Busby v. Florida Cent. & P.R. Co.

• Decision Date: 10 October 1895
• Citation: 23 S.E. 50,45 S.C. 312
• Parties: BUSBY v. FLORIDA CENT. & P. R. CO.
• Court: South Carolina Supreme Court

23 S.E. 50

45 S.C. 312

BUSBY v. FLORIDA CENT. & P. R. CO.

Supreme Court of South Carolina

October 10, 1895

Appeal from common pleas circuit court of Lexington county; J. H Earle, Judge.

Action by J. C. Busby against the Florida Central & Peninsular Railroad Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

C. J C. Hutson and Lyles & Muller, for appellant.

Andrew Crawford and Robt. W. Shand, for respondent.

McIVER C.J.

This was an action to recover damages caused by sparks of fire emitted from a locomotive engine of the defendant company which ignited combustible material on defendant's right of way, from which the fire spread over the lands of plaintiff. In defendant's answer, the allegation that the lands over which the fire spread belonged to the plaintiff was denied. This put the plaintiff to the proof of this title, for which purpose he relied upon adverse possession for the space of 15 years, but there was no evidence that the land had ever been granted by the state. It was, however, stated at the hearing that there was evidence that the plaintiff had been paying taxes on the land during the period of his adverse possession; and, by consent, the case was amended so as to embrace the testimony to that effect. At the close of plaintiffs' testimony, a motion for a nonsuit was made, upon the ground that the plaintiff had failed to show any title in himself to the land. His honor, Judge Earle, ruled that "where one shows ten years' adverse possession, whether under color of title or not,--shows actual occupancy for ten years, --holding the land as his own adversely, that he has such title, being shown by that proof, as will give him standing in court." Accordingly, the motion was refused; and, at the close of the testimony adduced on both sides, the jury were instructed as to the question of title, in accordance with the ruling on the motion for a nonsuit. A verdict having been rendered in favor of the plaintiff, and judgment having been entered thereon, the defendant appealed upon two grounds set out in the record, which substantially make the single question whether there was error in the ruling as to the question of title.

The precise question, as we understand it, intended to be presented by this appeal, is whether a party whose claim rests upon an assertion of title to real estate can establish such claim by proof of adverse possession for the statutory period, without first showing that the title to the real estate in question has passed out of the state. In the determination of this question two inquiries are presented (1) Whether adverse possession of real estate for the statutory period confers a positive, affirmative title, or simply operates as a bar to the claim of any person seeking to dispossess the person in possession. It is not to be denied that at one time it seemed to be supposed that adverse possession operated simply as a bar to an action to recover possession of the land. Accordingly, we find in the books the expression that the statute of limitations may be used as a shield of defense, not as a weapon of offense. But, on the other hand, we find in our own cases, which will be hereinafter referred to, dictate atleast which plainly recognize the doctrine that adverse possession of real estate for the requisite period does confer positive title, which may be asserted affirmatively. As is said by Mr. Justice Miller in Campbell v. Holt, 115 U.S., at pages 622, 623, 6 S.Ct. 209: "By the long and undisturbed possession of tangible property, real or personal, one may acquire a title to it or ownership superior in law to that of another who may be able to prove an antecedent, and at one time paramount, title. *** Mr. Angell, in his work on Limitations of Actions, says that the word 'limitation' is used in reference to the time which is prescribed by the authority of the law during which a title may be acquired to property by virtue of a simple adverse possession and enjoyment, or the time at the end of which no action at law or suit in equity can be maintained. 'Prescription, therefore, ' he says, ' is of two kinds; that is, it is either an instrument for the acquisition of property, or an instrument of an exemption only from the servitude of judicial process.' *** The English and American statutes of limitations have in many cases the same effect, and, if there is any conflict of decisions on the subject, the weight of authority is in favor of the proposition that where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his ownership, for the period which under the law would bar an action for its recovery by the real owner, the former has acquired a good title,--a title superior to that of the latter, whose neglect to avail himself of his legal rights has lost him his title. This doctrine has been repeatedly asserted in this court. [Citing the cases.] It is the doctrine of the English courts, and has been often asserted in the highest courts of the states of the Union." This doctrine is expressly recognized in Cantey v. Platt, 2 McCord, 260, in which Judge Huger, in delivering the opinion of the court, says: "To enable a plaintiff to succeed in his statutory claims to land, he must prove that he had possession of the land the full time required...