THE STATE OF SOUTH CAROLINA
In The Court of Appeals
James W. Williams,
Respondent,
v.
Otis David Gould,
Appellant.
Appeal From Colleton County
Luke N. Brown, Jr., Circuit Court Judge
Unpublished Opinion No. 03-UP-153
Heard December 10, 2002 Filed February
20, 2003
REVERSED AND REMANDED
Deborah R.J. Shupe, of Columbia; Robert J. Harte, of Aiken; for appellant.
Ronnie L. Crosby, of Hampton; for respondent.
PER CURIAM: In this boundary line
dispute, Otis Gould appeals the trial courts order finding he trespassed on
property owned by James Williams, arguing the record evidence supports his acquiescence
of title defense. We reverse and remand for a new trial.
FACTS/PROCEDURAL HISTORY
In June 1961, Raymond M. Gatch conveyed a parcel of land fronting
the Edisto River in Colleton County to G.M. Gould. Sometime in 1962 or 1963,
Gould built a small cabin on the property. In the early 1970s, Bill Hadley,
an adjoining landowner, dug a canal separating the property on which Goulds
house sat from his own. The canal stretched from the river to within 200
feet of state road S-15-30, the western border of the Hadley property. A
few years later Gould gifted the back (non-waterfront) part of his lot to
Dolphus and Betty Bridges. In July 1990, Gould conveyed the waterfront portion
to his son, Otis Gould. The transfer deed clearly describes the waterfront
area as being 57.5 feet wide.
In November 1993, James Williams bought the former Hadley property
from First National Bank. Prior to purchasing the land, Williams hired Gene
Whetsell, a registered land surveyor familiar with the area, to subdivide
the parcel into separate tracts. Whetsell prepared a plat designating the
land as follows: Tract A (1.72 acres), Tract B (11.15 acres), and Tract
C (2.32 acres). The plat depicts Tract C bounded on the west by Tract
B, on the south by a canal, on the east by the Edisto River, and on the
north by the canal and property of Otis Gould and Dolphus Bridges.
[1]
The following year Williams notified Gould that he believed several
of Goulds structures were lying over his property line. Although Gould subsequently
retained an attorney, the parties never resolved the matter.
In 1997 Williams again hired Whetsell to further
divide Tract C into three relatively uniform lots facing the Edisto River.
These lots were also designated A, B, and C. Whetsells plat indicates
Lot A is the northern-most section of Tract C, and thus lies directly
across from the property owned by Gould and Bridges.
In January 1999, Williams filed a complaint for trespass, alleging
Gould had erected structures and placed sewerage lines across the common
property boundary. Gould answered and, in addition to a general denial,
asserted the complete defense of acquiescence of title. Gould contended both
his and Williams ancestors in title acquiesced to the northern edge of the
aforesaid canal as the boundary line between the two properties.
Following a bench trial on October 2, 2000, the trial court issued
an order adopting the boundary line established by Gene Whetsell, Williamss
expert, as the true dividing line between the properties. As a result, the
court ordered the parties to split the costs of a new survey and plat reflecting
this boundary. The trial court also found Gould had committed a trespass
and awarded $2,500 in attorneys fees to Williams. This appeal followed.
LAW/ANALYSIS
Standard of Review
If a boundary dispute encompasses an issue of title, the trial thereon
is an action at law. Knox v. Bogan, 322 S.C. 64, 472 S.E.2d 43 (Ct.
App. 1996). In actions at law tried without a jury, the findings of fact
of the judge will not be disturbed on appeal unless found to be without evidence
which reasonably supports them. Id. at 66, 472 S.E.2d at 45; see
Townes Assocs. Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d
773 (1976). Thus, the trial courts factual findings have the same force
and effect as a jury verdict unless the court committed some error of law
leading it to an erroneous conclusion or unless the evidence is reasonably
susceptible only of a conclusion opposite of [that] reached by the court.
Knox, 322 S.C. at 71, 472 S.E.2d at 47-48.
Discussion
It is well settled that a boundary line may be established by mutual
recognition of and acquiescence in a particular line. Croft v. Sanders,
283 S.C. 507, 509, 323 S.E.2d 791, 792 (Ct. App. 1984); see Kirkland
v. Gross, 286 S.C. 193, 197, 332 S.E.2d 546, 548-49 (Ct. App. 1985) (A
disputed boundary line can be established by acquiescence of the parties.).
Thus, if adjoining landowners occupy their respective premises up to a certain
line which they mutually recognize and acquiesce in for a long period of time
. . . they are precluded from claiming that the boundary line thus recognized
and acquiesced in is not the true one. Knox, 322 S.C. at 71-72,
472 S.E.2d at 48 (quoting Klapman v. Hook, 206 S.C. 51, 57, 32 S.E.2d
882, 884 (1945)); see Gardner v. Mozingo, 293 S.C. 23, 26, 358
S.E.2d 390, 392 (1987). In other words, if acquiescence in a boundary is
shown for a sufficient period of time, a conclusive presumption [arises]
that the line thus acquiesced in is the true boundary line. Knox,
322 S.C. at 71-72, 472 S.E.2d at 48 (quoting Klapman, 206 S.C. at 57,
32 S.E.2d at 884).
The party claiming a boundary by acquiescence bears the burden of
proving it by a preponderance of the evidence.
[2] See 11 C.J.S. Boundaries §§ 104, 116 (1938);
cf. Croft, 283 S.C. at 509, 323 S.E.2d at 792. Acquiescence
itself is a question of fact determined by the intent of the parties. Kirkland,
286 S.C. at 198, 332 S.E.2d at 549. As such, it may be proved by any evidence
which would satisfy a person that the purported boundary had been accepted
by both of the adjoining landowners as a dividing line between them. 11
C.J.S. Boundaries at § 109. Proof may be made by either direct or
circumstantial evidence. See id. at § 116.
An express agreement is not required to establish a boundary by
acquiescence. Knox, 322 S.C. at 72, 472 S.E.2d at 48. To the contrary,
agreement may be inferred from or implied by the conduct of the parties.
Id. The underlying rationale is based on the assumption that
owners never disputing a boundary for a long period of time consented to it
. . . . 11 C.J.S. Boundaries at § 104. Thus, the [f]ailure to object
to an encroachment with knowledge that the owner thereof claims to that line
may amount to acquiescence establishing the line as a boundary . . . . Id.
at § 79.
Precisely what
constitutes recognition and acquiescence depends upon the particular facts
of each case. Croft, 283 S.C. at 509, 323 S.E.2d at 792. In determining
whether the parties have acquiesced to a particular boundary, therefore, it
is necessary to review the acts or declarations of the parties and the
inferences or presumptions [arising] from their conduct. Id.
at 509-10, 323 S.E.2d at 793 (citation omitted). Recognition or acquiescence
may be shown by evidence of a partys words, conduct, or even his or her
silence. 12 Am. Jur. 2d Boundaries § 85 (1997); see Croft,
283 S.C. at 510, 323 S.E.2d at 793. Examples of conduct indicating assent
to a boundary include the length of time and manner in which the adjoining
property was used; the building of monuments, fences, or other barriers; the
planting of trees, crops, etc.; the harvesting of timber, and the erection
of houses, buildings, or other structures. See 11 C.J.S. Boundaries
at § 104. Indeed, in this regard, all a party is required to show is that
the activities of the adjoining landowner are such that they provided notice.
12 Am. Jur. 2d Boundaries at § 85.
When a boundary line is acquiesced in by adjoining landowners, such
acquiescence is binding on the parties and their successors in interest.
12 Am. Jur. 2d Boundaries at § 83; see 11 C.J.S. Boundaries
at § 84 (Acquiescence in a boundary line is binding on the parties and those
claiming under them [their privies], but only the actual parties and their
privies are bound.).
In the instant case, the record clearly reflects that either Gould
or his father was in possession of the disputed property up to the northern
edge of the canal for a period of almost forty years. Over the years the
Goulds built a fish cleaning table and a septic tank on the property, in addition
to a permanent river wall in front that extends to the edge of the canal.
Moreover, according to expert testimony in a videotape submitted by Williams,
the Goulds house is situated seventeen feet over the original
property line. Despite these obvious and flagrant encroachments, the record
contains no evidence Williams predecessors in interest ever complained.
With one exception, the plats entered into evidence were prepared
by Williams own expert, Gene Whetsell, in 1968, 1976 (revised in 1989), 1982
(revised in 1993), and 1997. [3] During his testimony
Whetsell admitted that none of the plats reflects an encroachment onto Williams
property. As to the 1976 plat referencing the canal, Whetsell agreed it showed
the canals northern border as the boundary to the Gould property.
Furthermore, the testimony of all but one
[4] nearby landowner revealed a common understanding that the canal
was the dividing line between the Gould and Williams properties. Otis Gould
expressly stated: Far as I know, I own between the canal over to between
mine and Ricky Mays [property]. Mays, who owns the waterfront lot adjacent
to Gould on the other side, testified that they all assumed that it was the
canal was the border. Dolphus Bridges, who owns the lot directly behind
Goulds along the canal, related that he always assumed that [the canal]
was the property line.
Lastly, William Raymond Buddy Gatch, whose father originally deeded
the land to G.M. Gould, explained that he had owned the riverfront lot next
to Ricky Mays since 1966, when he received it from his father. Regarding
the canal, Gatch specifically stated that before Bill Hadley bought the (now)
Williams property, he and a surveying crew started at the highway and bushwhacked
their way to the river, coming out to a point that was fairly close to where
the canal is now. Gatch further testified that he and a group of neighbors
were standing there when Hadley asked if they were satisfied with that
with that line, and everybody that was there said yes, that was copasetic
with everybody. According to Gatch, that was the line Hadley later used
as a reference line to dig the canal.
[5]
Despite this
abundant testimonial and documentary support, the trial court found Gould
failed to present any evidence that established that any of the predecessors
in title to either tract ever agreed or acquiesced that the canal was the
boundary, and held, therefore, that Gould failed to meet his burden on this
issue. This was clearly an error of law. It is readily apparent from the
trial transcript, the final order, and Williams brief that the trial court
failed to properly apply the law of acquiescence of title to the facts of
this case. Recognition and acquiescence does not depend upon an express agreement;
to the contrary, it may be inferred from all the relevant facts and circumstances
of each case. Here, given the evidence cited above, it is obvious the trial
court overlooked the law in reaching its conclusion that no evidence
supported Goulds acquiescence defense.
Accordingly, because this conclusion in the trial courts order
was based on an error of law, the decision in favor of Williams is reversed.
The case, therefore, is remanded to the trial court for reconsideration of
the acquiescence of title question in light of this opinion. [6]
REVERSED and REMANDED.
GOOLSBY, HUFF, and SHULER, JJ., concur.
[1] William R. Buddy
Gatch, the son of Raymond Gatch, owns the property on the other side of the
canal from Tracts A and B.
[2] Some authorities,
however, have held that proof of acquiescence must be establishing by clear
and convincing evidence.
[3] The 1976 plat was
prepared by surveyor Joe L. Grant based on data from Whetsells 1968 plat.
[4] The only evidence offered by Williams in opposition
was the somewhat ambiguous and unobjected-to hearsay testimony of Billy Mays,
who owns a lot directly behind his brother Ricky.
[5] Gatch who also owns
the land behind Dolphus Bridges stretching all the way to the highway, thus
abutting the canal, which runs to within 200 feet of that road, additionally
testified he always assumed that the canal followed his property line all
the way up from the river, and that his own southern property line was close
to the canal, i.e., within four to six feet. Gatch noted that on the 1968
Whetsell plat, which was partly paid for by him, Whetsell ran the southern
line [of Gatchs property] where the canal is.
[6] Williams concedes
attorneys fees are not recoverable in an action for trespass. See
Giles v. Parker, 304 S.C. 69, 74, 403 S.E.2d 130, 133 (Ct. App. 1991).
Accordingly, the trial court should refrain from making such an award on remand.