Beaufort Land & Investment Co. v. New River Lumber Co.

• Decision Date: 18 July 1910
• Citation: 68 S.E. 637,86 S.C. 358
• Parties: BEAUFORT LAND & INVESTMENT CO. v. NEW RIVER LUMBER CO.
• Court: South Carolina Supreme Court

68 S.E. 637

86 S.C. 358

BEAUFORT LAND & INVESTMENT CO. v. NEW RIVER LUMBER CO.

Supreme Court of South Carolina

July 18, 1910

Appeal from Common Pleas Circuit Court of Beaufort County; J. W. De Vore, Judge.

Action by the Beaufort Land & Investment Company against the New River Lumber Company. From a judgment for defendant plaintiff appeals. Reversed and remanded.

W. J Thomas and W. L. Clay, for appellant. W. Huger Fits Simons for respondent.

WOODS J.

The verdict and judgment were in favor of the defendant. The numerous exceptions submitted on behalf of the plaintiff relating mainly to alleged errors in the charge of the circuit judge, will be more clearly understood after a brief statement of the pleadings.

The complaint alleges "that the plaintiff is the owner in fee and in possession of that tract of land known as the 'Crapse Purchase' or 'Wiggin Land,' containing 1,800 acres, more or less, according to a plat made by O. P. Law, surveyor, April 17, 1885, and has the following distances and bearings; *** that the defendant, its agents, and servants at numerous times have entered on the land with force and arms and cut much valuable timber and committed irreparable waste thereon, and, disregarding plaintiff's warnings, threatened to continue the acts of trespass; that the said acts of defendants are without any right or authority whatever and contrary to law and are an irreparable loss to plaintiff; that the defendant could not respond in damages, and that plaintiff has already been damaged to the amount of $2,000." The prayer is for judgment for $2,000 and for an injunction against further trespass.

The defendant by its answer, in addition to a general denial, alleges 20 years' possession in itself and its grantors, and specifically denies that the plaintiff and those under whom it claims have been in possession of the land within 20 years, or within 10 years, prior to the commencement of the action; it alleges further that any right which the plaintiff may have had accrued more than 10 years before the commencement of the action; and that the land is the property of W. R. Pritchard and others, who conveyed to the defendant the timber thereon, and that defendant's entry was made under that conveyance.

Under these pleadings the court charged: "I charge you that before you can render a verdict in behalf of the plaintiff for damages in this case you must be satisfied from the evidence that the plaintiff has a complete and perfect title to the land described in the complaint." The plaintiff contends that while this is a correct statement of the law in an action to recover possession of land, it was erroneous in this action, which was not to recover possession, but for damages for a trespass, and that therefore the charge should have been to the effect "that if the plaintiff has satisfied you that it was in actual possession of the tract of land described in the complaint, and that defendant has committed trespass within the lines of said tract, then the plaintiff will be entitled to recover, unless the defendant has satisfied the jury that it has good title in itself to the land upon which the alleged trespass was committed, or that it did the acts complained of as trespass by the permission or under a license from the real owner of the land."

The important question is thus raised whether a plaintiff alleging both title and possession is entitled to recover damages upon proof of his possession and the invasion of it by the defendant, without proving also that he has a perfect title. The question must be answered in the affirmative. One person who finds another in possession of land cannot, by seizing the possession or invading it, put him whose possession he seized or invaded to proof or his title. In such a case possession is prima facie evidence of title and he who invades it must establish his title. If this were not so, a holder of land could be put to proof of title against the world by any one who might choose to trespass or squat upon his lands. This conclusion is well supported by authority. When the plaintiff alleges an invasion of his possession this gives character to the action, as one in the nature of the old action of trespass quare clausum fregit. Couch v. Burke, 2 Hill, Law, 534; Connor v. Johnson, 59 S.C. 115, 37 S.E. 240.

The court in Young v. Watson, 1 McMul. 449, intimated by the words we have italicized that the possession of a plaintiff of which he had been deprived by the entry of a defendant would support even an action of trespass to try title, for the court said, as to the mere prior possession of the plaintiff: "It cannot be allowed to prevail against the actual possession of the defendant, who did not enter upon the plaintiff, and which, for aught that appears might be as rightful as that which the plaintiff formerly held;" and Judge O'Neall, in a concurring opinion, said: "When the plaintiff's possession, actual or constructive, is entered upon, I think such possession is evidence of title to put the defendant to prove his title." In Connor v. Johnson, supra, the court held that the action was in the nature of trespass quare clausum fregit; that is, an action for the invasion of the possession of plaintiff, where the complaint alleged the plaintiff to be in possession under a paper title, and that the defendant had trespassed, and the answer denied all the allegations, including, of course, the allegations of plaintiff's possession and his paper title, and set up title in defendant. In such an action it was held that it was only necessary for the plaintiff to show possession, and that for defendant to prevent a recovery it was not sufficient to show that the plaintiff had no title, but that he must show title in himself. That case seems conclusive of the point under discussion. To the same effect is Hillhouse v. Jennings, 60 S.C. 401, 38 S.E. 599, where the court says: "We may say, however, that when the allegations of the complaint are such as would have sustained an action of trespass quare clausum fregit under the former practice, peaceable possession alone is sufficient to support the action, and throws upon the defendant the burden of proving the better title." Watts v. Blalock, 17 S.C. 163; Turner v. Poston, 63 S.C. 244, 41 S.E. 296. In the case last cited the reason for the rule is thus well stated: "If the defendant in this case had brought his action against the plaintiff, he could not have recovered on such a title as he has shown in this case, and he cannot be allowed to put himself in a better position by committing a trespass on the plaintiff. The right of possession is a very sacred one, and the court will not allow the repose which it gives to be endangered by giving improper advantages to a trespasser. If defendant had a good title he should have resorted to the courts, where he could have obtained any redress to which by law he was entitled." The same principle has been laid down by the Supreme Court of the United States in Burt v. Panjaud, 99 U.S. 180, 25 L.Ed. 453; Bradshaw v. Ashley, 180 U.S. 59, 21 S.Ct. 297, 45 L.Ed. 423, and other cases. The cases relied on by defendant's counsel are very clearly distinguished, and are in no sense opposed to the...