Knox v. Bogan, 2515

• Decision Date: 02 April 1996
• Docket Number: No. 2515,2515
• Citation: 322 S.C. 64,472 S.E.2d 43
• Court: South Carolina Court of Appeals
• Parties: Robert G. KNOX and Nellie J. Knox, Appellants, v. Monty Joe BOGAN, Respondent. . Heard

Page 43

472 S.E.2d 43

322 S.C. 64

Robert G. KNOX and Nellie J. Knox, Appellants, v. Monty Joe BOGAN, Respondent.

No. 2515.

Court of Appeals of South Carolina.

Heard April 2, 1996.

Decided May 28, 1996.

John Martin Foster, Rock Hill, for appellants.

Thomas H. White, IV, of Whitney, White & Diamaduros, Union, for respondent.

CURETON, Judge:

The appellants' (Knoxes) complaint alleges they are the owners of property adjacent to land of the respondent (Bogan) and that Bogan has trespassed upon their land in two locations. They ask for actual and punitive damages against Bogan. Bogan answered the complaint with a general denial, and counterclaimed for a court determination of the boundary line between the parties' properties. The two areas in dispute are hereinafter referred to as the northern and southern tracts. The trial court determined the matter before it was "an action in trespass to try title." The court concluded the Knoxes had not proven their right to ownership of either tract and confirmed title in Bogan to both tracts. We affirm in part, reverse in part and remand.

The Knoxes appeal the trial court's order on three different grounds. First, they assert that as to the southern tract, the evidence establishes the parties and/or their predecessors in title acquiesced in the southern boundary line separating their properties for over seventy years. Secondly, they claim to have established ownership of the southern tract by adverse possession. Finally, as to the northern tract, they appear to argue, although not clearly, that the trial court erred in not accepting the survey presented by them as establishing the boundary line between the parties' properties. We affirm the trial court as to the northern tract, but reverse as to the southern tract. The Knoxes have not appealed the trial court's failure to award them damages.

A boundary dispute, if it encompasses an issue of title, is an action at law. Bodiford v. Spanish Oak Farms, Inc., 317 S.C. 539, 455 S.E.2d 194 (Ct.App.1995). Likewise, an action in trespass to try title is an action at law. Cummings v. Varn, 307 S.C. 37, 413 S.E.2d 829 (1992). In actions at law tried without a jury, the findings of fact of the judge will not be disturbed on appeal unless found to be without evidence which reasonably supports them. Townes Assocs. Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

There is some confusion as to what causes of action were before the trial court. Generally speaking, there are several ways a disputed boundary line may be judicially determined. It may be determined incidentally by an action in ejectment where the plaintiff is out of possession of property, or in trespass to try title where the plaintiff is in possession and believes the defendant has trespassed on his property. Additionally, disputed boundary lines may either be directly or indirectly judicially settled in actions to quiet title, actions for injunctions and declaratory judgment actions. Finally, the leading case of Uxbridge Co. v. Poppenheim, 135 S.C. 26, 133 S.E. 461 (1926) recognized an action in equity to settle or fix a boundary. A fair reading of the Knoxes' complaint shows they claim ownership and possession of the tracts in question and trespass thereon by Bogan. Under the case of Beaufort Land & Inv. Co. v. New River Lumber Co., 86 S.C. 358, 68 S.E. 637 (1910), allegations of title and possession are sufficient to recover damages without proof of a "perfect title" in the plaintiff; such allegations support an action in the nature of trespass quare clausum Fregit. Id. at 362, 68 S.E. at 638. On the other hand, the purpose of an action in trespass to try title is to establish the plaintiff's title to the land. Warren v. Wilson, 89 S.C. 420, 71 S.E. 818 (1911). In such an action, the plaintiff must show title in himself and recover, if at all, upon the strength of his own title and not the weakness of his adversary's title. Douglass v. Perry, 245 S.C. 486, 141 S.E.2d 348 (1965). In an action of trespass to try title, one in actual possession, not obtained by tortious eviction, is regarded as the rightful owner until proven otherwise. Cummings v. Varn, 307 S.C. at 41, 413 S.E.2d at 831; see also Beaufort Land, 86 S.C. 358, 68 S.E. 637 (in a trespass to real property case, the court stated possession not obtained by a tortious act is prima facie evidence of title, and upon this the plaintiff may rest until the defendant justifies his invasion of the possession by proving either title in himself or a license to enter from the true owner).

The court interpreted the Knoxes' complaint as one in trespass to try title and apparently concluded Bogan's counterclaim was one to establish the location of the boundary line between the properties. As to the northern tract, the court determined the Knoxes had "failed to carry their burden of proof in attempting to clarify their title to [the] disputed property." As to the southern tract, the court concluded the Knoxes relied on the theory of adverse possession which they failed to support by sufficient evidence. The court then found Bogan "clearly established his boundary to [the southern tract] by the preponderance of [the] evidence." While the trial court was technically incorrect in interpreting the Knoxes' pleadings as an action in trespass to try title and not as one of trespass quare clausum fregit, the Knoxes have not appealed the court's characterization and treatment of their action. But see Brogdon v. D.W. Alderman & Sons, 165 S.C. 234, 163 S.E. 795 (1932) (an action for damages for trespass quare clausum fregit brought into consideration a boundary dispute where defendant obtained a court order to have the property surveyed pursuant to statute to establish the boundary line). Moreover, we are convinced that the primary purpose of the Knoxes' suit is to determine title to the disputed tracts of land, an action in trespass to try title. See Corley v. Looper, 287 S.C. 618, 340 S.E.2d 556 (Ct.App.1986).

As stated in the leading case of Uxbridge, 135 S.C. 26, 133 S.E. 461:

It appears to be well settled by the unanimous opinion of judges and text writers that ordinarily the matter of settling disputed questions of boundaries is ancillary to actions at law of trespass to try title or ejectment....

In the case of Klapman v. Hook, 206 S.C. 51, 32 S.E.2d 882 (1945), brought as an action of trespass to try title, the court indicated that a disputed boundary line can be established by acquiescence of the parties for the period of the statute of limitations applicable to adverse possession cases. With this background in mind, we now turn to a discussion of the parties' claims to the two tracts.

Northern Tract

The trial court concluded the Knoxes made no claim to the northern tract by way of adverse possession. The Knoxes do not challenge that finding on appeal. Bogan argues in his brief the Knoxes have advanced no proof of ownership to entitle them to any relief. We agree. As noted previously, the Knoxes appear to argue they are entitled to possession by reason of the fact their deed should be construed to include the tract. The trial court adopted the survey submitted by Bogan finding it more accurately sets forth the metes and bounds description contained in an 1891 deed used by surveyors for both parties as the basis for establishing the boundary line. ¹ A review of the record reveals ample evidence to support the trial court's conclusion. We affirm its conclusion as to the northern tract. Moreover, even if the Knoxes claim ownership of this tract by adverse possession, they have not shown the elements of adverse possession. As best we can tell, they do not claim to have been in exclusive possession of the tract at any time, an essential element of adverse possession. Gregg v. Moore, 226 S.C. 366, 85 S.E.2d 279 (1954).

Southern Tract

The record is clear that the Knoxes and their predecessors in interest have been in possession of the southern tract for approximately seventy years. ² All witnesses for the Knoxes testified to an old fence separating the properties as being the acknowledged boundary line between the properties. While James Knox, Jr., ³ the only witness for Bogan who had personal knowledge of the history of the fence, testified there had never been a discussion or dispute about the fence being the property line, he acknowledged the fence existed all of his life, and that his father and thereafter the Knoxes occupied their property up to the fence without protest from him or his predecessor in title. In fact, James' testimony was to the effect that until he had a survey prepared in 1983, he either did not know where the line was or believed the fence was the dividing line between his property (now Bogan's) and the Knoxes' property.

The trial court denied the Knoxes' claim of title to the tract finding their possession was not hostile because they and their predecessors in title possessed the tract under the "assum[ption] that this disputed portion of property was their's [sic]" and, thus, their possession did not meet the hostility requirements of Lusk v. Callaham, 287 S.C. 459, 339 S.E.2d 156 (Ct.App.1986). Until recently, writers and this court alike thought that in South Carolina, unlike in most other jurisdictions, possession of property under a mistaken belief that property is one's own and with no intent to claim against the property's true owner could not constitute hostile possession. Id. Our Supreme Court in Perry v. Heirs at Law and Distributees of Gadsden, 316 S.C. 224, 449 S.E.2d 250 (1994), however, noted that the requirement of hostility is applicable to "cases involving boundary disputes between adjoining land owners only." Id. at 225, 449 S.E.2d at 251. The Court cited the case of Wigfall v. Fobbs, 295 S.C. 59, 367 S.E.2d 156 (1988) and noted that in Perry, unlike Lusk, the action involved "a dispute over an entire tract of land; therefore, the mistaken belief rule set...