Holliday v. Jordan

• Decision Date: 14 May 1919
• Docket Number: 10198.
• Citation: 99 S.E. 465,112 S.C. 113
• Parties: HOLLIDAY v. JORDAN.
• Court: South Carolina Supreme Court

99 S.E. 465

112 S.C. 113

HOLLIDAY v. JORDAN.

No. 10198.

Supreme Court of South Carolina

May 14, 1919

Appeal from Common Pleas Circuit Court of Horry County; Thomas H Spain, Judge.

Action by Flora J. Holliday against Sarah Agnes Jordan. Judgment for plaintiff, and defendant appeals. Reversed.

The following is the third assignment of error:

(a) His honor erred, it is respectfully submitted, in granting the plaintiff's fourth request to charge, which was as follows:

"'Generally a survey is to be carried to its calls unless there be actual lines on the ground excluding them when such lines, constituting the survey, will control the calls; but when there are no actual monuments or lines called for, by which the closing line is to be fixed or ascertained and no line on the ground, the survey is to be closed by a direct line between the termini of the lines on the ground, or as fixed by the courses and distances returned to ascertain these termini. When all the calls cannot be observed, but the beginning point is established, lines should be run in both directions as far as possible, and the gap closed as seems most consistent with all the calls. In locating boundary lines, a line actually marked must be adhered to, although it varies from the course called for, and is not a right line from corner to corner.' I charge you that in connection with what I have already said in reference to the rules by which you will be governed in locating these land lines"

--in that, in charging said request, his honor charged the jury that:

"When there are no natural monuments or lines called for, by which the closing line is to be fixed or ascertained, and no lines on the ground, the survey is to be closed by a direct line between the termini of the lines on the ground, or as fixed by the courses and distances returned to ascertain these termini"--

without qualifying said statement in any way; whereas, it is respectfully submitted that the rule thus enunciated by his honor is a rule adopted for the convenience of surveyors for establishing lines, and in closing gaps where the data is vague and indeterminate, and where no question of adverse possession is raised, and that said rule can in no wise be employed to disturb or overthrow legal rights vested in or acquired by adjacent landowners, by adverse possession or otherwise.

(b) It is respectfully submitted that said charge was erroneous in this case, because the effect of applying the rule enunciated by his honor was, by the uncontradicted testimony, to take land from the defendant to which she was entitled by adverse possession and presumption of a grant, under the 10-year and the 20-year statutes, and to vest same in the plaintiff.

James W. Johnson, of Marion, and Stevenson & Prince, of Cheraw, for appellant.

H. H. Woodward, of Conway, and Henry Buck, of Marion, for respondent.

GAGE J.

The case involves the location of a line betwixt a parcel of land on the north and a parcel of land on the south. That parcel on the north was granted in the early history of the state to Cedar Hughes, and it is now owned by the plaintiff, Holliday. It will be referred to as the Hughes tract. That parcel on the south was also granted to Dawsey, and it is now owned by the defendant, Jordan. It will be referred to as the Dawsey tract. It does not appear when the Hughes grant was made; the Dawsey grant was made in 1780.

The location puts in issue some 150 acres of land, said by one of the briefs to be chiefly in a wooded swamp, now and for many years heretofore. Jordan bought the Dawsey tract in 1874 from J. W. Holliday, the father and mediate grantor of the plaintiff. Holliday had purchased the Dawsey tract from Kirton, and Kirton had purchased it in 1866 from McQueen, at which last-mentioned conveyance one Legette, a surveyor, made a plat of it for the parties.

The alleged refusal of the court to correctly charge the jury about the effect of that plat is, we think, the major issue of the case. A meager sketch of it is attached to this opinion and will be reported. Courses and distances and points and other matter not now material have been omitted in the sketch .

RPT.CC.1919013409.00010

(Image Omitted)

The issue tried was in effect whether the true line of division is A, B, C, which is the contention of the defendant, or A H, D, which is the contention of the plaintiff. The former line is that represented by the Legette plat; the latter line is that represented by the muniments of title of the Hughes tract.

Mr. Johnson, the civil engineer who testified for the plaintiff, in referring to the Legette plat, said that--

"This map, when located, goes over and across the southern boundary of the Hughes tract, * * * making a lap on the Hughes land of about 150 acres."

Mr. Johnson further testified:

"While we are sure that Levi Legette did actually locate the northern boundary of the map made by him, and that he did locate it very near the position of the line shown by dashes heretofore referred to, we have not seen any reason for that location, nor have we been able to find any one who ever remembered its observation or its existence, and it is impossible to find the physical line there now."

The other engineer, Mr. Adams, designated to make the survey with Mr. Johnson, testified:

"Mr. Jordan [manifestly a misprint for Johnson] and myself agreed that the dotted lines as shown on our plat running north of the Middle Bay Island through stake down was approximately the location of the Legette plat. We said approximately, because the only point on this northern line of the Legette plat which we could find was the stake down above referred to."

The witness further said:

"This Legette plat is one of the most complete and accurate plats that I ever saw (that is, old plats) in regard to his topography; this is particularly the case just after crossing the neck (or bay) just east of the stake down; if the line were shifted north or south a distance of about 100 feet, it would in either case go into bays, which the plat very clearly shows that it does not enter."

The witness Kirton testified that he sold the land now owned by Jordan to J. W. Holliday; that the same was conveyed to him by McQueen in 1866; that Legette made an actual survey of the land in question, going all around the lines, and noting marks as he found them and as they appear on his plat; and that the Legette plat represents the land he sold to Holliday. The import of the Legette plat, therefore, is of prime importance.

The defendant testified that on the day in which Holliday delivered to her husband, William, a deed to the land, he delivered along with it the Legette plat and the McQueen titles. The plaintiff's counsel has not denied that; nor did nor could the plaintiff's ...