McRae v. Hamer

• Citation: 146 S.E. 243,148 S.C. 403
• Decision Date: 09 January 1929
• Docket Number: 12557.
• Parties: McRAE v. HAMER et al.
• Court: South Carolina Supreme Court

146 S.E. 243

148 S.C. 403

McRAE v. HAMER et al.

No. 12557.

Supreme Court of South Carolina

January 9, 1929

Appeal from Common Pleas Circuit Court of Marlboro County; E. C Dennis, Judge.

Action by Murdock McRae against A. W. Hamer and others. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.

J. K Owens, of Bennettsville, for appellants.

McColl & Stevenson and Rogers & Ellerbe, all of Bennettsville, for respondent.

COTHRAN J.

This is an action to define and have settled a boundary line between the land of the plaintiff and that of the defendant. The grounds upon which the plaintiff relies to sustain the jurisdiction of the court on the equity side is that the original evidences of the line, marks, trees, and monuments have been obliterated and destroyed by the defendant Hamer and that the action is necessary to prevent a multiplicity of actions.

The matter reaches this court upon an appeal from an order of his honor, Judge Dennis, overruling a demurrer to the complaint upon the general ground.

The defendants have been allowed to review the case of Uxbridge v. Poppenheim, 135 S.C. 26, 133 S.E. 461. The court is not disposed to question the correctness of that decision even if it were necessary to reaffirm it in order to sustain the order of the circuit judge; this necessity does not arise for the reason that neither of the grounds relied upon by the plaintiff in the case at bar was presented in the Uxbridge Case.

The Uxbridge Case distinctly recognizes the general rule, thus:

"It appears to be 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 (as indicated by Section 5308, Vol. 3, Code of 1922), and that equity will not entertain an action simply to settle and fix a boundary line between adjoining owners, unless the plaintiff's complaint discloses some feature of equitable cognizance as, for instance, fraud or misconduct on the part of an adjoining landowner, by reason of which a confusion or obliteration of the boundary line has resulted; mutual mistake of the adjoining owners; the neglect of a duty founded upon the relationship of the parties; the practical certainty of a multiplicity of suits growing out of the confusion or uncertainty; and the inadequacy of a remedy at law (perhaps others)."

In the case at bar it is alleged that the boundary line between the lands of the parties has been obscured by the acts of the defendant Hamer in cutting down line trees and monuments before existing and in obliterating the marks in the timbered area. It is conceded by even the authorities which would deny to the court of equity jurisdiction in cases of disputed boundaries that this fact presents a case for its equitable intervention. In addition, the complaint alleges facts which clearly present a second feature of equitable cognizance, the prevention of a multiplicity of suits. Either is sufficient to sustain the complaint against a demurrer.

In 2 Story, Eq. Jur. (14th Ed.) § 835, it is said: "The general rule now adopted is, not to entertain jurisdiction, in cases of confusion of boundaries, upon the ground that the boundaries are in controversy, but to require that there should be some equity superinduced by the acts of the parties; such as some particular circumstances of fraud, etc." And, at section 839: "In the first place it may be stated that if the confusion of boundaries has been occasioned by fraud, that alone will constitute a sufficient ground for the interference of the Court."

"Equity exercises jurisdiction to establish boundaries which have once been defined and established but have become lost or obliterated where the owners of the adjacent premises are responsible for the loss or obliteration of the boundary and to prevent multiplicity of suits." Erie Co. v. Smith, 135 A.D. 365, 120 N.Y.S. 323.

In a note to 15 Am. Dec. at page 754, Judge Freeman says:

"As fraud is a recognized head of original jurisdiction in equity, it will be a sufficient ground for a court of chancery to interpose in a case of confusion of boundaries, if the confusion was occasioned by the fraud of the defendant"--citing cases.

In Muck v. Timber Co. (C. C. A.) 273 F. 469 (certiorari denied 257 U.S. 645, 42 S.Ct. 55, 66 L.Ed. 414), it was held:

"Besides this [a statutory ground], there is an allegation in the complaint, and some testimony tending to support the allegation, that defendant or his agents wrongfully and fraudulently attempted to destroy certain original witness trees and to efface original markings, and did mark other trees so as to make them appear to be the original witness trees. These allegations were sufficient, we think, to require the exercise of jurisdiction, and the Court properly over-ruled the motion to dismiss based on the ground that there was a plain remedy at law"--citing King v. Brigham, 23 Or. 262, 31 P. 601, 18 L. R. A. 361; U.S. v. Texas, 143 U.S. 621, 12 S.Ct. 488, 36 L.Ed. 285; McDowell v. Carothers, 75 Or. 126, 146 P. 800; Sprigg v. Hooper, 9 Rob. (La.) 248.

In Watkins v. Childs, 80 Vt. 99, 66 A. 805, 11 Ann. Cas. 1123, the court said:

"All now agree that a controversy over the location of a boundary between independent proprietors does not of itself afford sufficient ground for equitable interference. Indeed, a confusion of boundaries alone does not. There must exist some equity superinduced by the act of the party defendant, or a danger of a multiplicity of suits, to warrant an application to the Court of Chancery for the appointment of commissioners. *** But it seems clear from the authorities that the established

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