Barker v. Deignan , 1886 S.C. LEXIS 133 ( 1886 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

In the action below the plaintiff, respondent, sought to recover damages from the defendant, appellant, for an alleged trespass upon plaintiff’s land, of which plaintiff, in his complaint, claims ownership, and upon which he alleged that defendant had wrongfully entered, dug up the ground, and otherwise injured the premises, to the damage of the plaintiff one thousand dollars. The defendant denied each and every allegation in the complaint. The case was tried by jury, his honor, Judge Pressley, presiding, and .a verdict was rendered for the plaintiff. There were no requests to charge from either side, but the defendant appeals from certain portions of the charge which the presiding judge delivered to the jury.

The defendant on the trial attempted to prove paramount title, and also adverse possession, to overthrow plaintiff’s title, which was complete unless overthrown by one or other of these defences. In the defence of paramount title the defendant relied upon a grant to one Cleland, and before the production of this grant certain testimony was introduced in reference thereto, upon condition that the grant should be produced afterwards. This grant was never produced, and the judge in his charge ruled out all of the testimony which had been received in reference thereto. And the exception as to that matter is as follows: “Exception 6th. Because his honor charged the jury adversely to the defendant in regard to the Cleland grant, when he had excluded all questions as to that grant, and specially had excluded the decrees of this court in cases where the validity of that grant had been established.” ¹

The foundation for the other exceptions was, what the judge said in reference to the defence of adverse possession. It appears that defendant was in possession of a small lot of land on Var-dell’s Creek and Town Creek, waters of Cooper River, upon which he had a mill. This property had been purchased from the plaintiffs ancestor, S. G. Barker, and called for other lands of the said S. G. Barker as its southern boundary in the deed of conveyance; and it seems that the defendant made use of these adjoining lots near his mill, which were water lots not built upon, to float his saw logs and rafts of timber, and in which certain poles were put up for keeping the rafts in. And the question of adverse possession turned upon the testimony in reference to the use made of said lots.

His honor charged in substance, that to give title by such possession, it must be adverse and continuous, and of such character as to give the opposite party fair notice that the possession is held adversely; and by way of illustration of what he meant by the term “continuous,” he said: “If a man squats on another man’s land, and even clears a few acres and builds a fence and cultivates it; if he removes the fence and carries it away before his possession of ten years is complete, and abandons the cultivation of the field, all his claim is gone; and if he comes back and commences a new possession, his adverse possession commences from the new start. You cannot link two, three, four, or five trespasses together to make one adverse possession. It must be continuous. There must be the same continuous possession from the time you do it until your title is perfect in ten years. Does the floating of a raft of timber, which is put there for use and moved as soon as used — does the doing that from time to time, floating it in a place which the owner is not using, constitute adverse continuous possession ? If at any time he moved all these rafts away, that broke the possession. If at any time the premises were cleared, that broke the possession, and his floating rafts there six months after, or a year after, was not a continu-' anee of the first trespass, if that was the character of his possession. It must be ten years’ continuous possession, and I submit to you whether the floating rafts, such as has been proved in this-case, was such adverse continuous possession as would be fair notice to the owner that he was claiming the land. If it was not, your verdict must be for the plaintiff. * * * But if you believe that the defendant has been in the adverse continuous possession of the land for ten years, you will give him a verdict for so much of the land as he has had possession of, if you can find it.”

The exceptions of appellant to this charge which raise questions of law are as follows:

1st. That his honor erred when, to illustrate his idea of adverse possession, he said : “If at any time the (defendant) moved all those rafts away, that he broke his possession.” And again: “If at any time the premises were cleared, that broke his possession.” The effect of which was to impress the jury with the belief that there could be no right acquired by adverse possession, where the adverse right was claimed by the use of land for keep-' ing lumber used in the business of a shipbuilder, if that lumber was used for the purpose for which it was kept on the land.

2nd. That his honor erred when he said to the jury, that if at any time he, the defendant, moved all those rafts away, that broke his possession, and led to the conclusion that, however short the interval of time between the use of one raft and replacing it by another, a new start for the adverse possession commenced, with each successive raft of timber.

. 3d. Because his honor erred when he said to the jui’y that, “If the poles were put there simply for the purpose of fastening the rafts there occasionally, that would not constitute notice that he claimed the land,” when by this instruction the jury were led to accept this as the construction by the judge of the testimony, and such construction was not that which the testimony required.

The other exceptions raise no questions, but are rather in the nature of allegations as to what had been proved and what the defendant claimed.

It will be observed that the general proposition of law laid down by the Circuit Judge as to adverse possession, to wit, that it must be'continuous, adverse, and of such character as to give notice to the true owner, is not contested in the appeal. We assume, then, that proposition to be the law of the case. The appellant, however, complains in his first ground above of the manner in which the judge illustrated his idea of “continuous” possession. When the charge is read as a whole, as it was delivered to rhe jury, it will be seen that the judge endeavored to draw a distinction between repeated trespasses and a constant holding after having once taken possession, with the view to impress upon the minds of the jury the principle upon which the one would not give title and the other would. There was certainly no error in pointing out this difference, because, while it is admitted that continuous, adverse, and notorious possession for ten years will ordinarily give title, yet it is equally certain that no number of sporadic trespasses will have that effect.

The locus claimed by the defendant by his adverse possession was a peculiar one. It seems to have been covered mostly by water, and the surface was not used at any definite spot continuously to float timber for the use of the mill near by, and as the defendant presented no color of title, his claim was necessarily confined to his pedis possessio. Where that was, it was no doubt difficult to tell; hence the pertinency of the judge’s charge where he said to the jury, “But if you believe that he (defendant) has had ten years’ continuous adverse possession of that land, you will-give a verdict for so much of the land as he had possession of, if you can find that out.” It being the purpose of the judge to point out the difference between repeated acts of trespass and actual continued possession, and how possession might be broken, we do not think that the language used by him, and objected to, was calculated to mislead the jury, as stated in the exception; especially as he submitted it to the jury to determine whether the possession was continuous or in the nature of repeated trespasses.

What is said above applies also to the second exception. The judge said: “If at any time the premises were cleared, that broke the possession.” That is, if there was no other indication of ownership or possession except the presence of floating rafts, when all these were cleared away, all evidence was gone, and the possession broken. But the judge went on to say, with the view to point out clearly the difference between repeated acts of trespass and a constant holding for use, that after the lot was thus cleared, the defendant putting rafts back there six months after, or a year after, was not a continuance of the first trespass; and upon the whole he left it to the jury to say whether the possession of the defendant was a holding for constant use by him, or whether the lot was used just as occasion and his necessities required, each use thereof being a separate trespass.

The third exception objects to what the judge said in reference to the poles, on the ground that the jury might have been led thereby to the conclusion that the poles were put there simply for the purpose of fastening the rafts, and if so, that would not constitute notice. We do not see that this followed, or was probable from the judge’s remark. He said: “If the poles were put there simply to fasten the rafts, that would not constitute notice that he claimed the land;” but whether they were put there for that purpose or not, the judge did not intimate. He left that to the jury.

No error has been pointed out to us in the argument growing out of what the judge said in reference to the Cleland grant (6th exception). The other exceptions contain allegations of facts claimed to have been proved on the trial. This being a jury case, the facts were for them.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.