Getsinger v. Midlands Orthopaedic Profit Sharing Plan

• Citation: 489 S.E.2d 223,327 S.C. 424
• Decision Date: 04 June 1997
• Docket Number: No. 2687,2687
• Parties: W.J. GETSINGER, Jr. and Hugh C. Horry, Appellants, v. MIDLANDS ORTHOPAEDIC PROFIT SHARING PLAN, Ercell P. McGowan, Robert D. Peeples, Southern Pine Plantations, Inc., P.L. Tuten, Julia Ann Tuten, Julia Ann Pope, Jasper County, and all other persons unknown or having or claiming any right, title, estate, or interest in or lien upon the real property described in the Complaint herein, being designated collectively as Jane Doe and Richard Roe, including all heirs, distributees, or devisees of any unknown persons in the Armed Forces of the United States of America, any minors, and including persons non compos mentis and all other persons under any disability of any kind or nature who might have claim to or any right, title, estate, or interest in or lien upon the real property described in the Complaint, Respondents. . Heard
• Court: Court of Appeals of South Carolina

Page 223

489 S.E.2d 223

327 S.C. 424

W.J. GETSINGER, Jr. and Hugh C. Horry, Appellants, v. MIDLANDS ORTHOPAEDIC PROFIT SHARING PLAN, Ercell P. McGowan, Robert D. Peeples, Southern Pine Plantations, Inc., P.L.

Tuten, Julia Ann Tuten, Julia Ann Pope, Jasper County, and

all other persons unknown or having or claiming any right,

title, estate, or interest in or lien upon the real property

described in the Complaint herein, being designated

collectively as Jane Doe and Richard Roe, including all

heirs, distributees, or devisees of any unknown persons in

the Armed Forces of the United States of America, any

minors, and including persons non compos mentis and all

other persons under any disability of any kind or nature who

might have claim to or any right, title, estate, or interest

in or lien upon the real property described in the

Complaint, Respondents.

No. 2687.

Court of Appeals of South Carolina.

Heard June 4, 1997.

Decided June 16, 1997.

Rehearing Denied Aug. 28, 1997.

Certiorari Denied Mar. 6, 1998.

[327 S.C. 427] R. Thayer Rivers, Jr., Ridgeland, for Appellants.

Darrell Thomas Johnson, Jr., Hardeeville, for Respondents.

ANDERSON, Judge:

W.J. Getsinger, Jr. and Hugh C. Horry (Appellants) appeal the circuit court's order granting a directed verdict in favor of Respondent Midlands Orthopaedic Profit Sharing Plan (Midlands). ¹ The judge found as a matter of law that Midlands and its predecessors in title had adversely possessed a parcel of land claimed by Appellants. We reverse and remand for a new trial.

FACTS/PROCEDURAL BACKGROUND

On June 24, 1993, Appellants filed this action seeking to have a legal determination of the ownership and true boundaries of a parcel of land. Respondent Midlands filed an answer on July 29, 1993, in which it claimed title by adverse possession. At the close of all the evidence, the circuit court judge directed a verdict in favor of Midlands. Appellants filed a Rule 59(e), SCRCP motion for reconsideration, which was denied.

ISSUE

Did the circuit court err in directing a verdict for Respondent Midlands on its claim of adverse possession?

STANDARD OF REVIEW

The determination of title to real estate is legal in nature. Wigfall v. Fobbs, 295 S.C. 59, 367 S.E.2d 156 (1988); Clark v. Hargrave, 323 S.C. 84, 473 S.E.2d 474 (Ct.App.1996). Likewise, an adverse possession claim is an action at law. Miller v. Leaird, 307 S.C. 56, 413 S.E.2d 841 (1992). Ordinarily, the question of adverse possession is one of fact for the jury and only becomes one of law for the court when the evidence is undisputed and susceptible of but one inference. Mullis v. Winchester, 237 S.C. 487, 118 S.E.2d 61 (1961); Lynch v. Lynch, 236 S.C. 612, 115 S.E.2d 301 (1960).

It is well established that when considering a motion for a directed verdict, the In ruling on a directed verdict motion, the trial court is concerned only with the existence or non-existence of evidence, and the court does not have the authority to decide credibility issues or to resolve conflicts in the testimony. Garrett v. Locke, 309 S.C. 94, 419 S.E.2d 842 (Ct.App.1992) (judge erred in granting directed verdict where more than one inference arose from the evidence; conflicts in the testimony were for the jury to resolve as the finders of fact).

trial court must view the evidence and all reasonable inferences in the light most favorable to the non-moving party. If the evidence as a whole is susceptible of more than one reasonable inference, the case should be submitted to the jury. Gamble v. International Paper Realty Corp., 323 S.C. 367, 474 S.E.2d 438 (1996); Rice v. Multimedia, Inc., 318 S.C. 95, 456 S.E.2d 381 (1995).

In reviewing the grant of a directed verdict, the appellate court should not ignore facts unfavorable to the opposing party. Rather, it must determine whether a verdict for the opposing party would be reasonably possible under the facts as liberally construed in his favor. Bultman v. Barber, 277 S.C. 5, 281 S.E.2d 791 (1981).

BURDEN OF PROOF

"The burden of proof of adverse possession is on the one relying thereon." Weston v. Morgan, 162 S.C. 177, 192, 160 S.E. 436, 441 (1931). "A [claimant's] title by adverse possession requires proof of actual, open, notorious, hostile, continuous, and exclusive possession by the claimant, or by one or more persons through whom he claimed, for the [required] period.... [T]he burden of proof [of adverse possession] is upon the party relying thereon." Miller, 307 S.C. at 61, 413 S.E.2d at 844. See also Forshur Timber Co. v. Santee River Cypress Lumber Co., 203 S.C. 225, 178 S.E. 329 (1934) (party claiming adverse possession must prove open, notorious, exclusive, hostile, and continuous possession for the required period), cert. denied, 295 U.S. 743, 55 S.Ct. 655, 79 L.Ed. 1689 (1935); Lyles v. Fellers, 138 S.C. 31, 42, 136 S.E. 13, 17 (1926) ("The burden of proof of adverse possession is on the one relying thereon."); Butler v. Lindsey, 293 S.C. 466, 470, 361 S.E.2d 621, 623 (Ct.App.1987) ("The burden of proof of adverse possession is on the one relying thereon.").

The party asserting adverse possession must establish the claim by clear and convincing evidence. Davis v. Monteith, 289 S.C. 176, 345 S.E.2d 724 (1986); Thomas v. Dempsey, 53 S.C. 216, 31 S.E. 231 (1898). See also Zinnerman v. Williams, 211 S.C. 382, 386, 45 S.E.2d 597, 599 (1947) ("The Thomas-Dempsey case establishes the principle that a party, in order to acquire title to real estate by adverse possession, must show such possession by clear and convincing evidence."); Lusk v. Callaham, 287 S.C. 459, 461, 339 S.E.2d 156, 157 (Ct.App.1986) (The party making the claim "ha[s] the burden of proving adverse possession by clear and convincing evidence.").

When it is asserted by the defendant, adverse possession is an affirmative defense. Miller, 307 S.C. 56, 413 S.E.2d 841; Weston, 162 S.C. 177, 160 S.E. 436; Suber v. Chandler, 36 S.C. 344, 15 S.E. 426 (1892).

LAW/ANALYSIS

In South Carolina, adverse possession may be established under a 10-year statute of limitation. See S.C.Code § 15-3-340 (Supp.1996); S.C. Code § 15-67-210 (1976); S.C.Code § 15-67-220 (1976). The person claiming adverse possession under these statutes must have personally held the property for 10 years, and tacking ² is allowed only between an ancestor and an heir. Terwilliger v. White, 222 S.C. 176, 72 S.E.2d 169 (1952); Terwilliger v. Marion, 222 S.C. 185, 72 S.E.2d 165 (1952). See also S.C. Juris. Adverse Possession § 19(a) (1991) (during the 10-year period, tacking is not allowed between successive occupants).

In addition to the 10-year statute of limitation for adverse possession, South Carolina common law recognizes the 20-year To constitute adverse possession, which results in obtaining title to the disputed property, the possession must be continuous, hostile, open, actual, notorious, and exclusive for the requisite period. Mullis, 237 S.C. 487, 118 S.E.2d 61. The claimant's possession must be hostile to not only the true owner, but also to the rest of the world so as to indicate his exclusive ownership of the property. Id. These elements must also be present in the presumption of a grant. See 3 Am.Jur.2d Adverse Possession § 5 (1986) (title by adverse possession is often said to rest on the presumption of a lost grant; mere possession does not afford the presumption of a grant--the possession must be actual, open, adverse, exclusive, and uninterrupted, as well as inconsistent with the existence of title in another, and under a claim or right or title).

presumption of a grant. Terwilliger v. Daniels, 222 S.C. 191, 72 S.E.2d 167 (1952). See S.C. Juris. Adverse Possession § 4 n. 4 (1991) (there are several methods for acquiring property through the passage of time, and the acquisition of land under the common law period is more accurately labeled the 20-year presumption of a grant). Under the presumption of a grant, the time of possession may be tacked not only by ancestors and heirs, but also between parties in privity in order to establish the 20-year period. White, 222 S.C. 176, 72 S.E.2d 169.

Occasional and temporary use or occupation does not constitute adverse possession. Weston, 162 S.C. 177, 160 S.E. 436. The nature and location of the land, and the appropriate uses for which it is suited should be considered in determining whether adverse possession has been established. Mullis, 237 S.C. 487, 118 S.E.2d 61. Acts of ownership with regard to open, wild, unfenced lands not capable of cultivation are only required to be exercised in a way that is consistent with the use to which such lands may be put, even without actual residency or occupancy. Id.

This case involves a parcel of land in Jasper County. The pertinent history of the disputed property is as follows. In 1933, Big Salkehatchie Cypress Company paid taxes on 237 acres of land located in Jasper County. In 1934, land owned by Big Salkehatchie was seized by the sheriff for non-payment of taxes and deeded to the Forfeited Land Commission. ³ The Commission sold the property to John Pat Wise and Henry Garbade the same year. Upon the death of Wise and Garbade, the land was held in a trust managed by C & S Bank for the benefit of the families.

Appellant Horry testified he first heard in 1984 that C & S Bank, as trustee for the Wise/Garbade Estate, was going to sell some of the land. Horry discussed the purchase of Estate property with Appellant Getsinger, who is the grandson of decedent John Pat Wise and also Horry's accountant. According to Horry, the tax map at that time showed the Estate was paying taxes on about 208 acres. Horry stated that, when he purchased several parcels in 1985, it was his understanding that he was getting 71.34 acres "plus all right, title[,] and interest to any [lands] of the Big Salkehatchie Cypress Company." Horry maintained he later discovered there were 75 more acres of land that no one else was claiming. Horry acknowledged there has never been a...