Alford v. Tamsberg, 2007-UP-350

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
PartiesVirginia W. Alford, Appellant, v. Joseph L. Tamsberg, Jr. and State of South Carolina, Respondents.
Docket Number2007-UP-350
Decision Date06 July 2007

Virginia W. Alford, Appellant,

Joseph L. Tamsberg, Jr. and State of South Carolina, Respondents.

No. 2007-UP-350

Court of Appeals of South Carolina

July 6, 2007


Heard May 9, 2007

Appeal From Charleston County Roger M. Young, Circuit Court Judge

Donald Jay Budman, of Charleston, for Appellant.

Attorney General Henry D. McMaster, Deputy Attorney General T. Stephen Lynch, Assistant Deputy Attorney General J. Emory Smith, Jr., all of Columbia and David M. Swanson, Marvin D. Infinger and Julie O. Medich, all of Charleston, for Respondents.


In this action to try title, Virginia Alford argues the master in equity erred in finding Joseph Tamsberg established title to marshlands through adverse possession. She also contends the master erred in (1) finding res judicata barred her claim; (2) denying her motion for a new trial; and (3) dismissing her claim for trespass. We affirm.


Alford and Tamsberg are adjoining landowners. Both properties consist of highlands and marshlands. At issue in this case is a 150 acre tract of marshland that is, essentially, all of the marshland Tamsberg owns, which Alford claims title to. Alford also claims the boundary line in the center of a canal, or ditch as it is often referred to, between the highland portion of the two properties is incorrect (Highland Dispute). She alleges the boundary line should be placed on the northern side of the canal on Tamsberg's property.

Alford can directly trace the title to her property back to 1839, to a deed from Thomas Butler to her relative, Thaddeus C. Skrine. Prior to 1951, Tamsberg's property consisted of two parcels of land owned by Belmont Land and Investment Company (Belmont Land). In 1951 the first known survey (Belmont Survey) of the two parcels was commissioned. On April 18, 1956, Belmont Land conveyed the two parcels, as shown on the 1951 Belmont Survey, to Belmont Hosiery Mills, Inc. (Belmont Hosiery).

In 1961, Alford commenced an action against Belmont Hosiery, for recovery of 40 acres of marshland. The parties settled the suit by Belmont Hosiery quitclaiming the disputed 40 acres to Alford. The marshlands deeded to Alford were depicted on the settlement plat prepared by W.S. Gaillard. After the parties reached the settlement, the trial court dismissed Alford's claim with prejudice.

In 1967, Alford commissioned Gaillard to prepare a survey of her property. In 1968, Alford consolidated all her property into one deed and one plat.” The deed identified the property as fully described and delineated by a plat of W.L. Gaillard, Surveyor, dated April 1967” (1967 Alford Survey).

On May 30, 1968, Belmont Hosiery conveyed the land, minus the 40 acres of marshland deeded to Alford, to Heritage Development Company (Heritage). By a Certificate of Merger, Heritage merged into Parkdale Mills, Inc., (Parkdale), Tamsberg's immediate predecessor. On January 30, 1990, Tamsberg purchased the property from Parkdale. For this purchase, Tamsberg had a survey prepared by Luckey Sanders (1990 Tamsberg Survey). All of the surveys since 1951, including the 1967 Alford Survey, show the boundary lines of the adjoining property as depicted on the 1951 Belmont Survey prepared by Gaillard.

On January 26, 2000, Alford initiated this action, seeking to quiet title to a part of Tamsberg's marshlands. She also sought to quiet the boundary between the adjoining lands. The case was referred to the master, and on September 14, 2000, the parties' partially tried the case. Shortly thereafter, the parties reached a settlement. Alford moved to have the settlement quashed, and the master granted her motion. Due to the complexity of the case, Alford received numerous extensions.

On February, 14, 2002, the master concluded that because the parties disputed title to marshlands, the State of South Carolina, as presumptive owner of all tidelands, would have to be made a party to the case. On January 28, 2003, Alford amended her complaint to reflect her finding of a 1797 grant from the State of South Carolina to Skrine's immediate predecessor in title, Joseph Butler (Butler Grant). Essentially, Alford claimed that because she showed her title emanated from a grant from the State and Tamsberg could not trace his title back to a grant from the State, she owned all of Tamsberg's marshlands.

a hearing on June 18 and 19, 2003, the master found the State of South Carolina had divested itself of any marshlands conveyed by the Butler Grant. Therefore, the master found both Tamsberg and Alford's claim to their respective marshes was superior to the State's claim. Additionally, the master found the 1967 Alford Survey and the 1951 Belmont Survey both refer to the boundary line between the adjoining properties as ditch the line.” The master also found the unrecorded 1886 Royall Plat also placed the boundary line at the center. Accordingly, the master concluded that the surveys place the line in the center of the ditch. Further, the master found the 1990 Tamsberg survey also described the boundary line as ditch on or near property line.”

As to the marshland, the master found all of the surveys were in agreement as to the boundary lines of the two properties. The master found that Tamsberg's 60 year chain of title included the marshlands; however, his title could not be traced to Butler or Skrine. Due to the doctrine of adverse possession, the master concluded that Tamsberg had ownership of the marsh through the presumption of a grant theory. Additionally, the master found section 15-3-380 of the South Carolina Code (2005), the forty-year lapse statute, provided Tamsberg with good title. Further, the master found Alford acquiesced to Tamsberg's use of the marshlands for 32 years. Lastly, the master noted that res judicata barred Alford's claim because of the previous suit with Tamsberg's predecessor in title, Belmont Hosiery.

Alford filed a motion under Rule 59(e), SCRCP, to alter or amend the judgment, which the master denied. The master also denied Alford's motion for a new trial based on after discovered evidence. This appeal followed.


Normally, an action to quiet title to property is one in equity. Clark v. Hargrave, 323 S.C. 84, 86, 473 S.E.2d 474, 475 (Ct. App. 1996). However, the character, as legal or equitable, of an action is determined by the complaint in its main purpose, the nature of the issues as raised by the pleadings... and the character of the relief sought under them.” Id. (citing Ins. Fin. Serv., Inc., v. S.C. Ins. Co., 271 S.C. 289, 247 S.E.2d 315 (1978).

Alford alleged in her complaint that Tamsberg owned no marshland and that she had superior title to his land. Tamsberg, in his answer, responded that he possessed fee simple title to the marshlands and asserted adverse possession as an affirmative defense. Because this action primarily involves the determination of title to real estate based on adverse possession, it is an action at law. Id. at 87, 473 S.E.2d at 476 (holding an action primarily involving adverse possession can properly be characterized as an action at law). Additionally, a boundary dispute is an action at law. Bodiford v. Spanish Oak Farms, Inc., 317 S.C. 539, 544, 455 S.E.2d 194, 197 (Ct. App. 1995). In an action at law, on appeal of a case tried without a jury, the findings of fact of the judge will not be disturbed upon appeal unless found to be without evidence which reasonably supports the judges findings.” Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).


I. Highland Dispute

Alford argues the master erred in placing the boundary line between the adjoining properties down the center of the ditch. Alford argues the true boundary line, as depicted in the unrecorded 1886 Royall Plat, shows the boundary line is on the north side of the ditch. We disagree.

During the trial, Tamsberg presented Thomas Bessent, an expert in the field of land surveying. Alford originally hired Bessent to resurvey the property because she questioned the boundary line between the adjoining properties. Bessent testified he looked at the Belmont Survey, Alford Survey, and Tamsberg Survey, as well as the 1886 Royall Plat. He then went to the property to conduct his own survey. He opined the correct boundary line was the center of the ditch as depicted in the Belmont, Alford, and Tamsberg Surveys. In Bessent's expert opinion, even the Royall Plat shows the boundary line as the center of the ditch. He pointed out that the Royall Plat has a dashed black property line that clearly runs through the middle of the ditch. At the end of that black line is the word post.” According to Bessent, the black line is marked by a post, in the center of the ditch.

Alford presented Steve Johnson, also as an expert in surveying. He opined the boundary line was on the northern side of the ditch on Tamsberg's property. He testified that he used Alford's parol evidence to help him establish the boundary line.

We hold that the record overwhelmingly supports the master's finding that the boundary line is in the center of the ditch. The evidence shows that all of the surveys, including the 1886 Royall Plat, relied on by Alford, shows the boundary line as the center of the ditch. In fact, the only evidence to the contrary is Alford's expert, Johnson, who admitted to using Alford's parol testimony to aid” the rendition of his survey. Accordingly, we find the master properly concluded the true boundary line between the adjoining properties is the center of the ditch, as depicted by the various surveys.

II. Adverse Possession

Alford argues the master erred in finding Tamsberg obtained title to the marsh by adverse possession. Specifically, Alford contends Tamsberg cannot show...

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