Van Ness v. Schachte
| Citation | 141 S.E. 721,143 S.C. 429 |
| Decision Date | 09 February 1928 |
| Docket Number | 12371. |
| Parties | VAN NESS v. SCHACHTE. |
| Court | United States State Supreme Court of South Carolina |
Appeal from Common Pleas Circuit Court of Charleston County; M. L Bonham, Judge.
Action by M. Eloise S. Van Ness against Walter B. Schachte deceased, revived in the name of Marion H. Schachte. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.
The following are the exceptions referred to in the opinion:
I. Because the court erred in refusing to permit the witness, W B. Van Ness, to testify as to statements made to him by the defendant, Walter B. Schachte, since deceased, concerning the matter in controversy, and in holding said statements incompetent, whereas he should have held that such statements and conversation of the said defendant, Walter B. Schachte, since deceased, were relevant competent, and admissible.
II. Because the court erred in ordering a nonsuit in the cause, in that, the defendant having introduced on cross-examination documentary evidence in support of the defense, an issue of fact had thereby been made for determination by the jury.
III. Because the court erred in granting a nonsuit in this case, in that, under the testimony produced by plaintiff, there was sufficient evidence to go to the jury on the question of the true line between the lots of plaintiff and defendant.
IV. Because the court erred in granting a nonsuit, in that in the testimony produced by plaintiff there was sufficient evidence to go to the jury on the question of trespass by defendant, on the lands of plaintiff.
V. Because the court in effect held that the unauthorized removal of plaintiff's fence by defendant's grantor, and the erection of a stone coping on the sidewalk, adversely affected plaintiff's title to her lot so as to give defendant, Schachte, title thereto, whereas he should have held that the defendant purchased and held title to no more land than was contained in the lot actually owned by his grantor.
VI. Because under the ruling of the court the defendant is given title by adverse possession to a portion of the lot of plaintiff by virtue of a change in the line fence and the erection of a stone coping on the sidewalk by defendant's grantor, whereas he should have held that, under the law of South Carolina, title by adverse possession cannot be established, unless it appear that the premises claimed were held and possessed adversely by the claimant for the full term of not less than 10 years.
VII. Because the Court erred in holding as follows: "Now Schachte comes along and buys from Doscher; he finds on the record the deed from Doscher calling for 28 feet-what he is buying; as a physical fact a line of 28 feet and a stone coping fixed in the sidewalk which coincides with this claim for 28 feet"; whereas he should have held that the metes and bounds of Schachte's lot (there being no claim of adverse possession) were to be determined by the deed from Doscher to Schachte and the rules of location for determining the same, and that Schachte could not rely alone on the stone coping in the sidewalk and on an apparent frontage of 28 feet, as against either his grantor or the plaintiff herein.
VIII. Because the court erred in holding that, because the defendant, Schachte, found at the time of his purchase a stone coping fixed in the sidewalk, and a measurement of 28 feet on the ground to this coping, as the apparent front line, it was not incumbent upon said defendant to ascertain if that was the proper area; whereas he should have held that said defendant took only such area as was included in his deed of conveyance from Doscher, and that, when it appeared that adjoining lines were called for in this conveyance, the true boundary of the adjoining tract is the true dividing line between the lot conveyed and the adjoining lot.
IX. Because the court erred in not holding that the lines of defendant's lot and the lines of the plaintiff's lot were to be determined by their respective deeds, and that it was incumbent upon defendant to ascertain the boundary line between his lot and that of plaintiff by measurements based on the boundaries given in his deed, and not on apparent boundaries indicated by a coping on the sidewalk, which was not a landmark.
X. Because his honor erred in not holding that, inasmuch as it appeared from the testimony that the controversy between plaintiff and defendant was based soley on an alleged deficiency in the frontage of the lot claimed by defendant, existence of a deficiency in defendant's front line measurements gave no right to defendant to encroach upon plaintiff's lot in order to make up the deficiency.
N. B. Barnwell, of Charleston, for appellant.
Buist & Buist, of Charleston, for respondent.
This question arose out of a dispute with respect to a dividing line between two adjoining lots of land, located on the west side of Smith street in the city of Charleston. The facts are somewhat involved, but we shall endeavor to make such statement of them as will give a clear understanding of the controversy.
The Enterprise Real Estate Company (hereinafter referred to as the Enterprise Company), from which both parties to this action claim as a common source of title, prior to 1912 bought several lots of land in the city of Charleston, which included the lots now owned by the plaintiff and the defendant, respectively. The lands purchased by the Enterprise Company were a part of the lands formerly owned by one Thomas Bennett. In 1855 Bennett had Charles Parker, city surveyor, to make a plat of his lands, which is referred to herein as the Parker plat, and a sketch of which is shown below. We are concerned in the present case only with lots 80, 81, and 82, as shown on this plat. It will be observed that these lots lie to the west side of Smith street; their total frontage being shown thereon as 138 feet and 6 inches.
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In 1870, in the settlement of the estate of Thomas Bennett, William Hume, surveyor, at the direction of the court, made a plat of the Bennett estate lands, which, while not so extensive, is the same as the earlier plat of Parker.
Lot 80 known as the Parker lot, was conveyed to the Enterprise Company by Anna Parker, in 1907, in two parcels, described in her deed as having a frontage on Smith street of 25 and 27 feet, respectively. Lot 81, with a frontage of 51 feet on Smith street, and known as the Teskey lot, was conveyed to the Enterprise Company by Robert Teskey, by deed dated July 20, 1907. Lot 82, with a frontage of 36 feet on Smith street, and known as the Kessel lot, was conveyed to the Enterprise Company by the devisees of John Kessel by deed dated March 31, 1910. These three lots were all the lands acquired by the Enterprise Company of the lands formerly owned by Thomas Bennett, as shown on the Parker plat. It will be observed that the aggregate frontage of these three lots on Smith street, according to the conveyances to the Enterprise Company, is 139 feet, being 6 inches more than their aggregate frontage as shown on the Parker and Hume plats. This difference is found in the conveyance of Anna Parker to the Enterprise Company of lot 80, her deed to that company showing a frontage of that lot on Smith street of 52 feet, while the Parker and Hume plats show it to be 51 feet and 6 inches.
The Enterprise Company, after acquiring these lots, conveyed to Mary M. Duffy, in 1911, the northern portion of lot 80, with a frontage on Smith street of 35 feet, and referred to in the conveyance to her as being a part of the lot known as No. 80 on the Hume plat.
On October 8, 1912, the Enterprise Company had A. A. Everett, surveyor, to survey and make a plat of a portion of their remaining lands, beginning at the southern boundary line of the lot purchased by Mary M. Duffy. This plat was recorded on October 8, 1912, and a sketch of it is shown below:
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With respect to this plat, we are concerned only with lots 1 and 2 and the court fronting on Smith street. Each of these lots is given a frontage of 28 feet and the court 14 feet, making a total frontage of 70 feet. The northern boundary line of lot 2 and the southern boundary line of lot 1 were each shown thereon as marked by a fence. The aggregate frontage of these lots, Nos. 1 and 2, and the court, as shown on the Everett plat, taken with the frontage of the lot conveyed to Mary Duffy, would include, not only the entire frontage of the Parker and Teskey lots as shown on the Parker and Hume plats, but would extend 2 feet and 6 inches south beyond the northern boundary line of the Kessel lot (No. 82), taking a part of that lot. After the Everett plat had been made, the Enterprise Company conveyed to Carry M. Ostendorff, October 9, 1912, lot 2 as shown on that plat. In March, 1913, the Enterprise Company conveyed to Gustav Doscher lot 1, and in May, 1916, Doscher conveyed this lot to his wife. Its southern boundary line, which is the northern boundary line of the plaintiff's lot, is the one in dispute. In the conveyance to Gustav Doscher, the lot is described as "being a portion of the premises conveyed by Robert Teskey to Enterprise Real Estate Company by deed dated the 20th of July, 1907," and the southern boundary is given as "lands of Enterprise Real Estate Company, formerly of the estate of John Kessel." The Everett plat is referred to as showing the shape, marks, dimensions, and boundaries of the property conveyed.
At the time of the purchase of this lot by Doscher, in 1913, Mrs Eloise Van Ness, the plaintiff in this action, was in possession, under a written contract for its purchase from the Enterprise Company, of the lot occupied by her, which lies to the south of, and...
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