to have anything to do with deciding the facts or discussing the evidence with you, because that is your business, my business is merely to see that only proper evidence is introduced, and then give you the law so that you can apply it to that evidence. When I speak of evidence, I mean all that has been said by word of mouth, and all the exhibits,' etc., etc.
"This, it is respectfully submitted, was error because it was his Honor's and not the jury's duty to construe the deed and all the written exhibits; and his Honor's action prejudicially stressed to the jury only one, and that a secondary, element called for by the deed (`high water mark') and practically ignored and belittled the element which first occurred in the deed, and which, therefore, controlled in its construction, to wit: `the highland of the said Matt James Plantation,' which was especially prejudicial to plaintiff in view of the undisputed existence of the high bluff at the edge of the high land, at the foot of which the line claimed by plaintiff runs."
As contended by appellant, it is the duty of the trial judge to construe written instruments involved in the trial of a case, when it is necessary for the enlightenment of the jury. But the exception is not based on his Honor's refusal to construe the deed in question; it is based on his Honor's refusal to state to the jury, in his charge, "that the Manning deed also states that the eastern boundary is the highland of the Matt James plaintation." As stated by his Honor, Judge Denis, it was not his duty to state the evidence to the jury and that the members of the jury could read that for themselves. Furthermore, it appears from the Transcript of Record that the description contained in the deed to which the appellant refers had been read to the jury, and, further, the description contained in the deed in question, and under which the plaintiff claims, shows that the "high water mark of the swamp" constitutes the eastern boundary, and it is so alleged in the complaint. Under no view of the case had the appellant just ground to complain. This exception must be overruled.
In the second exception the appellant alleges error in in the following particulars:
"His Honor erred, it is respectfully submitted, in charging as follows in pursuance of request from the defendants, to wit:
"`"The technical meaning of the words `High Water Mark' is a mark or appearance on the ground made by, and the result of, usual high water — it means a difference in soil or growth or both and does not refer to temporary floods unusual and brief which may cover large areas. These words in the deed fom Annie S. Manning to Ferguson Beidler are to be given above construction unless there is something in the evidence to show that they were used with a different meaning." That is correct. Unless there is something else to indicate the meaning you are to give to words "High Water Mark" in this case, then the meaning is as I have just read to you.'
"This was error because it was a charge on the facts against the Constitutional inhibition; was defective in defining high water mark as the mark or appearance on the ground made by, and the result of, usual high water, whereas it should have said that it is the point to which the water rises at its highest average stage; and because the said charge left it to the jury to construe the Annie S. Manning deed, whereas, his Honor should have done so; and it prejudicially stressed to the jury only one, and that a secondary, element named by the deed as the boundary in question (`high water mark') and practically excluded and belittled the element which was first named in the deed, and therefore controlled, as his Honor should have held, in its construction, to wit: `the high land of the said Matt James Plantation.'"
In our opinion the charge complained of was not a charge on the facts, and we approve of the meaning assigned by his Honor, Judge Dennis, to the words, "High Water Mark." The exception is overruled.
The third and fourth exceptions are as follows: "His Honor erred, it is respectfully submitted, in refusing to charge the Plaintiff's ninth request as follows:
"`I charge you that high water mark is the point to which the water rises at its average highest stage.'
"Which was error as the above was a correct legal definition, applicable to the facts of this case and the deed to be construed."
"His Honor erred, it is respectfully submitted, in charging the jury as follows:
"`Now, the ninth request I am not going to charge in the language given, but rather, I am going to read you some authorities. I am reading you from 2 Farnham on Waters and Water Rights, page 1461: "High Water Mark is the point below which the presence and action of the water are so common and usual and so long contained in all ordinary years as to mark upon the soil a character distinct from that of the banks, with respect to vegetation as well as with respect to the soil itself.'"
"This was error because a charge on the facts against the Constitutional inhibition was defective, as applied to the evidence in this case, in omitting the important element that high water mark is the point to which the water rises at its highest average state; it erroneously confuses the high water mark of a river with the high water mark of a swamp, whereas it is the latter and not the former to be determined here; and imposes conditions inapplicable to the evidence here where the defendants' own testimony shows that when the water is in ordinary flood stage it does not even cover what they admit to be swamp, much less the disputed land."
We are unable to agree with appellant's contention. The meaning assigned by the circuit judge to the term in question is satisfactory to this Court, and we fail to see wherein the appellant was prejudiced by his Honor reading from a standard text-writer instead of charging the jury in the language requested by the appellant. The alleged errors charged under these exceptions are not sustained.
In the twelfth exception error is imputed to the presiding judge in charging the jury, in effect, that where a deed is incorrectly recorded, and a person acts upon the record, and having no notice that it is incorrectly recorded, such person acts within the law and within his rights. Error is alleged in two particulars: (1) Upon the ground that that is not the law of this state, and (2) upon the ground that the charge is not responsive to the evidence in the case.
Under the decisions of this court the appellant has properly abandoned the first ground. As to the second ground relied upon, in our opinion the charge was responsive to the evidence; but even if it be granted that the charge was not responsive to the evidence the charge was not prejudicial to the plaintiff.
In the thirteenth exception error is imputed to the presiding judge in charging the jury as follows: "I am going to tell you in the first instance that, if you find for the plaintiff, you need not say anything about the possession of the land. You simply say, `We find for the plaintiff so many dollars,' and if you find for the defendant, you say, `We find for the defendant.'"
We have considered the reasons assigned by appellant for the alleged error imputed to the presiding judge, but we are not impressed with the reasons stated.
This instruction to the jury was given near the close of the charge in connection with all that his Honor had stated leading up to that point, and especially in connection with the instruction given on that phase of the case. Summing up, his Honor charged the jury in that connection as follows:
"Now, gentlemen, what you are to consider in the first place, of course, is who owns the timber that was cut. If you decide that the plaintiff was the owner of the trees before it was cut, then your next inquiry is, what should the plaintiff recover, what damage should plaintiff recover for the timber. Then you take into consideration the value of the timber at the time it was cut, and that would be the basis of your verdict if you find for the plaintiff. So, if you find for the plaintiff, the form of your verdict would be, `We find for the plaintiff so many dollars.' If you find for the defendants, the form of your verdict would be `We find for the defendants.'"
In our opinion his Honor gave the proper instruction to the jury, and this exception should be overruled.
Under the fifth exception appellant makes the following contention:
"His Honor erred, it is respectfully submitted, in charging the jury as follows:
"`When a plaintiff comes into Court to recover property or damage for its taking or its destruction, he must prove his claim of title. In other words, if A comes into Court and claims certain property, he comes in as plaintiff, and brings B into Court, the first thing he has got to do is prove it is his; whether it is C's, D's or E's makes no difference, unless it is A's. The plaintiff must also recover upon the strength of his title and not upon the weakness of the title of the defendants.'
"This was error because this was an action of trespass quare clausum fregit in which form of action it was not legally incumbent upon the plaintiff to recover on the strength of its title, but it was sufficient to make out plaintiff's case by merely showing possession on the part of the plaintiff, which had been invaded by the defendants, which was done."
Under the authority of the case of Battle v. De Vane et al., 140 S.C. 305, 138 S.E., 821, and authorities therein cited, this exception must be sustained; and because of the full discussion of this question in the opinion in that case, written by Mr. Justice Cothran, we consider it unnecessary to discuss the question here. This exception is sustained.
Exceptions 6, 7, 8, 9, 10, and 11, which impute error to the presiding judge in the admission of testimony, will not be considered for the reason that we deem it unnecessary.
It is the judgment of this Court that the judgment of the Circuit Court be, and is hereby, reversed, and the case remanded for a new trial.
MR. CHIEF JUSTICE WATTS and MR. JUSTICES COTHRAN, BLEASE, and STABLER concur.