Bodiford v. Spanish Oak Farms, Inc., 2302

• Citation: 455 S.E.2d 194,317 S.C. 539
• Decision Date: 12 January 1995
• Docket Number: No. 2302,2302
• Court: Court of Appeals of South Carolina
• Parties: J. David BODIFORD, Jr., Respondent, v. SPANISH OAK FARMS, INC., The United States of America Acting Through the Administrator of the Small Business Administration, and the Federal Land Bank of Columbia, Defendants, of whom Spanish Oak Farms, Inc., is, Appellant. . Heard

Page 194

455 S.E.2d 194

317 S.C. 539

J. David BODIFORD, Jr., Respondent, v. SPANISH OAK FARMS, INC., The United States of America Acting Through the Administrator of the Small Business Administration, and the Federal Land Bank of Columbia, Defendants of whom Spanish Oak Farms, Inc., is, Appellant.

No. 2302.

Court of Appeals of South Carolina.

Heard Jan. 12, 1995.

Decided Feb. 13, 1995.

W. Scott Palmer, Santee; and James D. Mosteller, III, Blackville, for appellant.

Thomas M. Boulware, Barnwell, for respondent.

HOWELL, Chief Judge:

J. David Bodiford, Jr., brought an action against Spanish Oak Farms, Inc., and others, to establish a boundary line between Bodiford's property and property owned by Spanish Oak Farms. Bodiford also sought damages for timber Spanish Oak removed from the disputed tract. The matter was referred to a special referee for final judgment, with any appeal directly to the Supreme Court. The referee found in favor of Bodiford and Spanish Oak appeals. We affirm.

At issue is approximately twenty-five acres of timber land in Barnwell County. Bodiford claims this was part of a tract of one hundred and seventy-four acres he purchased in 1987. This action arose after Bodiford discovered Spanish Oak had removed timber from about eight acres of the property. Bodiford's complaint alleges Spanish Oak's claim derives from erroneous plats which do not comport with older plats in Spanish Oak's chain of title or legal descriptions in deeds in Spanish Oak's chain. Bodiford sought a judicial determination of the boundary of his property as well as the adverse claim by Spanish Oak. Bodiford also sought damages for timber Spanish Oak removed from the disputed tracts. In its answer, Spanish Oak pled a general denial and agreed the court should determine the boundary between the parties' properties.

The parties advised the court they desired an independent survey of the property, and they agreed Donald Smith, a registered land surveyor, could serve this function. Smith concluded that Bodiford's property ended at the high-water mark of an old mill pond which once existed on the property, rather than the center line of Windy Hill Creek, as argued by Spanish Oak. Because the pond no longer existed, Smith made certain assumptions about the high water mark, concluding that it would have been about 2.5 feet below the lowest part of the mill pond dam. The result was that Bodiford owned the disputed property.

The special referee noted that he "carefully reviewed not only the testimony but also the exhibits offered by both parties." The referee agreed with Smith's conclusion that the high water mark of the old mill pond is the line between the parties' properties, and that the line is best determined by adopting the elevation of 2.5 feet below the lowest point on the mill dam. Accordingly, the referee found in favor of Bodiford and awarded him $2,400 in damages, representing $300 per acre, for timber Spanish Oak removed from the property. Spanish Oak appeals.

I.

Spanish Oak first argues the referee abused his discretion in relying upon Smith's testimony and written report. Spanish Oak's trial objections were as follows:

As to the exhibits as being outside of the scope of Mr. Smith's role in this case. He was appointed to conduct a survey for the benefit of the court and not render a written opinion based on his investigation of the public record.

* * * * * *

Your Honor, I renew my objection based again on the fact that the opinion appears to in effect be a legal opinion which Mr. Smith is not qualified to render, of course, and is not based on any findings he made with regards to markers, natural boundaries, artificial boundaries, artificial monuments or anything else. The court intended when he was appointed to "survey the boundary line between the parties," and is then outside of the scope of purpose of the court appointment and should not be admitted.

The referee ruled that Smith could not present legal conclusions to the court, but could present his opinion, and the referee interpreted Smith's report as "his opinion as to where he thinks the boundary line should be."

It is clear that Smith was offered as an expert witness, and that he was in fact competent to render expert testimony in the area of land surveying. While Spanish Oak challenged the scope of his duties, it did not challenge Smith's qualification as an expert. Thus, to the extent Spanish Oak's arguments on appeal can be viewed as challenging Smith's qualifications as an expert, they are rejected. By failing to challenge his qualifications at trial, Spanish Oak has waived the right to present that argument on appeal. As an expert in land surveying, Smith was qualified to review the relevant deeds and plats, and to render his opinion as to the location of the boundary.

Rule 43(m), SCRCP, was added to the Rules of Civil Procedure in 1990, and provides, in pertinent part:

Expert Testimony.

(1) Testimony by Experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

(2) Bases of Opinion Testimony by Experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

(3) Opinion on Ultimate Issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Hence, according to Rule 43(m)(3), Smith could render an opinion regarding the ultimate issue in the case to be decided by the special referee, who was the trier of the facts. The weight to be given Smith's testimony was a matter for the referee, as fact finder, and not this Court. The circuit court judge ordered Smith to survey the property and "report the findings of said survey" to the court. One of those "findings" is necessarily his opinion as to where the boundary lies between the parties' properties. We find no error by the referee in allowing Smith to render his opinion as to where the boundary line is, and in using Smith's opinion to make that factual finding.

Spanish Oak further argues that Smith's testimony should have been rejected by the trial court because (1) Smith did not use recognized surveying methodology; (2) Smith's opinion was arbitrary and based on conjecture; and (3) Smith rendered "inappropriate and incorrect" testimony about documents in Spanish Oak's chain of title. Spanish Oak cross-examined Smith to bring out the errors it now raises. While these challenges may raise questions about Smith's credibility or the weight to be given Smith's findings, they do not render Smith's testimony and report inadmissible. ¹ Accordingly, we reject Spanish Oak's challenges to Smith and his testimony. See Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (Ct.App.1985) (appellate court cannot judge the weight or credibility of testimony on appeal); Hibernian Society v. Thomas, 282 S.C. 465, 319 S.E.2d 339 (Ct.App.1984) (appellate court has no power to weigh conflicting evidence in a law case).

II.

Spanish Oak next argues, under Watson v. Suggs, --- S.C. ----, 437 S.E.2d 172 (Ct.App.1993), Bodiford failed to meet his burden of proof in this case. We disagree. Not every action involving disputed property is in the nature of a trespass to try title. Watson was tried by the parties as a trespass to try title; this action, however, was treated by both parties and the court as a boundary dispute. It was not until after the hearing that Spanish Oak first attempted to characterize Bodiford's action as a trespass to try title. The central issue in this action was the location of the boundary line between the properties of Bodiford and Spanish Oak. Accordingly, the trial court properly treated the action as a boundary dispute rather than trespass to try title.

A boundary dispute is an action at law, Clements v. Young, 310 S.C. 73, 425 S.E.2d 63 (Ct.App.1992), and the location of a disputed boundary line is a question of fact. Saluda...