Moore v. Cummings

• Decision Date: 22 October 1910
• Citation: Moore v. Cummings, 87 S.C. 166, 69 S.E. 154 (S.C. 1910)
• Parties: MOORE v. CUMMINGS et al.
• Court: South Carolina Supreme Court

69 S.E. 154

87 S.C. 166

MOORE v. CUMMINGS et al.

Supreme Court of South Carolina

October 22, 1910

Appeal from Common Pleas Circuit Court of Hampton County; Geo. W Gage, Judge.

Action by James W. Moore against W. F. Cummings and another.From a judgment for plaintiff, defendants appeal.Affirmed.

W. S Smith and W. H. Townsend, for appellants.W. S. TillinghastJ. W. Manuel, and Lyles & Lyles, for respondent.

JONES C.J.

The plaintiff brought this action on April 4, 1908, to recover damages, actual and punitive, for negligent and willful trespasses upon certain lands of plaintiff in Hampton county by cutting down many valuable pine trees, and nearly destroying a pine forest near plaintiff's old home place, and thereby impairing its value as a place of healthful residence.The complaint also sought injunction against further trespasses, and a temporary injunction was obtained.The defendant Garvin denied the alleged trespasses and plaintiff's allegation of ownership and possession, and alleged title in himself and defendant Cummings, and also, denying the alleged trespasses and plaintiff's ownership and possession, set up license from defendant Garvin to enter and cut the timber.Upon the issue of title thus raised, the case was submitted to a jury before Hon. Geo. W. Gage, presiding judge.The jury rendered a verdict in favor of plaintiff for $800, and judgment rendered therefor, and permanent injunction granted.

Appellant's exceptions relate solely to the charge.The first exception alleges that the court charged in respect to matters of fact when he instructed the jury: "Now, I charge you that these papers put in evidence show a title."The papers referred to here were (1) deed of Wm. Youmans to John Moore for 38 acres of land, dated September 3, 1860, with plat; (2) deed of Wilson, sheriff, under judgment and execution in Haveland et al. v. John Moore to the plaintiff, dated May 5, 1873; (3) deed of Ruth, sheriff, to plaintiff, for 12 acres of land, under judgment and execution in the case of A. P. Youmans v. William Youmans, dated in 1883.Plaintiff's testimony showed that his father was in possession of the 38-acre tract from 1860 to the time of his death in 1871, and that plaintiff has been in possession ever since, although the deed was executed in 1873, and that plaintiff held possession of the 12-acre tract from 1866 as agent for William Youmans and from 1883 to the present time in his own right, and that these deeds covered the locus in quo.Plaintiff further proved that he had been paying taxes on the land all the time.There was no material contradiction of this testimony.The charge fairly construed was not a charge upon the facts.The court, as we see it, merely intended to construe the purport of the deeds, and, as the general charge clearly shows, left the question of possession and location thereunder with the jury, but, as the testimony was practically all in favor of plaintiff's title and possession thereunder for more than 30 years, we would not reverse the judgment for some slight inaccuracy of language which could not have prejudiced defendants.The rule is well settled that possession for 20 years under a deed presumes a grant.

The second exception complains that the following charge was upon the facts: "When you settle the question of title, if you settle it in Mr. Moore's favor, you go another step...