Holden v. Cantrell
| Decision Date | 25 February 1915 |
| Docket Number | 9004. |
| Citation | 84 S.E. 826,100 S.C. 265 |
| Parties | HOLDEN ET AL. v. CANTRELL ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Oconee County; J. W. De Vore, Judge.
Action by Alice M. Holden and others, by their guardian ad litem Alice M. Holden, against Levi R. Cantrell and others. From a judgment for plaintiffs, defendants appeal. Reversed.
An assignment of error to the argument of counsel in commenting on absence of pencil sketch held not to be considered in view of the record.
Defendants' requests to charge were as follows:
(1) Where the lines of a tract of land have been run and acquiesced in, and can be found, they constitute the true boundaries, which must not be departed from or made to yield to any less certain and definite matter of description or identity. 5 Cyc. 914.
(2) Lines actually surveyed and marked and capable of identification will, according to well-settled principles of law, control calls for courses and distances in the determination and location of a boundary; likewise the call for quantity or a certain number of acres must yield to marked lines. 5 Cyc. 915.
(3) A statement of the quantity of land supposed to be conveyed and inserted in a deed by way of description must yield to natural or permanent objects called for in the conveyance. 5 Cyc. 920; Wash v. Holmes, 1 Hill, 12; Sumter v Bracey, 2 Bay, 515; Lynn v. Thomson, 17 S.C 129.
(4) Lines actually run and marked on the ground are the best evidence of the true location of the survey. Alexander v Gossett, 29 S.C. 421, 7 S.E. 814.
(5) The settled rule is that monuments, whether natural objects or artificial marks, are allowed to dominate courses and distances. Crampton v. Prince, 83 Ala. 246, 3 So. 519, 3 Am. St. Rep. 718.
(6) Where the owners have a fence where they consider the true line and each claiming only to the true line, wherever that may be, they are not bound by the location of the fence, but must conform to the true line when it is ascertained. Battner v. Baker, 108 Mo. 311, 18 S.W. 911, 32 Am. St. Rep. 606.
(7) If the boundary between contiguous lands is uncertain, the owners of the adjoining tracts may agree upon a certain line as a boundary, and such boundary is binding upon them and their successors in title, especially so when it is followed up by actual occupation. Watrous v. Morrison, 33 Fla. 261, 14 So. 805, 39 Am. St. Rep. 139.
(8) Where parties by mutual agreement and for that express purpose meet and fix a boundary line, and thereafter acquiesce in the line, such line will be considered the true line between them, where there is no fraud or misrepresentation. Jones v. Pashby, 67 Mich. 459, 35 N.W. 152, 11 Am. St. Rep. 589.
(9) A boundary line, whose commencement is given, must be continued in the same direction, if possible, unless the contrary be shown. Richardson v. Moodie, 2 Brev. 442; Martin v. Simpson, Harp. 454.
(10) A preponderance of the evidence is all that is necessary to establish a boundary line, and that may be by either direct or circumstantial evidence.
(11) When adjoining lands are called for in a conveyance, the true boundary of the adjoining tract is the true dividing line between the tract undertaken to be conveyed and the adjoining tract.
J. R. Earle and W. J. Stribling, both of Walhalla, for appellants.
E. L. Herndon and R. T. Jaynes, both of Walhalla, for respondents.
This is the second appeal in this action for damages for trespass. See 88 S.C. 281, 70 S.E. 815. Plaintiff and defendant Levi Cantrell own adjacent lands--parts of the same original tract, which was a square mile, and was divided into three tracts. Plaintiff's land extends entirely across the eastern side of the square. The western side is divided into two tracts (owned by Alexander and Cantrell) by an irregular line extending from a point on the western side of the square to the plaintiff's line. The description in the mesne conveyances are very indefinite; the calls being mostly for artificial marks, most of which have been obliterated by time, and but few courses and distances are given. Hence the difficulty in locating the dividing line between plaintiff and defendant, which is the issue in the case. The land in dispute--18 acres--lies within a triangle made by lines A, B, and D on the plat made by the surveyors. Lines A and B meet at the apex, an admitted corner between plaintiff and Cantrell on the northwest line of the original tract. D. is the base of the triangle, and is a continuation of the eastern end of the line between Cantrell and Alexander. Plaintiff claims to line A and defendant to line B.
In 1880 Gen. Ervin, a surveyor, surveyed and platted the lands now owned by defendant Cantrell, then belonging to the estate of Moses Cantrell. This survey was ex parte, and was made for the purpose of partitioning the lands of the estate of Moses Cantrell. The testimony is conflicting as to whether lines B and D were old marked lines when Ervin made his survey, or were then for the first time established and marked by him. At the first trial a copy or pencil sketch of Ervin's plat was produced by defendant and put in evidence; but it was lost or misplaced, and was not produced at the second trial. Line A extends from the admitted corner S. 32~ E. by a post oak, admittedly on the line between Cantrell and Alexander, and thence S. 30~ E. by a shoal on a branch to the southeast line of the original tract. Line B extends from the admitted corner S. 42~ E. to its intersection with line D at a corner either found or made by Ervin, and marked on the plat "Pine Stump--Ervin."
Plaintiff's testimony tended to show that she and her predecessors in title always claimed and exercised acts of ownership to line A, and that line B was first run and marked by Ervin, and that it was never agreed to or acquiesced in by her or her grantors as the true line. Defendant's testimony tended to show that he and his predecessors in title claimed and exercised acts of ownership to line B, and that lines B and D were evidenced by old marks, when Ervin made his survey, and that plaintiff's predecessors in title, or at least some of them, acquiesced in line B, which is referred to in the testimony as the Ervin line, as the true boundary.
Respondent objects to the consideration of a number of appellant's exceptions on the ground that they are too general. Exceptions 18 and 19, before they were amended by leave of this court, were defective in form, in that they merely referred to the grounds of the motion for a new trial made on circuit and the defendant's requests to charge, which are set out elsewhere in the record, and not in the exceptions. Under rule 5 (35 S.E. v) these exceptions would not have been considered in that form. Fowler v. Harrison, 64 S.C. 313, 42 S.E. 159. This does not mean that the grounds of the motion and the requests should have been set out twice in the record. They should not. The correct method would have been to incorporate them, or so much of them, or so much of the matter therein contained, in the exceptions, as appellant wished to have this court consider, and then state in the record that the exceptions correctly stated the grounds of motion and requests to charge. Stanford v. Cudd, 93 S.C. 367, 76 S.E. 986. But the record should have contained the statement last mentioned, for this court will not consider statements of fact appearing only in the exceptions. The other exceptions are not obnoxious to the objection made. Most of them are commendably concise and specific, and might have been made even more so, without being objectionable. Some of them, as amended, are objectionable, because they incorporate at length the testimony to which objection was made, and are argumentative in form, making them needlessly long and complicated. There are entirely too many exceptions. Many of them raise the same question. In Simpson v. Cox, 95 S.C. 382, 79 S.E. 102, we indicated the manner in which exceptions should be prepared.
The parties agreed upon a survey, each side appointing a surveyor. While the surveyors do not agree in their testimony as to which is the true line, they concur in the plat in evidence, and agree that it correctly represents the lines contended for by plaintiff and defendant respectively, and the physical objects represented thereon. There is shown on this plat at the base of the triangle, but outside of it, an old field, in which is the site of a house, known as the Crow house, also the line of an old fence which inclosed the field and house and a part of the land in dispute, running across the base of the triangle. Plaintiff's testimony tended to show that...
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