THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Frances S. Smoak, as Personal Representative
of the Estate of Curtis P. Smoak, and Frances S. Smoak, individually,
Appellant,
v.
Terry McCullough,
Respondent.
Appeal From Aiken County
Robert A. Smoak, Jr., Circuit Court
Judge
Unpublished Opinion No. 2004-UP-098
Heard November 4, 2003 Filed February
17, 2004
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED
Kirby D. Shealy, III, of Columbia, for Appellant.
Louis H. Lang, of Columbia, for Respondent.
PER CURIAM: Frances S.
Smoak brought this suit against an adjoining landowner, Terry McCullough, to
settle a boundary dispute. The master-in-equity dismissed the suit, ruling
insufficient evidence existed within the record to determine Smoaks boundary.
Smoak appeals. We affirm in part, reverse in part, and remand.
FACTUAL/PROCEDURAL BACKGROUND
Smoak and McCullough are adjoining landowners.
Smoak owns two tracts of land. The first parcel, a one-hundred-acre tract,
lies to the west of the second tract, sharing a common boundary line. The second
consists of approximately 2½ acres and lies to the east of the first tract and
to the west of McCulloughs property, sharing a common east/west boundary line
with McCulloughs property. All three parcels can be traced to a common grantor,
Chester Hall, and Smoaks parcels pre-date the first conveyance of McCulloughs
tract to his predecessors in title.
[1]
Smoaks 2½-acre parcel has the following description:
All that piece, parcel or lot of land, situate [sic], in
the County of Aiken, State of South Carolina, containing two and one-half (2
½) acres, more or less, and adjoining lands, now or formerly, of Elizabeth Thornton,
on the West run of branch being the line, same commencing at run at pond dam
and extending forty (40) feet East from the swamp or edge of swamp bushes to
or within twenty (20.0) feet of spring and extending West to run of said branch
probably known as Starching Branch.
McCulloughs tract was established by the following
description:
All that certain piece, parcel or tract of land situated,
lying and being in [the] State of South Carolina, County of Aiken, containing
about two acres, more or less and bounded as follows to wit: Bounded all the
way on the west by the Betty Thornton estate; bounded on the north, east and
partly on the south by a County Public Road. This eastern and southern boundary
follows the said road going west until a point is reached about even with a
spring, then the said southern boundary cuts across and touches the spring on
the northern side then follows the run of the spring until the western boundary
of the Betty Thornton land is reached. This makes the southern boundary of
the land herein conveyed, a public County road, a spring and the run or branch
which drains the spring. The spring and spring branch are not conveyed by this
deed, but the right is hereby given and sold to Colie Hall, his heirs and assigns,
to have access and entry to the said spring and to use water from the same.
After a dispute arose about the proper boundary
between their properties, Smoak sued McCullough. In her first cause of action,
Smoak alleged a dispute existed between the parties as to the location of the
east/west boundary separating their property, and there is confusion and uncertainty
as to the boundary line. Smoak asked the court to settle the boundary dispute
and to quiet the title to her property.
In her second cause of action, Smoak alleged she
is in actual possession of the disputed property, and McCullough trespassed
to access the pond. In her third cause of action for trespass quare clausum
fregit, Smoak sought damages for an invasion of her possession of the property
by McCullough, alleging he cut and removed trees.
McCullough admitted the chains of title and descriptions
but generally denied the material allegations of the complaint.
At trial, Smoak presented the testimony of an expert
land surveyor. In reviewing the deeds in question, Smoaks expert testified
he was unable to locate the eastern boundary of Smoaks tract because the swamp
bushes were no longer in existence.
McCullough presented the testimony of his own expert
surveyor. McCulloughs expert testified that he too was unable to locate the
eastern boundary of the 2½-acre track based on Smoaks and McCulloughs deeds
because the natural boundaries mentioned in both deeds no longer existed.
McCullough also presented the testimony of M.C. Smith,
a former owner of his tract of land, who testified the purpose of conveying
the 2½-acre tract was to allow Smoaks predecessor in title to fill in the pond
and own to the edge of it. [2]
The master ruled the evidence was insufficient to establish
a boundary between the two tracts. Furthermore, the master ruled Smoak failed
to prove a trespass by McCullough, and for that reason, the court could not
provide any relief. Therefore, the master dismissed the case in full. Smoak
appeals.
STANDARD OF REVIEW
[T]he character, as legal or equitable, of an
action is determined by the complaint in its main purpose, the nature of the
issues as raised by the pleadings or the pleadings and proof, and the character
of the relief sought under them. Clark v. Hargrave, 323 S.C. 84, 86,
473 S.E.2d 474, 476 (Ct. App. 1996); Ins. Fin. Servs., Inc. v. South Carolina
Ins. Co., 271 S.C. 289, 293, 247 S.E.2d 315, 318 (1978). Furthermore, where
the plaintiffs complaint alleges some feature of equitable cognizance, such
as obliteration of the boundary line by the adjoining landowner, a cause of
action to settle a boundary dispute is in equity. Uxbridge Co. v. Poppenheim,
135 S.C. 26, 30, 133 S.E. 461, 461 (1926).
Smoaks complaint asks the master to
establish the true boundary between the properties. Smoak alleges the natural
boundaries are no longer ascertainable because McCullough obliterated the natural
markers. Additionally, Smoak asks the master to enjoin future trespasses.
McCullough does not assert an issue of
title in his answer to the complaint or at trial. Furthermore, the proof presented
by both parties at trial supports the conclusion the natural markers defining
the east/west border are no longer visible, and the true boundary cannot be
ascertained by direct reference to them. Moreover, although McCullough denies
obliterating the natural markers, he does admit he has cut some of the foliage
and filled land using a backhoe.
As we view the pleadings, the paramount question
to be decided is the placement of the boundary between the lands of the parties
based upon their existing property descriptions in an action to quiet title.
Thus, we view this as an action in equity. See Bryan v. Bryan,
285 S.C. 434, 437, 330 S.E.2d 310, 312 (Ct. App. 1985) (holding an action to
quiet title is one in equity). This conclusion is further supported by the
fact that Smoak claims McCullough obliterated the swamp grass and bushes, which
were the only markers for the boundary between their properties. See
Uxbridge Co. v. Poppenheim, 135 S.C. at 30, 133 S.E. at 461. Consequently,
this Court may take its own view of the preponderance of the evidence. Hayne
Fed. Credit Union v. Bailey, 327 S.C. 242, 247, 489 S.E.2d 472, 475 (1997)
(Our scope of review of a case heard by a master who enters a final judgment
is to determine facts in accordance with our own view of the preponderance of
the evidence.).
LAW/ANALYSIS
Smoak argues the master erred by concluding the
boundary line between the lands owned by the parties is impossible to determine.
We agree. [3]
The paramount and cardinal rule of construction
of a deed is to ascertain the intention of the grantor as expressed by him in
the deed and then to give effect to that intention if it can be done without
violating an established rule of law. Rhodes v. Black, 170 S.C. 193,
200, 170 S.E. 158, 159 (1933).
In ascertaining a boundary, it has long been established
that the court resort[s], 1st, to natural boundaries, such as rocks, mountains,
rivers, and creeks; 2nd, to artificial marks, such as corner trees and stations;
3rd, to adjacent boundaries; 4th, course and distance; and 5th, the shape of
the plat. Wash v. Holmes, 19 S.C.L. (1 Hill) 12, 15 (Ct. App. 1833).
Initially, we note, the only direct evidence of
the boundary line is the vegetation that no longer exists. There are no artificial
marks noted by either side, and the adjacent boundary is not directly helpful
because it refers to Smoaks boundary as its western boundary. However, we
conclude the key to the solution lies in reconciling the wording of the deed
descriptions with the evidence within the record.
Smoaks deed states the northern boundary of the
2½-acre tract is a pond dam, and the western boundary of the tract is a creek
branch. The deed further states the tract is bordered on the east by swamp
bushes, presumably on the eastern side of the watercourse. The deed creating
McCulloughs tract states the western boundary to his tract of land is the eastern
boundary of Smoaks tract of land. The deed further grants the right to enter
and use the spring drained by the branch but clearly excludes the spring from
the deed. [4]
Aerial photographs establish the pond came into
existence between 1951 and 1955. Furthermore, M.C. Smith, a former owner of
McCulloughs tract, testified he was familiar with all of the boundaries of
the property, even before he owned it. Additionally, he testified the purpose
of Smoaks deed description was to allow Smoaks predecessor to fill the pond
and to own to the edge of it. [5]
We conclude the pond dam existed at the time the
2½-acre tract was conveyed to Smoaks predecessor in title, but the pond had
not yet been formed.
When we view the other evidence within the record
in light of that conclusion, we hold the grantor intended to include all of
the land covered by the pond within the 2½-acre conveyance. This explains why
the grantors referred in the same deed to the run of branch as the western
edge of the 2½-acre tract, a natural marker no longer ascertainable once the
pond filled. See Ex Parte Keller, 189 S.C. 26, 36, 199 S.E. 909,
914 (1938) (holding all grants and conveyances are presumed to be made with
reference to an actual view of the premises by the parties). Additionally,
it is consistent with Smiths testimony that the 2½-acre tract was conveyed
with an eastern boundary paralleling the swamp grass or bushes to give Smoaks
predecessor the entire pond once it was formed. Finally, this is consistent
with the express language in the deed description creating McCulloughs tract
giving him use and access to the spring now lying under the pond but specifically
excluding ownership of it from his grant. [6]
Thus, we conclude the evidence, in conjunction
with the language in the deeds, indicates the 2½-acre tract was conveyed with
an eastern boundary of the swamp bushes to ensure that when the creek flooded
and became a pond, an eventuality that was contemplated but clearly had not
yet occurred, the pond would be within the 2½-acre tract. Therefore, we hold
the intent of the grantors was to grant Smoaks predecessor in title exclusive
ownership of the pond, while granting McCullough the land up to the edge of
the pond. Consequently, the boundary between the properties should properly
be marked as the edge of the pond.
Having concluded the eastern edge of the pond is
the intended boundary separating the lands of the parties, with the right to
access and use the water reserved to McCullough, we agree with the masters
conclusion that Smoak failed in her burden of proving trespass or trespass quare
clausum fregit.
CONCLUSION
For the foregoing reasons, the denial of relief
based upon trespass and trespass quare clausum fregit is AFFIRMED, that
portion of the order of the master, dismissing this suit is REVERSED,
and this matter is REMANDED with instructions to the master to set the
disputed boundary dividing the lands of the parties along the eastern edge of
the pond in accordance with this opinion. Should disagreement remain between
the parties as to the location of any part of the eastern edge of the pond or
of the disputed boundary itself after location of the pond edge, the master
is authorized to take all measures necessary to resolve the controversy, including
the taking of additional evidence or retention of a surveyor or other expert,
as needed, with the expense thereof to be borne by the parties in such amounts
as shall be determined by the master.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.
HEARN, C.J., HUFF, and HOWARD, JJ., concurring.
[1]
Smoaks chain of title begins with Chester and Jerry Hall. Chester and
Jerry Hall conveyed the property by deed to Elizabeth Thornton in 1953. Subsequently,
in 1964, Thorntons heirs conveyed the property by deed to Arthur Keels.
Thereafter, in 1976, Smoak received her deed from Keels.
McCulloughs chain of title also begins with
Chester Hall, who granted the tract to Colie Hall almost eleven years after
the grant to Smoaks predecessor in 1964. Colie Hall then conveyed the tract
to M.C. Smith in 1968. M.C. Smith conveyed the tract to Janice K. Smith by
deed dated April 14, 1992, although the description of the tract changed to
refer to a plat prepared by C. Ashley Abel on March 27, 1992. Janice K. Smith
conveyed the property to McCullough on August 18, 2000. His deed makes reference
to a plat prepared by Arthur J. Weed on August 15, 2000.
[2] M.C. Smith is the nephew of Coley Hall. Coley Hall was the son of
the common grantor, Jerry Hall. Smiths wife was Elizabeth Thorntons granddaughter.
Elizabeth Thornton was the initial grantee in Smoaks chain and was the sister
of Jerry Hall. Smith testified that he was familiar with all of the boundaries
of the property, even before he owned it. According to Smith, he was raised
less than 300 yards from the property and owned it for twenty-three or twenty-four
years.
[3]
Although we agree the master erred by dismissing the suit for lack of
evidence, we do not agree with Smoaks proposed boundary. Smoak contends
this Court should connect the northeastern and southeastern boundaries of
her property as determined by her expert surveyor, drawing a straight line
between them as the east/west boundary between the properties.
[4]
Generally, when a swamp or a stream is given in a deed as the boundary
of property, the parties will be presumed to have intended the middle of the
swamp or stream as the boundary. Wheeler v. Wheeler, 111 S.C. 87,
94, 96 S.E. 714, 715 (1918). However, where, as here, the deed specifically
excludes the watercourse, the presumption is rebutted. See Wheeler,
111 S.C. at 94-95, 96 S.E. at 716 (It may be shown that the parties intended
the edge of the swamp rather than the stream as the boundary . . . . [I]t
may be done by other competent evidence appearing either upon the face of
the deed itself, or of the plat made at the time, and proof of the actual
location of a different boundary line on the ground, and possession taken
and held to the boundary so located.).
[5]
See Richardson v. Register, 227 S.C. 81, 90, 87 S.E.2d 40,
44 (1955) (holding evidence of common repute is admissible as to the location
of a private as well as a public boundary line); see also Holden
v. Cantrell, 100 S.C. 265, 279, 84 S.E. 826, 829 (1915) (holding a boundary
may be established by reference to declarations of former owners of plaintiffs
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).
[6] The confusion in this case is due partly to the fact that the deed
creating McCulloughs tract, conveyed to his predecessor in title eleven years
after the 2½-acre tract was conveyed, does not mention the pond and refers
only to Smoaks predecessors eastern boundary as its western boundary. The
problem is exacerbated by the reference to a spring that drains a branch now
forming a part of the pond. The aerial photographs taken in 1955 show the
pond was in existence, and the line of the branch was no longer ascertainable.