Phillips v. Du Bose

• Decision Date: 09 March 1953
• Docket Number: No. 16725,16725
• Citation: 75 S.E.2d 56,223 S.C. 224
• Parties: PHILLIPS v. DU BOSE.
• Court: South Carolina Supreme Court

Page 56

75 S.E.2d 56

223 S.C. 224

PHILLIPS v. DU BOSE.

No. 16725.

Supreme Court of South Carolina.

March 9, 1953.

James P. Mozingo, III, Darlington, Shuler & Harrell, Kingstree, for appellant.

R. R. Whitlock, Lake City, for respondent.

STUKES, Justice.

Appellant brought this action against M. D. DuBose, who is named as sole respondent, upon a complaint in which she alleged that she was the owner and in possession of a tract of land containing 130 acres, more or less, upon which DuBose had trespassed by the cutting of timber of the value of $750, and she demanded judgment in the sum of $2,500 and temporary and permanent injunctions against further cutting and removal. DuBose answered and denied trespass upon appellant's land and alleged ownership and possession by himself and his predecessors in title of the land upon which the timber was cut, which adjoins appellant's land; and he denied ownership or possession by appellant of the land in controversy, which the evidence disclosed is about 11 acres lying on both sides of a large canal. During the pendency of the action DuBose conveyed the land adjoining appellant's land, including the parcel in dispute, to W. M. DuRant who does not appear to have been formally brought in as a defendant in the action but the record indicates that he was so considered by the parties, whereby the judgment under review is applicable to his title to the land.

The case is one at law, in which the jurisdiction of this court is confined to the correction of errors of law, not fact. Appellant mistakenly contends that we may review the factual findings, for which there is cited Little v. Little, 215 S.C. 52, 53 S.E.2d 884. Reference to that case, however, shows that it is inapplicable; court and counsel there expressly agreed that equitable issues were presented and they were tried as such by the court. Here the legal issues of title and possession of land were tried by a referee by consent (which was a waiver of trial by jury) and his findings were adopted by the court as its judgment, which limits our factual review on appeal to a determination of whether there was any evidence to sustain it. Peeples v. Cummings, 45 S.C. 107, 22 S.E. 730; Gregory v. Cohen & Sons, 50 S.C. 502, 27 S.E. 920; Gunter v. Fallow, 78 S.C. 457, 59 S.E. 70; Little v. Southern Cotton Oil Co., both opinions, 156 S.C. 480, 153 S.E. 462; Riley v. Berry, 189 S.C. 4, 199 S.E. 866. However, consideration of the evidence for the purpose of our presently limited jurisdiction has led to the conclusion that the judgment of the trial court is well supported by the facts, which exceeds the requirement for affirmance.

The evidence developed that appellant is the owner of two adjoining tracts which she acquired by deed from L. R. Truluck dated November 2, 1929, described as containing 82 1/2 acres bounded on the north by the other tract conveyed by the deed and on the east by lands of John Floyd, who was respondent's predecessor in title; and 20 acres, more or less, bounded on the east by lands of John Floyd and of the estate of McClam, and on the south by the 82 1/2-acre tract. The 20 acres is known as the Fulmore tract and was acquired in 1923 by appellant's grantor by deed of Josiah Fulmore and was described as bounded on the south by land of L. R. Truluck (appellant's grantor) and John Floyd (respondent's predecessor in title). No plat of the 20-acre tract is referred to in the conveyances which were placed in evidence. Appellant's grantor obtained title to the 82 1/2-acre tract by deed of W. H. Dennis, dated October 16, 1919, in which it is described as being bounded on the north by lands of Fulmore (quite plainly referring to appellant's 20-acre tract) and on the east by lands of Floyd, which is respondent's tract. Incorporated in the description by express reference is a plat by E. J. Smith, surveyor, dated April 18, 1912. This apparently unrecorded plat is of important significance in the controversy although it was not introduced in evidence. When appellant was asked about it on cross-examination she said that she thought one of her attorneys had it; again the said, 'Well, I don't have a plat.'

Turning to the deeds in respondent's chain of title, in all of the several successive conveyances dating back to 1931 the acreage is stated as 38 1/3, more or less, without reference to any plat; and in all of them the northern boundary is referred to as the Fulmore land (which is appellant's 20-acre tract) and west as appellant's land (her 82 1/2 acres). This is of significance because under appellant's contention the respondent's land would have (under the great weight of the evidence) to be bounded on the north (or really northwest) by respondent's tract of 82 1/2 acres, whereas the deeds in evidence in respondent's chain of title show the northern (or northwestern) boundary to be appellant's Fulmore 20-acre tract. It is evident that the latter tract is long and narrow from east to west and constitutes, by the deed descriptions, the northern (or northwestern) boundary of both appellant's 82 1/2-acre tract and respondent's tract.

After commencement of the action respondent employed a surveyor, W. J. Green, to survey his tract of land and the resulting plat, dated February 11, 1946, shows 46.4 acres, which includes the land in dispute, and the northern (or northwestern) boundary as appellant's Fulmore tract and the western boundary as appellant's 82 1/2-acre tract. The certificate on the plat recites that data was taken from previous surveys by M. A. Thomas, E. J. Smith and P. G. Gourdin. The testimony of the surveyor is clear and convincing. He had on the ground with him a tracing of the E. J. Smith survey of appellant's 82 1/2-acre tract which he followed and found the marks which were called by Smith. He found no evidence of the line contended for by appellant. Previously, in 1944, he was employed by appellant or her husband to locate and survey her boundaries; her husband accompanied him on the survey and showed him some of the lines, and he dined with them on the day of the survey. He testified, in effect, that he located the boundary now in dispute but, quoting from his testimony, 'not where they (the Phillips') wanted it.' He then had possession of the Smith plat which he said he kept in his office for a year.

It is clearly inferable from all of the evidence that this controversy stemmed from the fact that about 1920 a canal was cut by a Drainage District across the northern tip of respondent's elongated (north and south) tract whereby a small wooded area was effectively separated from the remainder and particularly from that portion which was cultivated, which was the southern part of the tract. The canal was about 10 feet deep and as wide, which prevented ordinary passage and left more or less neglected by the successive owners and tenants the comparatively small timbered area to the northwest of the canal, which was part of respondent's tract. For the purpose of this Drainage District a map of the lands of which it was composed was compiled by Mr. P. G. Gourdin in 1920 and on this compilation, upon which appellant here relied, he showed the line (sketched rather than surveyed) between her larger tract and respondent's tract at least about as contended for by appellant, but no marks or monuments are shown and no courses and distances, which makes it of little value and really none in this case in view of a recorded composite map by Mr. Gourdin which was made in 1944, introduced in evidence by respondent, which contains plat of a complete survey, with marked corners, courses and distances, of appellant's 82 1/2-acre tract, the eastern line of which substantially coincides with respondent's western line which is shown on the plat made by his surveyor, Green, in 1946, which it will be remembered the latter testified was located with the aid of the data of...