Holden v. Cantrell

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] February 25, 1915. The opinion of the Court was delivered by This is the second appeal in this action for damages for trespass. See 88 S.C. 281, 70 S.E. 815. Plaintiff and defendant, Levi Cantrell, own adjacent lands — parts of the same original tract which was a square mile, and was divided into three tracts. Plaintiff's land extends entirely across the eastern side of the square. The western side is divided into two tracts (owned by Alexander and Cantrell) by an irregular line extending from a point on the western side of the square to the plaintiff's line. The description in the mesne conveyance are very indefinite, the calls being mostly for artificial marks, most of which have been obliterated by time, and but few courses and distances are given. Hence, the difficulty in locating the dividing line between plaintiff and defendant, which is the issue in the case. The land in dispute — 18 acres — lies within a triangle made by lines A, B and D on the plat made by the surveyors. Lines A and B meet at the apex, an admitted corner between plaintiff and Cantrell on the northwest line of the original tract. D is the base of the triangle and is a continuation of the eastern end of the line between Cantrell and Alexander. Plaintiff claims to line A and defendant to line B.

In 1880, Gen. Irvine, a surveyor, surveyed and platted the lands now owned by defendant, Cantrell, then belonging to the estate of Moses Cantrell. This survey was ex parte, and was made for the purpose of partitioning the lands of the estate of Moses Cantrell. The testimony is conflicting as to whether lines B and D were old marked lines when Irvine made his survey, or were then for the first time established and marked by him. At the first trial a copy or pencil sketch of Ervin's plat was produced by defendant and put in evidence; but it was lost or misplaced and was not produced at the second trial. Line A extends from the admitted corner S. 32 E. by a post oak, admittedly on the line between Cantrell and Alexander, and thence S. 30 E. by a shoal on a branch to the southeast line of the original tract. Line B extends from the admitted corner S. 42 E. to its intersection with line D at a corner either found or made by Ervin and marked on the plat, "Pine stump — Ervin."

Plaintiff's testimony tended to show that she and her predecessors in title always claimed and exercised acts of ownership to line A, and that line B was first run and marked by Ervin, and that it was never agreed to or acquiesced in by her, or her grantors, as the true line. Defendant's testimony tended to show that he and his predecessors in title claimed and exercised acts of ownership to line B, and that lines B and D were evidenced by old marks, when Ervin made his survey, and that plaintiff's predecessors in title, or at least some of them acquiesced in line B, which is referred to in the testimony as the Ervin line, as the true boundary.

Respondent objects to the consideration of a number of appellant's exceptions on the ground that they are too general. Exceptions 18 and 19, before they were amended by leave of this Court, were defective in form, in that they merely referred to the grounds of the motion for a new trial made on Circuit and the defendant's requests to charge, which are set out elsewhere in the record, and not in the exceptions. Under rule 5, these exceptions would not have been considered in that form. Fowler v.Harrison, 64 S.C. 313, 42 S.E. 159. This does not mean that the grounds of the motion and the requests should have been set out twice in the record. They should not. The correct method would have been to incorporate them. or so much of them, or so much of the matter therein contained, in the exceptions as appellant wished to have this Court consider, and then state in the record that the exceptions correctly stated the grounds of motion and requests to charge. Standford v. Cudd, 93 S.C. 367, 76 S.E. 986. But the record should have contained the statement last mentioned, for this Court will not consider statements of fact appearing only in the exceptions. The other exceptions are not obnoxious to the objection made. Most of them are commendably concise and specific, and might have been made even more so without being objectionable.

Some of them, as amended, are objectionable, because they incorporate at length the testimony to which objection was made, and are argumentative in form, making them needlessly long and complicated. There are entirely too many exceptions. Many of them raise the same question. In Simpson v. Cox, 95 S.C. 382, 79 S.E. 102, we indicated the manner in which exceptions should be prepared.

The parties agreed upon a survey, each side appointing a surveyor. While the surveyors do not agree in their testimony as to which is the true line, they concur in the plat in evidence, and agree that it correctly represents the lines contended for by plaintiff and defendant, respectively, and the physical objects represented thereon. There is shown on this plat at the base of the triangle, but outside of it, an old field, in which is the site of a house, known as the Crow house, also the line of an old fence which enclosed the field and house and a part of the land in dispute, running across the base of the triangle. Plaintiff's testimony tended to show that this house was built and the field cleared and fenced by her predecessors in title more than fifty years ago, and that she and they have had possession thereof ever since. The plat also shows a shoal on a branch outside of the triangle, but near the field. As heretofore stated, plaintiff's testimony tended to show that she and her predecessors in title claimed to line A, which crossed the branch at the shoal. There was, therefore, no error in allowing plaintiff's surveyor to testify to the location of these physical objects, even though some of them were not on the land in dispute. Nor was there error in allowing him to testify that if line B (claimed by defendant) were projected from the "pine stump — Ervin," at the base of the triangle, it would cut off from plaintiff's land not only the Crow house and a part of the old field enclosed by the fence, but also other fields which have been in possession of her and her grantors for more than fifty years, as to most of which her title is undisputed. This testimony was relevant, because it tended to prove that line B was not the true boundary. The correct location of disputed lines is often determined by reference to physical objects not directly on them, or within the disputed area.

For the same reason there was no error in allowing plaintiff's surveyor to testify to the acreage of the three tracts into which the original tract had been cut, as claimed by the respective owners, even though one of them was not involved in this litigation. While quantity as matter of description is ordinarily one of the lowest in the scale of importance, yet there may be circumstances in which it would be entitled to controlling influence. At any rate, the plaintiff was entitled to have the jury consider it, and give it such weight as they deemed it worthy of.

We see no error in allowing plaintiff's surveyor testify that he could not run a straight line fifty-two chains long through hilly woodland without the aid of an instrument, a fact which needed no testimony to prove it. This was brought out presumably to explain the slight bend in the line claimed by plaintiff at the post oak where it intersected the line between Cantrell and Alexander.

The record affords no foundation for the assignment of error in allowing reference to be made in the examination of witnesses and in the argument of counsel to the suit between plaintiff and Alexander, which presumably involved the location of the line between them. Some of the witnesses who testified in that suit also testified in this. Reference to their testimony in that case, and as to when they had gone over the disputed lines in this case, or had done other things, whether before or after the trial of that case, was natural and not improper or prejudicial, especially as nothing was said about what was the result in that case.

Nor does the record disclose any foundation for the assignment of error in allowing plaintiff's counsel to comment upon the absence of the pencil sketch of the Ervin plat at the second trial. It does not appear what the comment was, or that any objection was made to it, or that the Judge made, or was requested to make, any ruling upon the subject.

Under rule 77 of the Circuit Court the point is not available to defendants that there was no evidence to support a verdict for punitive damages, as it does not appear in the record that a motion for nonsuit or direction of the verdict on that issue was made.

There was no error in admitting evidence of the declarations of former owners of plaintiff's land, made while they were in possession thereof, accompanying and explaining acts of ownership and tending to show the character and extent of their possession. Turpin v.Brannon, 14 S.C.L. (3 McC.) 261; Martin v.Simpson, 15 S.C.L. (4 McC.) 262; Leger v. Doyle, 45 S.C.L. (11 Rich.) 109; Ellen v. Ellen, 16 S.C. 132; Levi v. Gardner, 53 S.C. 24, 30 S.E. 617; Holden v. Cantrell,88 S.C. 283, 70 S.E. 815.

There was no error in admitting the testimony of William Holden, a former owner of plaintiff's land, as to a conversation had at the Crow house between his father, then the owner of plaintiff's land, and Moses Cantrell, then the owner of defendant's land, in which they said where the line was. The testimony was not obnoxious to section 438 of the Code of procedure for two reasons: 1. It was not as to a transaction or communication between the witness and the deceased, Mr. Cantrell. The conversation was between the father of the witness and Mr. Cantrell. 2. It was not against a defendant who sustained any of the relations to the deceased mentioned in the statute. Jones v. Plunkett, 9 S.C. 392; Cantey v. Whitaker,17 S.C. 527; Brice v. Miller, 35 S.C. 537, 15 S.E. 272;Rapley v. Klugh, 40 S.C. 134, 18 S.E. 680. These cases also show that his Honor erred in excluding the testimony of the defendant, James Cantrell, as to what Josiah Holden told him about the line while he was the owner and in possession of the plaintiff's land, since plaintiff does not bear to Josiah Holden any of the relations mentioned in the section.

Defendant requested certain instructions which will be reported. They were refused on the ground that they involved the facts. This was error. Most of them contained only propositions of law — rules which have been laid down by this Court for the guidance of juries in determining disputed boundaries. While most of these rules are not inflexible, and may be subject to modifications, dependent upon the peculiar facts of particular cases, yet as general rules they were correctly stated in the requests. The application of some of them was involved in the case of Connor v. Johnson, 59 S.C. 115,133, 37 S.E. 240, where the Court said: "While it is true that a question of location is largely a question of evidence, and cannot, therefore, be reduced to any definite or fixed rule (Coats v. Matthews, 11 S.C.L. (2 N. McC.) 99), yet there are certain general rules of location which, from a very early period in our judicial history (Bradford v.Pitts, 9 S.C.L. (2 M. Con. Rep. 115), have been recognized by our Courts down to the decision under the former appeal in this case (53 S.C. 90, 30 S.E. 833), where these rules are thus stated: `In locating lands the following rules are resorted to, and generally, in the order stated: 1st, Natural boundaries; 2d, artificial marks; 3d, adjacent boundaries, and, 4th, courses and distances.' But in every one of the cases recognizing these general rules, which we have consulted, the Courts have invariably also recognized the doctrine that these general rules are not inflexible, but may be modified by the circumstances of the case."

From the facts herein before stated, it will be seen that it was important that the jury should have been instructed in the general rules by which they should be governed in determining the location of the line in dispute. As they were not so instructed, after proper request, we think the error was prejudicial and that it calls for reversal of the judgment.

Judgment reversed.