Butler v. Lindsey

361 S.E.2d 621, 293 S.C. 466, 1987 S.C. App. LEXIS 389

• Court: Court of Appeals of South Carolina
• Decided: September 8, 1987
• Docket: 1019
• Status: Published

Opinions

Cureton, Judge:

In December 1985, Butler sued Lindsey for trespass claiming Lindsey was using his property without permission. Lindsey answered and counterclaimed alleging he held legal title, or alternatively, he owned the property by adverse possession. He also counterclaimed for the value of improvements made by him to the property should the court decide he did not own it. Butler’s reply to Lindsey’s counterclaim prays that the “Court issue its order quieting title as between these litigants.” The case was referred to the master with authority to enter a final order. The Master concluded Lindsey had trespassed on Butler’s property and awarded Butler damages of $900.00. The master also ruled that Butler should compensate Lindsey $4,500.00 for improvements made to the property. Lindsey appeals the master’s holdings that he did not own the property; that Butler’s trespass action was not barred by the Statute of Limitations; that the value of the improvements was only $4,500.00; and that Butler was entitled to an award of nominal damages of $900.00. Butler appeals Lindsey’s entitlement to compensation for the improvements and the amount of compensation. We affirm as modified.

Butler and Lindsey are adjoining landowners. The property in dispute is a one acre peninsula-shaped tract of land located on Yonges Island in Charleston County. The parcel was at one time part of a larger tract owned by D. H. Towle who in 1904 conveyed the tract to W. H. Cox and H. H. Butler. These parties subsequently partitioned the property with H. H. Butler purportedly receiving title to the disputed parcel. In 1946, H. H. Butler, the respondent’s father, conveyed part of his land containing 141 acres to Butler which according to early plats contained the disputed property. The confusion began in 1946 when a plat was prepared which arguably included the disputed parcel within the parameters of the tract owned by Cox’s successor in title. Plats made subsequent to 1946 definitely included the disputed parcel within the land owned by Cox’s successors in title. In 1964, H. P. Riser, successor to Cox’s title, conveyed to Lindsey a parcel of land referring to a 1955 plat which showed the disputed parcel as part of the land conveyed to Lindsey. There is no evidence that Butler or his father ever deeded the disputed property to Lindsey or his predecessors in title.

We are unable to determine whether Butler’s action was tried as one for trespass quare clausum fregit or trespass to try title. Regardless, a trespass action is an action at law, as in an action in the nature of trespass to try title. Uxbridge Co. v. Poppenheim, 135 S. C. 26, 133 S. E. 461 (1926), Corley v. Looper, 287 S. C. 618, 340 S. E. (2d) 556 (Ct. App. 1986). Likewise an adverse possession suit is an action at law. Lynch v. Lynch, 236 S. C. 612, 115 S. E. (2d) 301 (1960).

Although Lindsey argues error in the failure of the master to find that he holds legal title to the disputed parcel, our review of the record indicates substantial evidence to support the master’s ruling. His claim is manifestly without merit and we dispose of it under provisions of Section 14-8-250, Code of Laws of South Carolina, 1976.

ADVERSE POSSESSION

The master concluded that Lindsey had not “adversely possessed the land in that he [had] not occupied the land exclusively [and] openly for ten (10) years or more.” We find evidence in the record to support this conclusion especially as it relates to the exclusivity of Lindsey’s possession. Moreover, Lindsey did not except to the finding regarding exclusivity; his exceptions' address only the finding that he had not openly occupied the land. Where there is no exception to a trial court’s finding of fact, the finding is conclusive on appeal. Stein v. Xepapas, 204 S. C. 239, 29 S. E. (2d) 257 (1944). We also note that the majority of Lindsey’s exceptions are so general that they do not comply with Supreme Court Rule 4, Section 6, which requires each exception to contain a concise statement of law or fact and to contain a complete assignment of error. Despite these technical violations, we will address the merits of the issue.

A party claiming title by adverse possession must show the extent of his possession. Weston v. Morgan, 162 S. C. 177, 160 S. E. 436 (1931). While color of title draws the constructive possession of the whole premises to the actual possession of a part only, and is evidence of the extent of the possession claimed, it is not of itself evidence of adverse possession, and it does not follow that adverse possession can be proved by less evidence when the entry is under color of title than when it is not. 3 Am. Jur. (2d) Adverse Possession Section 145 (1986); see, Graniteville Co. v. Williams, 209 S. C. 112, 39 S. E. (2d) 202 (1946) (The only office of color of title is to define the extent of the claim and to extend the possession beyond the actual occupancy to the whole property described in the instrument).

Possession is presumed to follow the legal title to land. Knight v. Hilton, 224 S. C. 452, 79 S. E. (2d) 871 (1954); Lyles v. Fellers, 138 S. C. 31, 136 S. E. 13 (1926). The mere possession of land does not in and of itself show hostility to the owner. “Indeed, there is every presumption that such an occupancy is in subordination to the legal title.” Knight v. Hilton, 224 S. C. at 456, 79 S. E. (2d) at 873. In order for Lindsey to maintain the instant action, he must rebut Butler’s presumption of possession by proof of adverse possession [Love v. Turner, 71 S. C. 322, 51 S. E. 101 (1905)] and such proof must be by clear and convincing evidence. Zinnerman v. Williams, 211 S. C. 382, 45 S. E. (2d) 597 (1947); Thomas v. Dempsey, 53 S. C. 216, 31 S. E. 231 (1898); Grant v. Grant, 288 S. C. 86, 340 S. E. (2d) 791 (Ct. App. 1986); Lusk v. Callaham, 287 S. C. 459, 339 S. E. (2d) 156 (Ct. App. 1986).

Adverse possession is an affirmative defense; Weston v. Morgan, 162 S. C. 177, 160 S. E. 436 (1931). The burden of proof of adverse possession is on the one relying thereon. 162 S. C. at 192, 160 S. E. 436. To constitute adverse possession, the possession must be actual, open, notorious, hostile, continuous, and exclusive for the entire statutory period. Mullis v. Winchester, 237 S. C. 487, 118 S. E. (2d) 61 (1961); Gregg v. Moore, 226 S. C. 366, 85 S. E. (2d) 279 (1954); Lusk v. Callaham, supra; Croft v. Sanders, 283 S. C. 507, 323 S. E. (2d) 791 (Ct. App. 1984).

Because an adverse possession claim is an action at law, the character of the possession is a question for the jury or fact finder, in this case, the master. Lynch v. Lynch, supra; Lyles v. Fellers, supra; Stokes v. Murray, 95 S. C. 120, 78 S. E. 741 (1913); Abel v. Hutto, 42 S. C. L. (8 Rich) 42 (1854). Only where the evidence as to adverse possession is susceptible of but one inference does the question become one of law for the court. Mullis v. Winchester, supra; Atlantic Coast Line Ry. Co. v. Searson, 137 S. C. 468, 135 S. E. 567 (1926). Therefore, our review of the facts is limited to a determination of whether there is any evidence reasonably tending to support the master’s findings. Knight v. Hilton, supra; Lusk v. Callaham, supra.

Butler and his son testified that they had always used the land several times a year to hunt and continued to use it for that purpose up until the time of trial. There is no question that the land is suited only for recreational purposes such as hunting or boat docking, since it is too low for residential building. Acts of ownership of open land need only be exercised in a way consistent with the use to which the land may be put and which the situation of the property permits without actual residency or occupancy. Mullis v. Winchester, supra. Lindsey testified that prior to building the dock in 1977, he left his boats there at low tide and allowed his children to camp out there on weekends. The only evidence in the record of any improvements on the land by Lindsey date from 1977-1978, when a dock, boat landing, and fence were constructed. Lindsey testified that around 1966 he laid small culverts in a slough or marsh area located between the disputed property and property on which he had placed a trailer in the 1960’s. He testified he did this so he could drive his tractor across the slough onto the disputed property. However, there is no evidence he then made any improvements to the disputed parcel. Lindsey testified:

Q. Prior to 1974, had you done anything to improve the land?

A. Yes, sir. In 1966 ... wait a bit. Yes, we put some small culverts in that slough down there, so that we could drive the tractor across it.

Furthermore, although Lindsey quotes testimony of Butler in his brief which implies Butler’s acknowledgement of Lindsey’s occupation of the disputed tract at the time of the May 8,1975 letter from Butler’s attorney to Lindsey, the quote, when placed in proper context along with all of the other evidence in the record, shows no actual occupation by Lindsey until 1977, and within ten years of the commencement of this action. Thus, the record reveals both parties used the property for recreational purposes throughout the ten year period that Lindsey claims to have acquired title by adverse possession.

The general rule is that where an owner of property and an occupier are both in possession, the possession of the legal owner prevails to the exclusion of the other. Middleton v. Dupuis, 11 S.C.L. (2 Nott & McC.) 310 (1820). The exclusive possession necessary to acquire title by adverse possession is not satisfied if occupancy is shared with the owner or with agents of the owner. Farella v. Rumney, 649 P. (2d) 185 (Wyo. 1982); 3 Am. Jur. (2d) Adverse Possession Section 78 (1986).

In this case, because there is evidence that Butler continued in possession of the land to which he held record title, Lindsey’s acts of possession cannot meet the necessary requirement of exclusive possession needed to establish his claim by adverse possession. Of course we have no power to weigh the evidence in this case. The Hibernian Society v. Thomas, 282 S. C. 465, 319 S. E. (2d) 339 (Ct. App. 1984). But, even if we were authorized to weigh it, we would nevertheless hold that Lindsey has not proven adverse possession by clear and convincing evidence. We, therefore, affirm the findings of the master on this issue.

STATUTE OF LIMITATIONS

Lindsey argues Butler’s trespass action is barred by the Statute of Limitations. The master held that because the trespass was a continuing one, the statute provided no bar. We agree. Although Section 15-3-530, establishes a six year limitations period in an action for trespass to real property, and the statute commences running at the occurrence of the first actual damages, where the trespass is a continuing one, “the landowner may at any time recover for injury to his land which occurred within the statutory period.” McCurley v. South Carolina State Highway Department, 256 S. C. 332, 335, 182 S. E. (2d) 299, 300 (1971), quoting Hilton v. Duke Power Co., 254 F. (2d) 118 (4th Cir. 1958). Thus, the part of Butler’s trespass claim as occurred during the six year limitation period is not barred by the Statute of Limitations.

Lindsey also argues that Butler’s cause of action is barred by Section 15-3-340, Code of Laws of South Carolina, 1976 because “there is no evidence that Butler was seized or possessed of the premises in question within 10 years before the commencement of the action.” Section 15-3-340 requires a plaintiff to be “seized or possessed of the premises ... within ten years before the commencement of” a trespass action. Lindsey implicitly argues that Butler’s occasional use of the property for hunting purposes does not constitute possession. We reject this argument. Butler’s occasional recreational use of the disputed parcel is consistent with the uses to which the property may be put. Mullis v. Winchester, supra. Furthermore, it has been noted as a universal truth that the law considers the title to the locus in quo draws with it constructive possession thereof. Lane v. Mims, 221 S. C. 236, 70 S. E. (2d) 244 (1952); Lyles v. Fellers, 138 S. C. 31, 136 S. E. 13 (1926); Love v. Turner, 71 S. C. 322, 51 S. E. 101 (1905).

NOMINAL DAMAGES AWARD

Lindsey objects to the master’s award of $900.00 “nominal damages” to Butler for trespass upon his land. The award is based on “one hundred ($100.00) dollars per year from 1977 forward [to 1986] amounting to nine hundred ($900.00) dollars.” Lindsey argues that $900.00 represents substantial damages, not “nominal” damages, and were therefore erroneously awarded. He relies upon the case of Hinson v. A. T. Sistare Construction Co., 236 S. C. 125, 113 S. E. (2d) 341 (1960), overruled on other grounds, McCall v. Batson, 285 S. C. 243, 329 S. E. (2d) 741 (1985), which held that an award of $200.00 in a trespass action constituted substantial damages. The facts in Hinson are clearly distinguishable from the facts in this case. Hinson involved trespass by a highway construction company on property which had been condemned by the Highway Department, during the time the condemnation award was under appeal. The Supreme Court concluded that while the construction company had technically trespassed upon the land, Hinson sustained no damages because he had already been compensated in the condemnation award for the injuries he claimed to have sustained due to the trespass. Additionally, the trespass in Hinson was a single trespass, not a continuing trespass, as involved here. Moreover, unlike in Hinson, there is some evidence Butler sustained actual damages. He testified that the disputed parcel was not suited for a dock and he would have to remove the dock. Even if the master erroneously characterized the damages as nominal, such affords no basis for reversal, where, as here, there is some evidence of actual damages in the amount awarded. JKT Co. Inc. v. Harwick, 274 S. C. 413, 265 S. E. (2d) 510 (1980). (An error not found to be prejudicial does not constitute grounds for reversal.)

We do find nevertheless that in awarding damages of $100.00 per year for nine years, the trial judge awarded damages for years outside the six year limitations period. We therefore modify the award to $600.00.

COMPENSATION FOR IMPROVEMENTS

In 1977, Lindsey built a dock on the disputed parcel and also provided the property with water and electricity. He testified the dock cost him $15,000.00, excluding the value of his personal labor.

Although Butler testified he intends to remove the dock, his expert witness testified the dock enhanced the value of the land in the range of from $3,000.00 to $6,000.00.

Lindsey pleaded the Betterment Act, Section 27-27-10 et seq. as the basis for recovery of the value of the improvements he made to the disputed parcel.¹ Butler argues that the improvements were made by Lindsey after he knew or should have known of Butler’s ownership of the parcel. Section 27-27-70 permits a defendant to request by counterclaim the value of improvements made to the land where he believed “at the time he made the improvements or betterments that his title thereto was good in fee.” The question of whether Lindsey believed he had good title to the disputed parcel at the time he made improvements is a question of fact to be decided by the trial judge, not this court on appeal. See, 41 Am. Jur. (2d) Improvements Section 47 (1968). Moreover, there is a presumption that improvements made by one in possession under color of title were made bona fidely. 41 Am. Jur. (2d) Improvements Section 46 (1968). Because we find some evidence to sustain the trial judge’s implicit finding that Lindsey believed his title to be good at the time he made the improvements, we affirm on this issue.

Finally, Butler argues the evidence does not sustain the award of $4,500.00 to Lindsey under the Betterment Act. In order to recover for the improvements, Lindsey must establish the increased value of the land in consequence of the improvements. Dunham v. Davis, 232 S. C. 175, 101 S. E. (2d) 278 (1957); Section 27-27-20, Code of Laws of South Carolina, 1976. A defendant’s entitlement under the statute is established by showing the value of the land prior to the improvements, the value of the land after the improvements, and the amount the land increased in value because of the improvements. Howard v. Kirton, 144 S. C. 89, 142 S. E. 39 (1928). The record contains evidence to satisfy these requirements.²

Accordingly, the order of the trial judge is affirmed except to modify the damages awarded Butler from $900.00 to $600.00.

Affirmed as modified.

Shaw, J., concurring. Gardner, J., dissenting.

1 Butler does not argue that the Betterment Act is inapplicable to Lindsey’s claim because Butler’s claim is not one to recover possession of real estate. See, C & S National Bank v. Modern Homes Construction Co., 248 S. C. 130, 149 S. E. (2d) 326 (1966). .

2 Butler seems to argue that the evidence on this point is limited only to the testimony of Lindsey of the monies spent to construct the improvements. He overlooks the fact that his own expert testified that the improvements had increased the value of the land in the range of from $3,000.00 to $6,000.00.