Cooper River Timber Co. v. Cone
| Citation | 187 S.E. 341,181 S.C. 288 |
| Decision Date | 30 July 1936 |
| Docket Number | 14343. |
| Parties | COOPER RIVER TIMBER CO. v. CONE. |
| Court | United States State Supreme Court of South Carolina |
Appeal from Common Pleas, Circuit Court of Dorchester County; M. M Mann, Judge.
Action by the Cooper River Timber Company, a corporation created by and existing under, the laws of the state of Delaware, and duly domesticated under the laws of the state of South Carolina, against Andrew N. Cone. From an order denying plaintiff's motion for reference and directing that the case be docketed, the plaintiff appeals.
Order affirmed.
Legare Walker, of Summerville, and J. D. Parler, of St. George, for appellant.
John I Cosgrove, of Charleston, for respondent.
The complaint in this action alleges among other things, that the plaintiff company and the defendant, Cone, are the owners of adjoining tracts of land in Dorchester county; that the defendant's tract contains 80 acres, which he purchased subject to a lease thereon held by the company, and under the terms of which it had until March 27, 1930, to remove the timber therefrom; that about September, 1926, the defendant employed one J. P. Gaillard, a civil engineer, to make a survey and a map of his 80-acre tract; that Gaillard made the survey, directed and assisted by Cone in running the lines and locating the corners, and in particular the line between the two properties; that shortly thereafter the map made by Gaillard was submitted by him, as the agent of the defendant to one Cuthbert, agent of the plaintiff, and the latter accepted it as correct, particularly agreeing to the line designated thereon as the boundary between the lands of the plaintiff and those of the defendant; that after March 27, 1930, Cone secured the services of a surveyor by the name of Postell and had him to resurvey his 80-acre tract, and that in so doing Postell established a different boundary line between the two tracts, which the defendant now claims to be the true and correct line of division; that by this new survey certain valuable lands of the plaintiff were included within the lines of the defendant's 80-acre tract, and there was excluded certain acreage in the northern corner of that tract which is entirely in a swamp and of little value; that the defendant "has repudiated the boundary line as established for him by the said J. P. Gaillard, and accepted by this plaintiff as the true and correct boundary line, and has attempted, and is still attempting, to claim to the line as resurveyed by the said J. A. Postell; and that this plaintiff has protested against, and has refused to accept, the said division or boundary line as changed by the said J. A. Postell as aforesaid"; that shortly after the resurvey by Postell, Cone removed certain markers set up by the company on the Gaillard line and has appropriated to his use plaintiff's fences built thereon and has carried away and concealed the corner posts and has threatened to remove and to appropriate to his own use any other fences constructed on the said line; that these acts and doings of the defendant were intentional and fraudulent and were for the purpose of defrauding and cheating the company out of its property; that the plaintiff has not an adequate remedy at law, and for this reason, as well as to prevent a multiplicity of suits and actions, seeks the aid of a court of equity to the end that the Gaillard line "be adjudged and decreed to be the permanent, true and correct division or boundary line" between the said two tracts of land, and to the further end that Cone be perpetually enjoined from further and other trespasses and entries upon the said property of the plaintiff. Judgment was asked against the defendant accordingly.
Upon application of the plaintiff, his honor, Judge Oxner, issued a restraining order, pendente lite; and all the papers, including the summons and complaint, were served on the defendant on October 31, 1933.
The answer to the complaint admits that the company and Cone are adjoining landowners in Dorchester county, and alleges that after the purchase by the defendant of his 80-acre tract in 1925, the plaintiff, through its agent Cuthbert, approached him with regard to the line between the two tracts, and suggested that a survey be made, each paying one-half of the costs, Cuthbert, however, insisting that he should name the surveyor; that thereafter this agent of the company sent a surveyor by the name of Gaillard to the property for the purpose of running the line, and that the defendant accompanied him upon the land to assist him; that, when Gaillard refused, however, to follow the established marks and monuments, the defendant declined to accompany him further, and, when the plat made by Gaillard was presented to him by Cuthbert, he refused to accept it because it was contrary to the established marks and monuments fixing the boundary between the properties; that thereafter Cone employed one Postell, a surveyor who had established the line between the property of the plaintiff and that of the defendant in 1902, who again ran the boundary line in accordance with the marks and monuments theretofore fixed; that a copy of the original plat representing the Postell survey of 1902, as defendant is informed and believes, was actually in the possession of the plaintiff at the time it attempted to have Gaillard establish the line by his survey, and that the purpose of plaintiff was to mislead the defendant in having a resurvey made by a man employed by it and to defraud him in connection with the fixing of the boundary line; that the defendant "asserts full claim of right, title, ownership and possession to said tract of eighty acres, together with the timber thereon as shown on said Postell plat"; that a court of equity has no jurisdiction of the cause, for the reason that the plaintiff has a plain, adequate, and complete remedy at law; that the cause involves the title to a disputed tract of land lying between the properties of the plaintiff and the defendant, and that the right of action, if any, of plain...
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