Forshur Timber Co. v. Santee River Cypress Lumber Co.

• Decision Date: 07 November 1934
• Docket Number: 13937.
• Citation: 178 S.E. 329,203 S.C. 225
• Parties: FORSHUR TIMBER CO. v. SANTEE RIVER CYPRESS LUMBER CO. [a1]
• Court: South Carolina Supreme Court

178 S.E. 329

203 S.C. 225

FORSHUR TIMBER CO. v. SANTEE RIVER CYPRESS LUMBER CO. ^[a1]

No. 13937.

Supreme Court of South Carolina

November 7, 1934

Appeal from Common Pleas Circuit Court of Berkeley County; Wm. H Grimball, T. S. Sease, and C. C. Featherstone, Judges.

Action by the Forshur Timber Company against the Santee River Cypress Lumber Company, wherein defendant filed a demurrer. From a decree for plaintiff, defendant appeals .

Affirmed.

The report of F. K. Myers, Master, and the decree of William H Grimball, Judge, ordered to be reported, follow:

Master's Report.

This cause comes before me, one of the masters for Charleston county, under the terms of a consent order submitting all issues for my conclusions thereon.

The evidence adduced at the numerous references held is herewith submitted in minutes, pages 1 to 336, inclusive, and a great number of plats, deeds, and other instruments in writing.

The action is brought, as set out in the complaint, under the provisions of sections 826 to 832, inclusive, of the Code of Civil Procedure, 1922, vol. 1, providing a special remedy for the determination of adverse claims of title to real estate.

Section 826 reads: "Any person in possession of real property by himself or his tenant, or any person having or claiming title to vacant or unoccupied real property, may bring an action against any person who claims, or who may or could claim, an estate or interest therein, or a lien thereon adverse to him for the purpose of determining such adverse claim and the rights of the parties, respectively."

The complaint describes the disputed land, in Berkeley county, as timber lands, and therefore unoccupied, which the answer admits.

I have had many years' experience in the courts of this circuit and have never seen or heard of a cause prepared and presented with such meticulous care and thoroughness as is evidenced here by counsel for both sides. I am advised by these eminent attorneys that the provisions of title 15, vol. 1, Code of 1922, embracing the sections invoked, have not been reviewed or construed by our Supreme Court, and am sure that the application is not to be found in our Reports .

The text-books, however, and leading case law reports, show that the special remedy provided is not novel nor unique, but is a recognition that paramount rights may exist, short of perfect title or of holdings sufficient to establish presumption of grant, which may be established against all persons whomsoever perhaps, and certainly against those specifically contesting such rights. And not only is it the clearly stated purpose of this and similar enactments to provide a remedy, presupposing the plaintiff's paramount rights, but here is a method provided by which persons claiming title adversely may maintain an action wherein and whereby the court may hear and "determine such adverse claims and the rights of the parties, respectively."

Without this statutory provision, one claiming title to real estate would be held, under a proceeding quare clausum fregit, to restrain trespass by establishing and recovering from an adverse claimant on the strength and perfection of one's own title. Experience in that class of cases, on the law side of the court, must have established the necessity for statutory recognition of rights which could not, for any one of various reasons, be so established, but which should nevertheless be upheld by judicial determination against marauders and mischief-makers, as well as against those under a misapprehension as to the extent of their claims or actual holdings. Written instruments are for the court's interpretation. Boundaries and area intended to be conveyed are capable, within the limits of accuracy and ability, of establishment by the science of survey. A corner thought by the property owner to be here may conceivably be so established there. Old marks may be confused with new marks, or others more recent, which may have been established by mistake, or with wrongful intent. It is even contended here that a coon hollow in a tree may be mistaken for an ancient chop of a surveyor. The use of level and rod and transit and chain may be in the nature of an exact science, but one human instrument in the demonstration of this exact science may differ from another as " one star differeth from another in glory." They, the surveyors, are controlled by definite, well-established, and recognized rules, but how much one may differ from another in their application. Mr. A is sent out into the field, employed to find the definite marks, distances, and courses which will establish the claim of his employer. He finds them. So with Mr. B, who is sent out by another employer; he finds the marks, distances, and courses which his employer sends him out to find. And there is no reflection upon either Mr. A or Mr. B. The marks are there, the distances are there, the course established by human direction of the instrument. The setting up of claims which are adverse are thus inevitable. Time was when the holder of any contested title to real estate must establish a flawless claim, or hold off the adverse claimant with force, until he (the adverse claimant) must assume plaintiff's role and establish perfect title, or be foreclosed of his pretensions. So might either claimant prevail, as between the parties, with a more shadowy showing of vested interest, or perhaps as a mere trespasser.

Not so, says the lawmaking Assembly; and by a provision which I construe as intended to maintain rights established under color or against inferior rights established under color, in favor of either plaintiff or defendant in an action brought thereunder, for determination of "the rights of the parties, respectively," as the case may be. Without an action of this nature, and under its liberal extended method of bringing to a head and disposing of such adverse claim, there might conceivably be in neither claimant the strength and perfection necessary to establish perfect title, and no end to contention. And, if the law provides no method of ending controversy, then, lawlessness. Too often, legal or equitable resort failing, claimants resort to methods which bring into play the criminal statutes, and there no permanent remedy is found.

It is conceivable that, title 15, vol. 1, not being so intended, one with knowledge of a flaw in or cloud upon another's title to real estate might enter thereupon and claim adversely under spurious color of title, in which event an action, or two actions as the law allows, might result, because of deficiencies in, and not of utter failure to show, claim of title, in promoting the spurious or perhaps utterly unfounded claim.

I have set out my conception of the provisions under which this action is brought because of the legal position assumed by the defendant, and by way of approach to the consideration and discussion of the respective claims.

The defendant contends that plaintiff must recover on the strength of its title and not on any weakness it may seek to find in the evidence offered to support defendant's claim to both title and possession of the lands in dispute, which is, of course, in conflict with my expressed view of the nature and scope of this proceeding under the provisions of title 15, vol. 1. It is not that plaintiff may recover should defendant's title be insufficient to support an action and recovery at law in trespass to try title or trespass quare clausum fregit, but that, in the absence of other claimants (and there are none here), either by this liberal statutory method may be the moving party for the judicial determination of conflicting claims. In other words, this remedy relieves the plaintiff of the burden of showing perfect title and possession as required in the action to which it was formerly limited.

If, however, the court should not adopt my view of the construction of the statutes above referred to, but should hold that the plaintiff must recover or prevail on the strength of its own title, and not on the weakness of its adversary, I find from the evidence that this burden has been sustained by the plaintiff and that it has made out perfect title to the property in question, as will hereafter more fully appear.

Defendant moved as for a directed verdict upon the close of plaintiff's case in chief-a proper motion in a jury case. For a proper hearing here, the motion must have been refused. I take it that it is not necessary in this proceeding to determine whether reference to a Master is mandatory, or that consent to the order of reference was necessary for any other purpose than to give jurisdiction to a master without the county. At all events, the master to whom referred must hear, and must determine in so far as he may, the conflicting claims.

Jury trials are a short-cut to results. An experienced master often wishes he might dispose of a controversy by verdict. Confronted in this case by a voluminous record and some 150 pages of briefs and objections, it would be a great relief to find for plaintiff or for defendant. But his proper function is to endeavor at least to narrow the issues and present them properly for review, in such manner that the burden of the trial judge may be limited to a correction of his errors, or approval of his findings, having for consideration on such review the master's reasons therefor.

As to admissibility of testimony in hearings before a master, and the many objections urged under stipulation at the close of this case, no ruling is necessary here, but, as in equity practice and procedure, the findings submitted are open to exception and review by the trial judge on correctness of conclusions, to be concurred in only if supported by admissible evidence.

The lands in dispute lie...