Rush v. Thigpen, 17293
| Decision Date | 15 May 1957 |
| Docket Number | No. 17293,17293 |
| Citation | 231 S.C. 230,98 S.E.2d 245 |
| Parties | W. A. RUSH, J. P. Rush, Sr., Turner Rush, Mrs. S. B. Thompson, J. M. Thompson, James McFadden and D. N. Baker, Appellants, v. Troy THIGPEN, Respondent. |
| Court | South Carolina Supreme Court |
Henry E. Davis, George W. Keels, Florence, for appellants.
McEachin, Townsend & Zeigler, Florence, James Hugh McFaddin, Manning, for respondent.
Appellants, owners of separate tracts of land, located for the most part in Florence County, surrounding a tract of about three hundred acres owned by the respondent, brought this action against him for the purpose of determining the boundaries between his property and theirs. The cause was tried before the Honorable G. Badger Baker, Judge of the Twelfth Circuit, without a jury; and from his decree of June 20, 1956, comes this appeal.
The allegations of the complaint are, in substance, as follows:
(1) That the defendant claims title to approximately three hundred acres of land located for the most part in Florence County, known as the Hudson Mill Tract, consisting principally of an old mill pond, and embracing only a small area of upland; and that the plaintiffs W. A. Rush, J. P. Rush, Sr., Turner Rush, Mrs. S. B. Thompson, J. M. Thompson, James McFadden and D. N. Baker own in fee simple and are in possession of tracts of land in the said county that practically surround the said mill pond tract claimed by the defendant.
(2) That the plaintiffs and the defendant respectively claim title to their properties under deeds and other instruments in writing; and that a controversy has arisen between them with respect to the location of the boundary lines between the plaintiffs' lands and the defendant's mill pond tract, the proper location of said boundary lines depending upon the construction and validity of the instruments constituting the chains of title under which the respective parties claim.
(3) That because the boundary lines between the lands of the plaintiffs and the defendant's property are an entirety and cannot be determined piecemeal by separate suits the plaintiffs have a community of interest which will be affected by the judgment, and are made parties under the provisions of Section 10-2008 of the 1952 Code.
(4) That efforts to reach an agreement with the defendant to establish the boundary lines by survey without litigation have failed.
(5) That the defendant has entered upon the lands of some of the plaintiffs and has cut and removed timber therefrom, and threatens and intends to cut and remove timber from all the lands of the plaintiffs involved in this action.
(6) That he plaintiffs are without adequate remedy at law for the trespasses of the defendant, committed and threatened.
(7) That some of the logs cut from the property of one or more of the plaintiffs have not yet been disposed of by the defendant, and he should be enjoined from disposing of them pending the determination of this action.
The prayer is for a decree 'adjudging and declaring the rights of the plaintiffs and the defendant respecting the land and properties involved in this action'; enjoining the defendant from trespassing on and cutting and removing timber from the lands of the plaintiffs and from disposing of the logs already cut therefrom; and requiring the defendant to account for the value of any of the plaintiffs' logs already disposed of by him.
The answer, in addition to a general denial, alleges that the defendant is the owner in fee simple and in possession of the Hudson Mill Pond Tract by virtue of a deed from Frankie Floyd recorded in Florence County in Deed Book 121 at page 277, and that his boundary line is the high water mark of Hudson Mill Pond.
The substantial issue at the trial was whether the correct boundary between respondent's property and the properties of appellants was as shown on a plat made by E. J. Smith, Surveyor, in October, 1925, upon which the appellants relied, or as shown on a plat made for the respondent by Ebert Floyd, Surveyor, in January 1954. The trial judge held that the boundary as shown on the Floyd plat was the true boundary line.
The exceptions assign error on the part of the trial judge:
(1) In refusing to grant an order of survey;
(2) 'In holding that appellants must recover on the strength of their title, when no issue of title was involved';
(3) In not holding that the respondent was bound by the Smith plat; and
(4) In accepting the boundary as shown on the Floyd plat.
These questions will be considered in the order stated.
On or about March 18, 1954, respondent's counsel served notice upon counsel for the appellants that they would apply before Judge Baker on April 2, 1954, for an order of survey in accordance with Circuit Court Rule 36. By letter of March 29, 1954, appellants' counsel advised counsel for the respondent that they would consent to such an order of survey; but no order was taken. When the case was called for trial about two weeks prior to July 1, 1955, appellants' counsel stated they understood that the hearing was to be on the motion for an order of survey; respondent's counsel stated that they were ready to go to trial on the merits and that the motion for survey was withdrawn. Appellants' counsel then contended that the motion for survey could not be withdrawn after they had given their consent for such order. The court rejected this contention and directed that the case proceed to trial; whereupon appellants' counsel requested a continuance for the purpose of enabling the appellants to have a survey made. This request was granted and the case was set for trial on July 1, 1955. On that day appellants appeared with their counsel and proceeded to trial without any further motion or objections relative to a survey or an order of survey.
Appellants contend that the court erred in not issuing an order of survey because of Section 57-452 of the 1952 Code, which provides:
'If any cause be depending in any circuit court or within its jurisdiction wherein the title or boundaries of lands shall be brought into dispute, the judge of the court shall appoint surveyors at the nomination of the parties, to survey such lands, at the charge of such parties, and to return such survey, on oath, at the next sitting of the court'.
This statute is not mandatory. As was said in Cruikshanks v. Frean, 3 McCord, 14 S.C.Law, 84: 'Either party may resort to it when for the want of other evidence of identity it becomes necessary; but when they think proper to put their rights upon other evidence, it would be a strange construction to compel them to provide more than was necessary * * *.' See also Thomas v. Jeter, 1 Hill, 19 S.C.Law, 380; Patterson v. Crenshaw, 32 S.C. 534, 11 S.E. 390; Welsh v. Atlantic Coast Line R. Co., 107 S.C. 534, 93 S.E. 196.
But even if the statute were mandatory, appellants' contention cannot be sustained, for two reasons. In the first place, appellants did not request an order of survey after the respondent had withdrawn his motion for it; instead, they asked for and were granted a two weeks' continuance to enable them to have their own survey made; and they thereby waived their right to insist upon a survey under Section 57-452. Secondly, it has not been made to appear that they have been prejudiced by the absence of a survey under that section. Metze v. Meetze, S.C., 97 S.E.2d 514.
Essentially, this is an action of trespass to try title, Little v. Little, 223 S.C 332, 75 S.E.2d 871; and its nature was not changed by reason of its being cast under the declaratory judgment statute, Legette v. Smith, 226 S.C. 403, 85 S.E.2d 576. The trial judge correctly ruled that appellants, who were the plaintiffs, must depend for recovery upon the strength of their own title, not the weakness of that of their adversary, Warren v. Wilson, 89 S.C. 420, 71 S.E. 818, 992.
It appears that at some time prior to the year 1880 Hudson's Mill Pond was created by the construction of a dam and a concrete spillway at or near the lower (southern) end of Douglas Swamp; that in May, 1921, a written agreement was entered into between J. J. DuBose, then owner of the Mill Pond tract, and W. H. Player and L. C. Floyd, owners of properties adjoining it, whereby the said parties agreed that the mill dam should be destroyed and the water of the pond allowed to flow out; that the dam was destroyed shortly thereafter; and that title to the Mill Pond tract was at some time thereafter acquired by Frankie Floyd, who conveyed it to the respondent by deed dated January 19, 1948.
Appellant W. A. Rush appears to be the owner of four tracts adjoining the Hudson's Mill Pond tract, as follows:
1. A tract of 63 acres to the west of it, acquired by deed of J. F. Bland dated October 4, 1937, and deed of Lillie Mae Sowers Wilson dated September 8, 1941;
2. A tract of 50 acres to the east of Hudson's Mill Pond tract, acquired by deed of J. P. Thomas dated August 4, 1947;
3. A tract of 79 or 80 acres to the east of Hudson's Mill Pond tract, acquired by deed of L. C. Floyd dated October 18, 1932; and
4. A tract of 104 acres to the east of Hudson's Mill Pond tract, acquired under the will of his father, John W. Rush.
Appellant J. P. Rush, Sr., a brother of W. A. Rush, appears to be the owner of a tract of 98 acres to the east of Hudson's Mill Pond tract, acquired under the will of his father, John W. Rush.
Appellant J. M. Thompson appears to be the owner of a tract of 164 1/2 acres, lying to the west of Hudson's Mill Pond tract, acquired by deed of Thompson Mercantile Company dated January 25, 1941.
The other appellants did not testify, and there is nothing in the record, other than the plats hereinafter mentioned, to indicate the area or location of their properties or how they acquired them. The Ebert Floyd plat, put in evidence by the respondent, shows as owners of the several tracts adjoining, to the west of, the Hudson's Mill Pond tract, the following: S. B....
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