Clary v. Bonnett

• Decision Date: 26 July 1920
• Docket Number: 10469.
• Parties: CLARY v. BONNETT ET AL.
• Court: South Carolina Supreme Court

103 S.E. 779

114 S.C. 452

CLARY v. BONNETT ET AL.

No. 10469.

Supreme Court of South Carolina

July 26, 1920

Appeal from Common Pleas Circuit Court of Aiken County; Edward McIver, Judge.

Action of trespass to try title by William Clary against C. C Bonnett and L. P. Bonnett. From a judgment for plaintiff defendants appeal. Affirmed.

J. B Salley, of Aiken, for appellants.

Sawyer & Gyles and R. L. Gunter, all of Aiken, for respondent.

HYDRICK J.

This is an action of trespass to try title to 3.6 acres of land. Defendant C. C. Bonnett disclaimed any interest, and justified his trespass under the claim of his codefendant. Plaintiff and L. P. Bonnett both claimed the land in dispute under paper title and by adverse possession. The jury found for plaintiff.

The parties own adjacent tracts, and the issue was: Which of two marked lines on the ground is the true boundary between them? The existence of the two lines was explained by Mr. Norris one of the court surveyors, in this way: In 1805 the state granted to James Hughes a tract of 963 acres. The eastern boundary of this grant was a north and south line, which was marked on the ground at the date of the survey. In 1836 the state granted to Jonathan Foutz a tract of 1,877 acres, part of which was east of and adjacent to the tract previously granted to Hughes, which, in the meantime, had come to be known as the "lands of Staley," and these lands were put down on the Foutz plat as the western boundary of the grant to Foutz, along a north and south line.

Mr. Norris thinks, and his opinion appears to be in accord with the evidence, that in locating the Foutz grant the surveyor did not find and follow the line of the older grant to Hughes, as he should have done (Atkinson v. Anderson, 3 McCord, 223), but began at a corner or station on that line and followed the course indicated by his compass, without making proper allowance for the variation of the magnetic needle, in consequence of which he ran and marked a new line, which gradually diverged to the west from the Hughes line, and caused the Foutz grant to overlap the Hughes grant.

The land in dispute lies between these two lines. Plaintiff's tract is a part of the Staley lands, which were part of the tract granted to Hughes, and plaintiff claims to the line of that grant. Defendant's tract is a part of the Foutz grant, and he claims to the line of that grant. It follows as matter of law that, as the Hughes grant is the older, plaintiff's title must prevail (Alston v. Collins, 2 Speer, 450), unless defendant, or his predecessors, acquired title to the land in dispute by adverse possession, for there is no evidence or suggestion that he or they acquired it in any other way.

Previous to plaintiff's acquisition of title to the tract owned by him, there had been no clearing of the land between the two lines, or up to either of them, except at the northern end, where Vianna Staley had cleared and cultivated the land up to the Hughes line for a time beyond the memory of the oldest witnesses. There was testimony that one of the corners of the Foutz grant was found in her field; but it does not appear whether it was put there before or after she cleared the land.

Plaintiff took possession of his tract about 1900. He began to clear at the southeast corner of the tract, and cleared up to the Foutz line for about half the distance across the tract, until he came to a public road that runs through the tract, and north of that road he cleared up to the line of the Hughes grant, so as to make his clearing conform to that of Vianna Staley, and he has cultivated the land up to that line without interruption from the date of his clearing it, which was about 1902, until the present time. About 1912 a surveyor was employed to subdivide, for the purpose of partition, a tract known as the Posey tract, which was part of the Foutz grant, and in following the line of that grant it was discovered that plaintiff had cleared and was cultivating the land east of the Foutz line, as above indicated. Thereupon this dispute arose.

Defendant tried to get plaintiff to agree to the Foutz line and to pay rent for so much of the land in dispute as he had been cultivating, but he refused to do so, claiming that the land was his. In 1913, and also in 1914, in settling with plaintiff for some ginning and sawing for which they owed him, defendants deducted $1.50 or $2.50 from what they owed him, as rent for the land. Both admitted, however, that he never agreed to pay rent for the land, and that in both instances the deductions were made without his consent. After he had steadfastly refused to pay rent, one of the defendants plowed up some oats that he had planted on the land, whereupon plaintiff brought this action for damages for the trespass.

The foregoing testimony with reference to the payment of rent is stated because, based upon it, defendants preferred a request to charge to the effect that a tenant cannot dispute the title of his landlord,...