Littleton v. Roberts
| Decision Date | 28 July 1936 |
| Docket Number | 14342. |
| Parties | LITTLETON v. ROBERTS. |
| Court | South Carolina Supreme Court |
Appeal from Greenville County Court; J. L. Plyler, Judge.
Action by Minnie Littleton against Will F. Roberts. Judgment for the plaintiff, and defendant appeals.
Reversed and remanded, with instructions.
B. F Martin, of Greenville, for appellant.
D. B Leatherwood, of Greenville, for respondent.
The plaintiff, respondent here, brought action to recover of defendant, appellant here, damages, actual and punitive, for alleged tresspass upon her four-acre tract of land in Greenville county. The case was tried in the county court by Judge Plyler, with a jury. A verdict was rendered for plaintiff in the sum of $300 actual damages. Thereupon Judge Plyler issued an order restraining and enjoining the defendant from trespassing upon, occupying, or using the land in dispute, or to prevent plaintiff's enjoyment, use, and possession thereof.
A motion for new trial was made on the minutes and on the ground of after discovered evidence, which motion was denied. This appeal followed and is predicated upon nine exceptions, one of which (the eighth) has been abandoned.
The complaint alleges plaintiff's ownership and possession of the four-acre tract of land, with description thereof; that defendant owns lands immediately east of plaintiff's tract; that defendant has entered upon plaintiff's described tract of land and committed various acts of trespass thereon by cutting ditches thereon and by ploughing and cultivating the same, and did commit other acts of trespass thereon; that plaintiff has demanded of defendant that he discontinue his "acts of trespass in the unlawful occupation and use of her premises, which defendant fails and refuses to do." She demands damages and that plaintiff be "enjoined against further trespass occupying and using plaintiff's premises."
Defendant pleads general denial, except that he admits being in possession of the land, which he claims as his own; pleads adverse possession for ten years, and for twenty years, and since 1910, when deed was made to him by J. W. Gray, master; that neither the plaintiff, her ancestor, predecessor, or grantor, was seized or possessed of the premises within ten years, or within twenty years, before the commencement of the action. He sets up a counterclaim for damages for trespass on his land by plaintiff and seeks an injunction against further trespass.
A question which demands immediate consideration, and which may be determinative of the appeal, is this: Can the plaintiff maintain this action unless she shows actual or constructive possession of the land in dispute?
This is not an action to try title, nor is it an action to recover possession of real estate.
Admittedly it is an action in trespass quare clausum fregit. That action is thus defined by Black's Law Dictionary (3d Ed.) p. 1476: "That species of the action of trespass which has for its object the recovery of damages for an unlawful entry upon another's land is termed 'trespass quare clausum fregit.'-'breaking a close' being the technical expression for an unlawful entry upon land."
In the case of Berger v. Lexington Lumber Co., 178 S.C. 72, 182 S.E. 156, 157, this court, speaking of an action in quare clausum fregit, said:
In order for plaintiff to recover in this action, it was necessary for her to prove that she had actual or constructive possession of the disputed terrain at the time the alleged acts of trespass were committed.
The trial judge correctly charged: "When you have a claim of title you will be presumed to be in possession of everything contained in the limits of your deed." That is a correct definition of "constructive possession," but it does not go far enough in its application to this case, as we shall presently show.
In the old case of Davis v. Clancy, 3 McCord, 422, Judge Nott, for the Court of Appeals, said this: (Italics added.)
In the case of Vance v. Beatty, 4 Rich. 104, Judge Whitner, for the Court of Appeals, said:
"The question to be decided is, whether in the case made by the report of the presiding Judge, the action of trespass quare clausum fregit can be sustained.
The action of trespass quare clausum fregit is founded on possession, and in this form recovery cannot be had without it. The possession heretofore recognized, however, may be actual or constructive. Where the plaintiff has the actual occupancy or possessio pedis, the right of action has been long settled, and is indisputable. But where no such actual occupancy exists, it has been also held that, on shewing title in himself, the plaintiff may maintain this action, because, as it is said, even although there has been no formal entry or occasional occupancy, the title to the locus in quo draws after it possession, and this in our cases has been called constructive possession. So, too, where there has been actual occupancy of part of a tract of land, with the limits of the claim well defined, the constructive possession extends to the whole. The cases of Davis v. Clancy & Johnson, (3 McCord, 422), Peareson v. Dansby & Nelson, (2 Hill, 466) and McGraw et al. v. Bookman, (3 Hill, 265), are full to these points.
Where there is no conflict of possession, therefore, there is no difficulty in understanding and applying these rules.
In the case before the Court plaintiff relies on his title, and hence insists that, having shewn this, upon legal principles he has constructive possession, and the requisition of the law is met. But the defendant replies that he is the actual occupant, and opposes, therefore, his actual possession as a bar. Which, then shall prevail?
For a casual trespass, one resting on his title alone may maintain this action, because trespassers of this description acquire no possession and have nothing to oppose. But where the defendant is in actual possession the case is different; for as is said in Amick v. Frazier, (Dud. 340) it would be 'a solecism to say that one can have a constructive possession of that which is in the actual possession of another.' In this contest between actual and constructive possession the latter has always been made to yield, or, as was said in the recent case of McColman v. Wilkes, (...
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