Perry v. Heirs at Law and Distributees of Gadsden

Supreme Court of South Carolina

Perry v. Heirs at Law and Distributees of Gadsden

449 S.E.2d 250, 316 S.C. 224, 1994 S.C. LEXIS 184

CourtSupreme Court of South Carolina

DecidedSeptember 6, 1994

Docket24141

StatusPublished

Cited by13 cases

This text of 449 S.E.2d 250 (Perry v. Heirs at Law and Distributees of Gadsden) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Perry v. Heirs at Law and Distributees of Gadsden, 449 S.E.2d 250, 316 S.C. 224, 1994 S.C. LEXIS 184 (S.C. 1994).

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Opinion

Per Curiam:

Petitioner asks this Court for writ of certiorari to review the Court of Appeal’s decision in Perry v. Heirs at Law & Distributees of Gadsden, _ S.C. _, 437 S.E. (2d) 174 (Ct. App. 1993). We grant the petition, dispense with further briefing, and affirm as modified.

In its opinion, the Court of Appeals found that the record does not support petitioner’s claim of title under adverse possession because there was no evidence of hostile possession, citing Lusk v. Callaham, 287 S.C. 459, 339 S.E (2d) 156 (Ct. App. 1986). It based this on the fact that petitioner had repeatedly assured the heirs that he intended to share the property with them and their interest would be preserved and protected. This conclusion was correct as there is amlpe evidence in the record to support this finding by the Court of Appeals.

However, as an alternative ground, the Court of Appeals held that petitioner’s adverse possession claim also failed because, according to petitioner’s own testimony, he thought he owned the 74-acre tract. Under Lusk, supra, the Court of Appeals reasoned that a claim for adverse possession does not lie under a mistaken belief that the property is one’s own and with no intent to claim against the property’s true owner. This application of Dusk was incorrect.

In Dusk, which involved a boundary line dispute, the Court *226 of Appeals noted that in South Carolina, unlike in most jurisdictions, possession under a mistaken belief that property is one’s own and with no intent to claim against the property’s true owner cannot constitute hostile possession. Citing Brown v. Clemens, 287 S.C. 328, 338 S.E. (2d) 338 (1985). However, in Wigfall v. Fobbs, 295 S.C. 59, 367 S.E. (2d) 156 (1988), this Court held that this rule is applicable only to cases involving boundary disputes between adjoining landowners. Here, this case involves a dispute over an entire tract of land; therefore, the mistaken belief rule set forth in Lusk is inapplicable.

Accordingly, we affirm on the ground that there is no evidence of hostile possession.

Affirmed as modified.

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Per Curiam:

Petitioner asks this Court for writ of certiorari to review the Court of Appeal’s decision in Perry v. Heirs at Law & Distributees of Gadsden, _ S.C. _, 437 S.E. (2d) 174 (Ct. App. 1993). We grant the petition, dispense with further briefing, and affirm as modified.

In its opinion, the Court of Appeals found that the record does not support petitioner’s claim of title under adverse possession because there was no evidence of hostile possession, citing Lusk v. Callaham, 287 S.C. 459, 339 S.E (2d) 156 (Ct. App. 1986). It based this on the fact that petitioner had repeatedly assured the heirs that he intended to share the property with them and their interest would be preserved and protected. This conclusion was correct as there is amlpe evidence in the record to support this finding by the Court of Appeals.

However, as an alternative ground, the Court of Appeals held that petitioner’s adverse possession claim also failed because, according to petitioner’s own testimony, he thought he owned the 74-acre tract. Under Lusk, supra, the Court of Appeals reasoned that a claim for adverse possession does not lie under a mistaken belief that the property is one’s own and with no intent to claim against the property’s true owner. This application of Dusk was incorrect.

In Dusk, which involved a boundary line dispute, the Court *226 of Appeals noted that in South Carolina, unlike in most jurisdictions, possession under a mistaken belief that property is one’s own and with no intent to claim against the property’s true owner cannot constitute hostile possession. Citing Brown v. Clemens, 287 S.C. 328, 338 S.E. (2d) 338 (1985). However, in Wigfall v. Fobbs, 295 S.C. 59, 367 S.E. (2d) 156 (1988), this Court held that this rule is applicable only to cases involving boundary disputes between adjoining landowners. Here, this case involves a dispute over an entire tract of land; therefore, the mistaken belief rule set forth in Lusk is inapplicable.

Accordingly, we affirm on the ground that there is no evidence of hostile possession.

Affirmed as modified.

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449 S.E.2d 250, 316 S.C. 224, 1994 S.C. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-heirs-at-law-and-distributees-of-gadsden-sc-1994.

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