Douglass v. Perry, 18326
| Decision Date | 31 March 1965 |
| Docket Number | No. 18326,18326 |
| Citation | 245 S.C. 486,141 S.E.2d 348 |
| Court | South Carolina Supreme Court |
| Parties | Jerome DOUGLASS, Appellant, v. Essie B. PERRY, William L. Perry, Jerry Perry and Percival Perry, Respondents. |
deLoach & deLoach, Camden, for appellant.
H. F. Bell, Chesterfield, for respondents.
Jerome Douglass, the appellant herein, the plaintiff below, and Essie B. Perry, William L. Perry, Jerry Perry and Percival Perry, the respondents herein, and the defendants below, are adjoining landowners. The pleadings placed in issue title to approximately thirty acres of land lying north of Horse Pen Branch and encompassed on a plat made by Will Clark, surveyor, on January 12, 1943. The defendants claim Horse Pen Branch as the boundary line between their premises and those of the plaintiff. The plaintiff claims title to the area north or Horse Pen Branch, as shown on the aforesaid plat.
This case was referred to the Master for Chesterfield County for the sole purpose of taking the testimony. Thereafter, the case was heard by the Honorable C. Bruce Littlejohn, Presiding Judge, upon the record certified to him by the Master. After having considered such record and having heard full argument by counsel for all parties, the trial Judge, on May 4, 1964, issued his order in which he found that the defendants have title to the area in dispute which lies north of Horse Pen Branch. The plaintiff has appealed to this Court from such order.
The appellant asserts that his exceptions raise the following question:
'Does Appellant own the premises included within the area of the plat of his property (Plaintiff's Exhibit No. 8) or is Horse Pen Branch the boundary line between premises of Appellant and premises of Respondents?'
This action is one of trespass to try title and the appellant must recover, if at all, on the strength of his own title; and the burden was upon him to prove paramount title to the land. This being an action at law, the conclusions of fact of the lower Court are binding upon this Court unless they are without evidentiary support. Lynch v. Lynch, 236 S.C. 612, 115 S.E.2d 301; March Plywood Corporation v. Graham, 240 S.C. 486, 126 S.E.2d 510. Likewise, the issue of adverse possession being a legal one, our factual review of it is limited to a determination of whether there is any evidence reasonably sustaining the findings of the lower Court. Mullis v. Winchester, 237 S.C. 487, 118 S.E.2d 61.
The issue before this Court, as made by the appellant's exceptions, is whether there was any testimony to sustain the findings of fact of the Circuit Judge. A careful review of the entire record convinces us that the clear weight of the evidence fully supports the findings of fact made by the Circuit Judge and we are satisfied that his order, which will be reported herewith, correctly disposed of all issues before him.
The exceptions of the appellant are overruled and the judgment below is affirmed.
The order of Judge Littlejohn follows:
This action was commenced by service of Summons and Complaint on the defendants in May, 1961. The Complaint alleges that plaintiff owns a one hundred forty-two (142) acre tract of land situate in Chesterfield County, South Carolina, and that the defendants have trespassed thereon, and have cut and removed certain timber from said premises. Plaintiff further alleges that the said trespasses were on the area of said premises lying north of Horse Pen Branch; that the defendants erroneously claim said area, which claim constitutes a could on plaintiff's title. The plaintiff prays that the defendants be enjoined from claiming any interest in the said premises and for an accounting by the defendants for timber cut from said premises.
The defendants in due time answered the Complaint and denied that they had trespassed on plaintiff's premises and allege that they are owners and in possession of that area north of Horse Pen Branch, and that Horse Pen Branch is the boundary line between the property of plaintiff and defendants. The defendants further allege that they and their predecessors in title have been in the exclusive, continuous, hostile and adverse possession of the area in dispute for a period of ten (10) years, and a period of twenty (20) years, prior to the commencement of this action, and further allege that neither the plaintiff nor his predecessors in title have been in possession of that area in dispute within ten (10), twenty (20), or forty (40) years.
The case was thereafter referred to the Master for Chesterfield County for the specific purpose of taking testimony. The testimony presented before the Master was transcribed and submitted to me, and thereafter I heard full argument by counsel for all parties.
Since this is an action of trespass to try title, the plaintiff in order to recover must prove title in himself cannot rely on the weakness of his adversary's title. Warren v. Wilson, 89 S.C. 420, 71 S.E. 818, 992.
The plaintiff claims title under a deed from Archie Mills dated August 11, 1943, and the description in this deed is as follows:
'All that certain piece, parcel or tract of land, situate, lying and being in Cole Hill Township, Chesterfield County, South Carolina, containing one hundred forty-two (142) acres, more or less and bounded as follows: North by lands of Angus Douglass; East by lands of Thomas Watson; South by lands of A. E. Smith and Walter Oliver; and on the West by the right of way of Route 85 project 823, and by lands of Walter Oliver, known as the Black Creek Tract, said highway being the dividing line between the tract herein conveyed from a 24 acre tract heretofore conveyed to John Clanton a corner on said highway and running northeastward with the 24 acre tract conveyed to John Clanton down to Horse Pen Branch, thence up the said Horse Pen Branch to a direct...
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