West Virginia Pulp & Paper Co. v. Cone

Decision Date07 February 1946
Docket NumberNo. 5442.,5442.
Citation153 F.2d 576
PartiesWEST VIRGINIA PULP & PAPER CO. v. CONE.
CourtU.S. Court of Appeals — Fourth Circuit

Christie Benet, of Columbia, S. C., and Charles W. Waring, of Charleston, S. C. (D. A. Brockinton, of Charleston, S.C., and J. B. S. Lyles, of Columbia, S. C., on the brief), for appellant.

H. Wayne Unger, of Walterboro, S. C., and James P. Mozingo, of Darlington, S. C. (Jefferies, McLeod & Unger and W. J. McLeod, Jr., all of Walterboro, S. C., on the brief), for appellee.

Before SOPER and DOBIE, Circuit Judges, and GILLIAM, District Judge.

DOBIE, Circuit Judge.

Andrew N. Cone, hereinafter referred to as plaintiff, brought an action in the Court of Common Pleas for Colleton County, South Carolina, against West Virginia Pulp and Paper Company, a Delaware corporation, hereinafter referred to as the Paper Company, or as defendant, claiming $25,000 damages for trespasses by the defendant in entering plaintiff's land and cutting and removing timber therefrom. The case was removed to the United States District Court for the Eastern District of South Carolina on the ground of diversity of citizenship and was tried with a jury at the May Term, 1945.

The plaintiff's amended complaint alleged that he was the owner of a tract of land situate in Dorchester County, South Carolina, consisting of 106.5 acres, which had been conveyed to him by his mother, Caroline F. Cone, in 1920, and that he had thereafter been in quiet, peaceable and exclusive possession of this tract of land for more than twenty years. He further alleged that the defendant, its agents and servants, had entered thereon in September, 1941, without the plaintiff's knowledge or consent, and had cut and removed a large quantity of timber. The defendant entered a general denial and, after two pre-trial conferences, the case came on for trial.

The action was in the nature of the old common law action of trespass quare clausum fregit, which bases the plaintiff's right to recover upon the injury to his possession. Hence the defendant's general denial put plaintiff first to the proof of such possession, actual or constructive, as would maintain an action. The South Carolina authorities are clear that plaintiff might do this by proof either of actual physical possession, the pedis possessio, or by proof of a perfect legal title, from which constructive possession is presumed. Beaufort Land & Investment Co. v. New River Lumber Co., 86 S.C. 358, 68 S.E. 637, 30 L.R.A.,N.S., 243; Haithcock v. Haithcock, 123 S.C. 61, 115 S.E. 727, 734; Section 377, Code of South Carolina 1942. Constructive possession may also be shown by other methods, as by physical occupancy of part of a tract under color of title, whereby constructive possession of the entire tract is said to be established; but we are here dealing with wild and unoccupied lands, and no actual physical occupancy of these lands was either claimed or proved by plaintiff.

At the trial plaintiff undertook first to prove his legal title. This he might do in any one of four ways: (1) By producing a grant from the State and connecting himself by an unbroken chain of paper title; (2) by tracing his paper title back to a common source and proving the better title therefrom; (3) by showing that he, together with those under whom he claimed, had been in adverse possession continuously for twenty years, whereby a presumption of a grant would have arisen; or (4) by proving that he himself had been in adverse possession continuously for a period of ten years. Thomas v. Dempsey, 53 S.C. 216, 220, 31 S.E. 231, 233; Haithcock v. Haithcock, 123 S.C. 61, 66, 115 S.E. 727, 729. Admittedly, he made no serious attempt to qualify under either of the first two of these methods, since he produced no paper title back of 1888 and was unable to connect up by admissible evidence the title back of his immediate grantor, his mother, who, it was stated, had acquired the property in 1917. In this connection it may be noted that plaintiff's deed from his mother, contrary to almost universal practice, makes no mention whatsoever of the source of his grantor's title.

It may be interjected here that harmful error unquestionably took place in the admission and failure to take from the jury of testimony with respect to the plaintiff's purported chain of title prior to the deed from his mother to him. All this testimony was admitted by the judge "subject to it being connected up with the present owners," yet when a motion to strike it for failure so to connect this testimony was made, the judge denied the motion, stating that this was a matter for the jury. The confusion made possible by this retention of inadmissible evidence as to the state of the plaintiff's title is best exemplified by the fact that the judge himself speaks of the "lost deed" from plaintiff's father to his mother, although there is not a single scrap of testimony in the record that the deed was lost or in any other manner accounted for, nor was even its original existence ever testified to by anyone who had seen it.

Returning to the details of the plaintiff's proof, we find that his inability to establish proper paper title left him dependent upon proof of adverse possession, either for ten years in himself, or for twenty years in himself and those under whom he claims, if he was to establish title as a basis for the present action. The extent of the adverse possession required as to unenclosed and unimproved lands is stated by the statute to be "where * * * it has been used for the supply of fuel or of fencing timber, for the purposes of husbandry, or the ordinary use of the occupant." Section 379, Code of South Carolina 1942.

The quality of the plaintiff's proof as to any such possession left much to be desired. Accepting his own testimony at face value, he had hunted on it, although not every year, had cut and sawed some fallen trees for clapboard in 1923 or 1925 "and all through there," and would camp upon it for as much as a week at a time during hunting season. However, he had never posted it, claimed never to have seen either the fire line cut by the CCC in 1935 or the posted signs regularly maintained by the defendant, both of which were testified to by several witnesses, and finally summarized his actions in the following words: "After I moved away from there (in 1923) I didn't do nothing." Aside from this testimony, the only other evidence of his possession was that he paid taxes on the property and that his father, in his behalf, had given one other individual permission to hunt on the property.

Such sporadic acts do not satisfy the requirements to constitute adverse possession. Among the many decisions on this point, reference is made to only a few. From this Court, in another South Carolina case, we find the following statement in an opinion by Judge Woods in Mullins Lumber Co. v. Williamson & Brown Land & Lumber Co., 4 Cir., 255 F. 645, 647:

"The land in dispute was wild swamp land, incapable of cultivation. The testimony relied on to establish adverse possession proved no continuous use or acts of trespass, but only occasional cutting of timber. This is not sufficient to establish the requisite continuity of possession. Bailey v. Irby, 2 Nott & McC., S.C., 343, 10 Am.Dec. 609; Duren v. Sinclair, 22 S.C. 361-366; Love v. Turner, 78 S.C. 513-519, 59 S.E. 529. * * *"

In the case of Lewis v. Pope, 86 S.C. 285, 68 S.E. 680, 683, the following statement was specifically approved:

"He cannot succeed in such claim (of adverse possession) by living on another tract and cultivating for a few years a small patch on the tract he claims, or by going on such tract and sometimes cutting wood or timber, and hauling it off for use on the tract on which he lives, but he must show that he has been doing that for 10 consecutive years."

From an exhaustive analysis of the authorities in Weston v. Morgan, 162 S.C. 177, 160 S.E. 436, at page 445, the following summary may be quoted:

"A plaintiff claiming title by adverse possession must show the extent of his possession. Cantey v. Platt, 2 McCord 260.

"The burden of the proof of adverse possession is on the one relying thereon. Gourdine v. Fludd, Harp., S.C., 232.

"Occasional and temporary use or occupation does not constitute adverse possession. Atlantic C. L. R. Co. v. Searson, 137 S.C. 468, 135 S.E. 567.

* * * * * *

"And to constitute adverse possession it must be open, notorious, exclusive, hostile, continuous, and unbroken for the whole period. Hill v. Saunders, 6 Rich., S.C., 62; Ouzts v. McKnight, 114 S.C. 303, 103 S.E. 561; Clary v. Bonnett, 114 S.C. 452, 459, 103 S.E. 779; 1 R.C.L. 700-716.

"Successive possessions for less than the statutory period cannot be tacked, unless by descent cast. King v. Smith, Rice, S.C., 10; Porter v. Kennedy, 1 McMul., S.C., 354; Garrett v. Weinberg, 48 S.C. 28, 26 S.E. 3.

"Occasional or temporary use or occupation is not sufficient. Jackson v. Lewis, Cheves, S.C., 259; McCullough v. Wall, 4 Rich., S.C., 68, 53 Am.Dec. 715."

And further, with reference to the necessity of establishing continuity of such adverse possession, the following statement is taken from Cathcart v. Matthews, 105 S.C. 329, 89 S.E. 1021, at page 1025:

"`It has been said that, if there be one element more distinctly material than another in conferring title by adverse possession, where all requisites are so, it is the existence of a continuous adverse possession. There must be such continuity of possession as will furnish a cause of action for every day during the whole period required to perfect title by adverse possession.' 2 Corpus Juris, 82; Porter v. Kennedy, 1 McMul., S.C., 354; Hill v. Saunders, 6 Rich., S.C., 62; Massey v. Duren, 3 S.C. 34."

From all the foregoing, it seems obvious that the plaintiff here has failed to establish such possession, actual or constructive, as to establish his title to the property. Having failed to establish title, his action must fail...

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8 cases
  • Johnson v. New York Co
    • United States
    • U.S. Supreme Court
    • November 17, 1952
    ...Cone was tried on the assumption that proof of constructive possession would sustain the cause of action; the Court of Appeals, 4 Cir., 153 F.2d 576, definitively disposed of the litigation by holding that actual possession must be proved. In Globe the plaintiff secured a verdict on the bas......
  • Britt v. Allen
    • United States
    • North Carolina Supreme Court
    • January 31, 1977
    ...had been improperly admitted and that without this evidence, the plaintiff's case would be insufficient to go to the jury. (153 F.2d 576 (4th Cir. 1946). It then reversed the judgment of the trial court and directed that judgment be entered for the defendant. In reversing the decision of th......
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    • January 15, 1948
    ...Virginia Pulp & Paper Co., 330 U.S. 212, 67 S. Ct. 752, reversing a direction of judgment by an appellate court, West Virginia Pulp & Paper Co. v. Cone, 4 Cir., 153 F.2d 576, because no motion for judgment notwithstanding the verdict had been made. In so deciding, the Court pointed out that......
  • Karn v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 2, 1946
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