Connor v. Johnson

• Citation: 37 S.E. 240,59 S.C. 115
• Court: South Carolina Supreme Court
• Decision Date: 07 February 1900
• Parties: CONNOR. v. JOHNSON.

59 S.C. 115

37 S.E. 240

CONNOR.

v.JOHNSON.

Supreme Court of South Carolina.

Nor. 27, 1900.

TRESPASS — BOUNDARIES— LOCATION — ADJACENT BOUNDARIES—COURSES AND DISTANCES—EVIDENCE—ADMISSIBILITY — AGENCY — APPOINTMENT BY PAROL — PROOF — EXCEPTION—OBJECTIONS RAISED — INSTRUCTION-PROVINCE OF JURY.

1. Where a boundary was located in defendant's deed by reference to a plat, an instruction that the jury, in locating defendant's laud, were bound to go to the line called for in such plat, unless the lines made by the surveyor required a different location, was proper, since artificial marks take precedence over adjacent boundaries.

2. Where plaintiff's deed called for J.'s land as its northern boundary, and also gave courses and distances, his color of title extended no further than J.'s line.

3. Where defendant's deed located the boundaries by reference to a plat, the admission of evidence, in an action against defendant for trespass, of trespasses north of the north line, as designated on defendant's plat, was not prejudicial to defendant, since, if the line were correct, the evidence was admissible, and, if it were not correct, it was harmless, as defend ant could not be liable to plaintiff for trespass on land not proven to belong to plaintiff.

4. On an issue as to the boundary between plaintiff and defendant, evidence as to a settlement of the boundary as between plaintiff and F. was not admissible, in the absence of proof of any privity between F. and defendant.

5. Where W. testified that he was appointed by parol to sell B.'s land, and determine the boundary, evidence of W. that he pointed out a certain boundary was not objectionable on the fround that W.'s agency was not proven, since is own testimony was competent to establish that fact.

6. Where defendant entered into possession of land under a deed from B., who held a contract to purchase it, but subsequently obtained a deed from B.'s grantor, under which defendant alleged title in an action against him for trespass, evidence of defendant that a certain boundary was established between himself and B. was properly excluded as immaterial.

7. Where defendant introduced evidence that there were old marks on the boundary line as claimed by plaintiff, the admission of evidence by plaintiff to show the existence of such marks was not prejudicial to defendant.

8. Where defendant did not ask the privilege of introducing evidence to rebut the testimony of plaintiff's witnesses as to the location of a boundary, he cannot raise the objection on appeal that the trial court refused to admit such testimony under an exception to the refusal of the trial court to admit evidence as to another boundary.

9. Where plaintiff's deed called for J.'s line as the boundary, and also contained courses and distances, an instruction that, though the courses and distances laid down in plaintiff's deed might carry her land beyond J.'s line, the jury, in locating the boundary, must stop at J.'s line, was properly refused, as invading the province of the jury.

Appeal from common pleas circuit court of Spartanburg county; R. C. Watts, Judge.

Action by Harriet L. Connor against Crede F. Johnson. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The following is the charge of the trial judge, and the exceptions on which the appeal is based:

The trial court charged the jury as follows:

"This is a claim brought by the plaintiff here to recover damages against the defendant for interfering with the possession of land. The plaintiff alleges that she was in lawful possession of the land described in the complaint, and entitled to enjoy and use and occupy it; that her possession has been disturbed by the defendant's maliciously, willfully, and unlawfully entering upon the land described in the complaint, and dispossessing and interfering with her possession. She alleges that she was lawfully in possession under a paper title, and that her possession has been disturbed by the defendant; that he has made repeated trespasses upon the land, which was in her possession; and that the entry was malicious, willful, and unlawful; and she therefore asks that she be restored to possession, and for two hundred and fifty dollars damage against the defendant. The defendant by his answer denies that the plaintiff is in possession under any paper title of this land described in the complaint; denies that he has committed repeated trespasses upon it; and further alleges that he holds the fee-simple title to the land, that he is the owner of it in fee. He therefore denies that she is entitled to recover against him the land or for any damages

"Well, now, you have heard the testimony in the case, and that is for you entirely. I have nothing to do with the facts of this case at all. The evidence in the ease is for yon to judge entirely. It is my duty to give you the law, and you take the law from me, and you find the facts, applying them to the law as I give it to you, and arrive at your verdict in that way. In other words, it is my duty to give you the law, and it is your duty to take the law from me. As to the facts of the case, that is your province exclusively and entirely. You are to judge them. 1 have nothing to do with them.

"Now, whenever a party comes into court in an action of this sort, and alleges a certain set of facts, it is incumbent upon the plaintiff to satisfy the jury, by the preponderance or by the weight of the evidence, of the truth of the allegations of her complaint. The plaintiff here, having alleged that she was in lawful possession of this land under a paper title, and entitled to the use and enjoyment and occupancy of such land, it is incumbent upon her to show, by the preponderance of the testimony, the truth of those allegations, and also that the defendant has unlawfully, willfully, and maliciously committed trespass upon the lands in her possession, and that she has been damaged. If you conclude that she is entitled to recover possession of the land, and that it is in her lawful possession, and the defendant trespassed upon it, then she would be entitled to such damages, under the testimony, as you see proper to give, either actual or punitive damages. If it was entered in a high-handed, malicious, outrageous way, and was a willful invasion of her rights, then the jury could award, in addition to such actual damages as have been sustained, such damages, in the way of punishment, or 'smart money, ' as it is called, as they see proper. None of the testimony satisfies you in this case that the plaintiff is in under a paper title or deed or plat or anything of that sort, in possession of this land, and the defendant has no title to the land, or If he holds a title that does not cover this land, but that the plaintiff's title, whether it be a deed or a plat or any paper in writing, covers this land, and the defendant had no title to it, then the plaintiff is entitled to recover if the defendant trespassed upon it. If, however, the plaintiff has a title, and the defendant has a title, both have titles to the same land, then the party having the oldest title would be entitled to it; that is, the party whose title is the older; that is, if both titles cover this land in dispute. If the plaintiff's title covers it, and the defendant's title covers the land in dispute, both titles cover it, then the oldest title would prevail, and whichever one had the oldest title would be entitled to the possession of the land. But if neither one of them have it, if the titles of neither party cover this land, then your verdictshould be for the defendant If you don't think, under the testimony in the case, that the title of the plaintiff or the title of the defendant, either one, covers this land, but it belongs to somebody else, and is in the possession of somebody else, then your verdict should be for the defendant, because, before the plaintiff can recover, she must satisfy you, by the testimony in the case, that she was in possession of this land, and entitled to be in possession of it by paper title or color of title when the trespass was made by the defendant, if any trespass was made by him at all. If the defendant's title covers the land, if you believe under the testimony that the defendant's title covers the land, and the plaintiff's title does not, then, of course, your verdict would be for the defendant. Now, if you believe that the defendant, Johnson, purchased this land from Mr. Caleb Brown, and he took a deed and a plat for it, then I charge you, as a matter of law, that he is not entitled to anything more than that deed and plat covered. He would be entitled to what the deed and plat covered. If you think he holds a deed and plat from Mr. Caleb Brown, then whatever that deed and plat covers he is entitled to; but, If it does not cover this land, he is not entitled to this land. If the defendant's deed does cover it, and the plaintiff's title covers it also, then, as I said a while ago, whichever one has the oldest title is entitled to the possession of this land; but if the plaintiff's title covers this land, and she was in possession of it, and the defendant's title does not cover it, —if he has trespassed upon it and put her out of possession, or committed any other trespass upon the land, —then your verdict should be for the plaintiff for such damages, under the testimony in the case, as you see proper to give her.

"Now, gentlemen, I think I have made myself plain about that; or at least, I hope so. If the plaintiff's title covers this land, and the defendant's title does not, and the defendant has committed trespasses upon the land, then the plaintiff would be entitled to recover possession and such damages as you see proper to give. If the titles of both parties cover this land, then the oldest one would prevail. If the title of the defendant covers it, and the title of the plaintiff does not, then your verdict would be for the defendant. If the title of neither includes...