Polson v. Ingram
| Citation | 22 S.C. 541 |
| Parties | POLSON v. INGRAM. |
| Decision Date | 21 April 1885 |
| Court | United States State Supreme Court of South Carolina |
1. The recitals in a deed are only binding upon such persons as are shown to be parties and privies.
2. The law is jealous of a claim to an easement, and the party asserting such a claim must prove his right to it clearly; it cannot be established by intendment or presumption.
3. Requests to charge upon the force and effect of testimony properly refused.
4. Upon a disputed question of easement, the judge could not properly grant a request to charge that ignored the possibility of a right obtained by grant.
5. While an acquired easement may be defeated by express grant or by prescription, the law will not presume its abandonment from twenty years' non-user; the abandonment of an easement is a question of intention to be determined by the jury.
6. Getting timber by the owner of the soil from the land covered by defendant's back-water would not extinguish defendant's easement, if such acts were not inconsistent with the easement claimed.
7. What constitutes color of title is a question of law, but whether the matter showing color exists is a question for the jury.
8. A deed, probated and recorded, and proved to have been in the possession of the party producing it, and of those under whom he claims, for more than thirty years , properly received in evidence as an ancient deed.
Before COTHRAN, J., Chesterfield, February, 1884.
The opinion of this court states the nature of this action, and some of the facts proved at the trial. Other matters necessary to a full understanding of the case are as follows:
A survey under order of the court showed that forty acres of land were covered with back-water from defendant's dam of which twenty acres belonged to the plaintiffs. There was testimony to show that this land was swamp, and covered in wet weather or by high water independently of the dam, but fit for pasturage at other times; and also that the back-water destroyed juniper trees of value. Defendant's mill and dam were built about twelve years before the trial but there had been a mill-dam there many years ago, and a part of the old dam remained. Ainsley Polson cleared some of the land now covered by back-water, and the plaintiffs have since cut hoop-poles from the land.
The deed from Parker to Ratcliff was dated May 14, 1804. The probate was in proper form and appeared to be regular. The signature of the probating officer was not proved. There was also a certificate of registry upon the deed, and proof that the public records of the county had all been destroyed. Alexander McQueen, witness, testified that this deed had been in his father's possession and his own for over thirty years; that his father held possession under it until his death in 1828, and then his father's heirs until the sale to Ingram in 1870.
The exceptions correctly state the requests to charge, and so much of the charge as appears in the brief.
Messrs. Hough & Kennedy , for appellants.
Mr. C. P. Townsend , contra.
The action below was commenced September 5, 1881, and was brought to recover damages for overflowing the plaintiffs' land (as alleged) with a pond of water, by the defendant Ingram. Evander Polson was made a defendant, because he did not consent to join as plaintiff. The defendant Ingram interposed as defences: 1st, a general denial; 2nd, a right to overflow; and 3rd, that he was the owner of the land as purchaser from his co-defendant, Evander Polson.
On the question of title, the plaintiffs claimed as heirs at law of one Ainsley Polson, deceased. And to support title in Ainsley Polson, their father, they introduced, first, a certified copy of a grant and plat of one thousand acres, to one Gutheridge Lyons, dated November 6, 1787, conveying the land; next, an ancient deed from Wallace, E. A. Ellerbe, and M. A. Ellerbe, to the said Ainsley Polson, dated January 6, 1848, of five hundred acres, being a part of the Lyons grant lying north of Juniper Creek, the land described in the complaint. They then proved the death of Ainsley on March 3, 1858, and that the plaintiffs and Evander were his children and heirs at law. They also proved the possession of Ainsley from two years before the deed of January 6, 1848, until his death, March 3, 1858. The defendant overflowed the land in 1875 or in 1874. The youngest child of Ainsley was 30 years old at the time of the trial. No partition had ever taken place.
It was admitted that the land upon which the defendant Ingram built the dam, which caused the overflow, was also granted to Gutheridge Lyons, but of junior date to the other grant. The defendant produced an ancient deed from Parker to Ratcliff, dated May 14, 1804, purporting to convey the land upon which his mill had been erected. This deed contained recitals that the land granted to Lyons, had by him been conveyed to one Joseph Booth, and by Booth to Parker (but there was no other evidence of the truth of these recitals). It also contained the following recital: " Also it is understood, and is an express part of this contract, that the said John Ratcliff is to have the entire and exclusive privilege of drowning, or covering with water, as much of the lands of said Parker above this tract, now intended to be conveyed, as the said Ratcliff may think proper to do, by building a mill or mills on their land, and the said land so covered with water, or to be covered, is considered by the parties part of this agreement." The defendant also introduced a deed from Ratcliff to Alexander McQueen, embracing the same land, and containing in substance the same words as above, with the same recitals. Alexander McQueen died, leaving a widow, three sons, and two daughters, one of whom, to wit, Alexander McQueen, had executed a quit claim deed of this tract, to the defendant Ingram, November 23, 1870. The defendant also held a deed from Evander Polson dated May 3, 1879, and some evidence was offered to show that Evander Polson had acquired title by adverse possession.
The jury found for the defendant. The plaintiffs have appealed upon exceptions as to the charge, and refusals to charge, as follows:
1. " Because his honor, after request, refused to charge the jury, ‘ that the deed made by Elisha Parker to John Ratcliff, bearing date May 14, 1804, did not convey to the said John Ratcliff the right to overflow the one thousand acres granted to Gutheridge Lyons, dated November, 1787, and now claimed by the plaintiffs, as it nowhere appeared in evidence that Elisha Parker had title to the tract claimed by the plaintiffs, or to such an easement thereon when he made said deed.’
2. " Because his honor, after request, refused to charge, ‘ that the mere recitals in the deeds made by Elisha Parker to Ratcliff, and also the recitals in the deed from Ratcliff to McQueen, sr., are no evidence that they had the right to overflow or cover said land with a pond of water.’
3. " Because his honor refused to charge, ‘ that if it has not been proven that either Elisha Parker or John Ratcliff or Alexander McQueen, sr., overflowed and covered the land claimed by the plaintiffs with a pond of water for the full period of twenty years; or that they together covered said land with water for the full period of twenty years, then there is no evidence that either the said Elisha Parker, John Ratcliff, or Alexander McQueen, sr., ever had a right to any such easement.’
4. " Because his honor refused to charge, ‘ that twenty years non-user will presume the abandonment of an easement.’
5. " Because his honor refused to charge, ‘ that if Ainsley Polson, and his heirs, held and possessed so much of the grant of land to Gutheridge Lyons as lies north of Juniper Creek, and is described in the deed made by Clement D. Wallace, E. A. Ellerbe, and M. A. Ellerbe, for the full period of...
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