Brogdon v. D.W. Alderman & Sons Co.

• Decision Date: 18 January 1932
• Docket Number: 13329.
• Citation: 163 S.E. 795,165 S.C. 234
• Parties: BROGDON v. D. W. ALDERMAN & SONS CO.
• Court: South Carolina Supreme Court

163 S.E. 795

165 S.C. 234

BROGDON v. D. W. ALDERMAN & SONS CO.

No. 13329.

Supreme Court of South Carolina

January 18, 1932

Appeal from Common Pleas Circuit Court of Sumter County; T. S Sease, Judge.

Action by Susan R. Brogdon against D. W. Alderman & Sons Company. From order of survey, plaintiff appeals.

Affirmed.

Appellant's exceptions, ordered to be reported, are as follows:

Exceptions.

His honor erred, it is respectfully submitted, in making said order of survey over the objection of plaintiff, for the following reasons:

Exception I: This order introduced into the case, and could only be applicable to, a separate and independent issue, the location of a boundary line, a matter of equitable cognizance; and this could not be done under the pleadings in this case, without the consent of both parties.

Exception II: This being an action in Quare Clausum Fregit, possession alone on the part of the plaintiff is sufficient to maintain the same, and plaintiff's title is not brought into question; and in such case there is no warrant in law for an order of survey.

Exception III: The Statute Law and rules of Court provide for an order of survey only where the titles or boundaries of lands are properly brought into dispute. The defendant nowhere claimed legal title in itself to any part of the land trespassed upon, and it did not appear that there was any boundary line in dispute between any land claimed to be in the possession of the plaintiff and that which the defendant claimed to have legal title.

Exception IV: The defendant failed to show in this case any right to an order of survey and his honor therefore erred in granting the same.

Epps & Levy, of Sumter, for appellant.

Lee & Moise and M. M. Weinberg, all of Sumter, and A. C. Hinds, of Kingstree, for respondent.

CARTER J.

This suit, commenced in the court of common pleas for Sumter county, by Susan R. Brogdon, plaintiff, against the defendant, D. W. Alderman & Sons Company, is an action for damages on account of an alleged trespass made by the defendant upon certain lands in Sumter county. After filing answer the defendant, upon due notice, moved before the court for an order permitting the defendant to "have its surveyor view and survey the land in the vicinity of that referred to in the complaint and to permit witnesses for the defendant to enter upon and view said area," and failing in this motion, for an order of survey provided for under the Code. The motion was heard before his honor, Judge T. S. Sease, February 23, 1931, on the pleadings in the cause and supporting affidavits, for and against the motion. After hearing argument by counsel, and upon due consideration, his honor, Judge Sease, issued an order in the cause, refusing the first two requests stated in the motion but granting an order of survey, provided for under the Code. From the said order the plaintiff has appealed to this court, upon exceptions which will be reported with the case.

Section 5308, volume 3, Code 1922, under which the order was issued reads as follows: "If any cause be depending in the Circuit Courts, or within the jurisdiction of the same wherein the titles or boundaries of lands or plantations shall be brought into...