Williams v. Moore

Decision Date05 September 2012
Docket NumberNo. 5029.,5029.
Citation733 S.E.2d 224,400 S.C. 90
PartiesBarbara B. DANLEY WILLIAMS, Sylvia H. Durant Cotton, Janie Durant Ancrum, Tricia Durant Middleton and Carolyn Durant White, Respondents, v. Elgie M. MOORE, Larry M. Moore, W.F. Moore, Howard Danley Daniels, Jr., Earl Daniels, Cynthia Daniels, if they or any of them be alive; John Doe and Jane Doe, whose true names are Unknown and Fictitious names designating the unknown heirs, devisees, distributees, issue, executors, administrators, successors, or assigns of the above named Defendants, if they or any of them be dead, and William E. Danley, Elizabeth Danley, Elie Danley, Joe Danley, Rosetta Danley Simmons, Harriet Danley Durant, Elizabeth Danley Stigers, Howard Danley Daniels, William E. Danley, Jr., Harold Daniels, Melvin Durant, John A. Durant, all deceased; and Mary Roe and Richard Roe, whose true names are unknown and fictitious names designating infants, persons under disability, incompetents, imprisoned, or those persons in the military, if any; and also all other persons, known or whose true names are unknown, claiming any right, title interest in, or lien upon the real estate described in the Complaint herein, Of whom Elgie M. Moore, Larry M. Moore, and W.F. Moore are the Appellants. Appellate Case No.2010–151961.
CourtSouth Carolina Court of Appeals

OPINION TEXT STARTS HERE

Donna K. Taylor, of Taylor Bowley & Byrd, LLC, of Charleston, for Appellants.

James K. Holmes, of The Steinberg Law Firm, LLP, Richard E. Fields, and Barry I. Baker, all of Charleston, for Respondents.

LOCKEMY, J.

In this property dispute, Elgie and Larry Moore appeal the trial court's decision to grant relief to Barbara B. Danley Williams, Sylvia H. Durant Cotton, Janie Durant Ancrum, Tricia Durant Middleton, and Carolyn Durant White (collectively known as Respondents). Specifically, the Moores argue the trial court erred in: (1) basing its decision on the incorrect survey; (2) denying the Moores' motion for directed verdict based upon standing; (3) allowing inadmissible, unreliable hearsay testimony into the record; (4) basing its order upon findings of fact not reflected in the record; and (5) revealing bias in favor of the Respondents. We affirm the trial court.

FACTS

In 1905, William E. Danley purchased approximately eight and one-half acres near the town of Lincolnville.1 A plat of that property was prepared by J. Hamilton Knight (Knight plat) at the time of the conveyance and depicted an “old wagon road” running across the northern portion of the property before turning north across railroad tracks to the town of Ladson. Railroad tracks also ran along the northern boundary of the property.

Danley subsequently conveyed two and one-half acres of his property to William M. Richardson in 1910. He also conveyed a strip of land measuring 29 feet by 232 feet (the “boot”) to Central Realty Company (Central) in 1912. Everyone agreed the original purpose of the boot was to connect a planned subdivision to the old wagon road shown on the Knight plat to provide ingress and egress to Ladson. Title to the remaining acreage (Danley property) remained in the Danley family until the property was sold for non-payment of taxes to Charles Ross in 1959, who reconveyed the property to Harriet Durrant and Elizabeth Staggers by deed in 1960.2 Since that time, Durrant and Staggers have paid the taxes on the Danley property still shown as containing eight and one-half acres.

The two and one-half acre parcel and boot that Danley sold to Richardson and Central, respectively, were conveyed to Union Corporation (Union) in April of 1913. The deed for that conveyance referenced a plat prepared by James O'Hear dated February 1912 (O'Hear Plat). In preparation of the planned subdivision (Ladson Farms), Union had McCrady Brothers and Cheves, Inc. do a tracing (McCrady Tracing), dated September 20, 1917. The tracing was prepared using the O'Hear Plat. Lot No. 13 of Ladson Farms was sold to Patrick Hanley in 1917, and that conveyance references the McCrady Tracing.

Elgie Moore (Elgie), originally purchased fifty-seven acres to the south of the disputed property from Elaine Harrell Finklea in 1976. Thereafter, Elgie filed a plat prepared by James O'Hear Sanders (Sanders Plat) purporting to show the purchase of sixty-nine acres instead of fifty-seven acres. The additional acreage consisted of a large portion of Lot No. 13, then owned by the heirs of Hanley. The heirs of Hanley filed a boundary dispute action against Elgie. The boundary dispute between the heirs of Hanley and Elgie was settled with Elgie purchasing Lot No. 13 by quitclaim and special warranty deeds in 1999. 3 A plat prepared by George A.Z. Johnson (Johnson Plat) depicted Lot No. 13 as it was conveyed in the quitclaim deed. All parties concede the Johnson Plat is incorrect.

Respondents initially commenced this action on July 30, 2007, to quiet title to and determine the boundary of their property. Respondents also moved to refer the action to the Master in Equity, but the Moores objected and requested a trial by jury for the boundary dispute. The trial court ruled the boundary dispute would be tried by a jury, but the presiding trial court would determine how to handle the equitable issues. Upon the call of the case, all parties agreed to a bench trial.

The granddaughters of Danley, Sylvia H. Durant Cotton and Janie Durant Ancrum, testified at the trial. Cotton was 79 years old and Ancrum was 69 years old. Cotton lived on the Danley property at some point during her childhood and both women visited the Danley property as children. They testified that they would take a train to the Lincolnville Station and walk the mile to the Danley property along what was then a dirt road known as the old Lincolnville Road. Both remembered crossing over a small wooden bridge Danley built over a ditch on the side of old Lincolnville Road to get to his property. Cotton recalled that in the 1930's there was an old wagon road on the other side of the wooden bridge that connected to the adjoining subdivision.4 Cotton also testifiedthat in the early 1960's, Lincolnville Road was widened and paved. In order to widen the road, Cotton stated that a certain amount of land was taken from all the property along it, including the Danley property. Furthermore, she stated the Highway Department paved over the old wagon road as part of the widening of the highway. Cotton continued to visit the Danley property even after the family home collapsed. She stated that Elgie stopped her a few times while she was visiting the Danley property to ask her who she was and what she was doing there.

Ancrum was born after her grandfather passed away in 1939 and did not remember an old wagon road. She did remember a sandy path that led from the wooden bridge to her grandmother's fenced front yard. Ancrum testified that the Highway Department paved and widened Lincolnville Road to make it a highway. The widening included creating shoulders on the side of the highway and a ditch on at least one side. Due to the widening, Ancrum stated the sandy path she used to walk along had to be paved.

Respondents also offered the testimony of Ben Coker. Coker had been a land surveyor for 36 years.5 He started his own business with a partner and performed land surveying for South Carolina Electric and Gas, Mead Westvaco, and Dupont, as well as others. He had been appointed as a land surveyor by the Master in Equity in Dorchester County and qualified as an expert witness in other cases. Here, Coker was qualified as an expert land surveyor by the trial court.

Coker began by discussing the Knight Plat and testified it was not drawn to scale, contained only limited measurements, and did not show where the old wagon road was located on the property, how wide it was, or how far it was from the railroad tracks. Coker explained a Mead Westvaco plat, which depicted the boundary of an adjacent property, showed that an oak tree marked the northwestern corner of its property, which was also the southwestern corner of the Moore property. Coker was able to locate an oak tree that matched the description given in the Mead Westvaco plat. The oak tree was also referenced on the O'Hear Plat. He testified that while the actual tree had blown over, the stump was still standing and a rebar was found in it. After plotting the southern boundary from the oak tree to a square iron at the southeastern corner of the Danley property, Coker testified that his plat (Coker Plat), the Sanders Plat, and the Knight Plat all agreed on at least the southern boundary line. Coker continued to describe his procedure for surveying the disputed property. Coker stated that after looking at the Highway Department's condemnation plans, it was apparent the Highway Department was attempting to lay the new highway as best they could right on top of the existing old Lincolnville Road. Furthermore, he stated the boot is now located within the confines of the Department of Transportation (DOT) right-of-way as well as the railroad right-of-way.

The Moores cross-examined Coker on his use or non-use of the railroad right-of-way as a boundary, but the full record of that line of questioning was not provided. After being given a hypothetical where the northern boundary is assumed to be the railroad right-of-way, Coker agreed six feet would be left in the boot property after subtracting the land taken by the DOT right-of-way.

The Moores' expert surveyor, Ronnie L. Tyler, explained his method for preparing his plat (Tyler Plat). Tyler testified the oak tree Coker used as a boundary marker did not exist any longer because the tree was laying on its side with the root system attached to the end of the trunk. He stated the iron pin that was found in the oak tree's place was set by a surveying company in 2002, but was not accurate because there was a possible six and one-half foot variance due to the tree's uprooted position. Further, he testified he...

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