Germany v. Kelley , 110 S.C. 518 ( 1918 )

August 2, 1918. The opinion of the Court was delivered by This is an action by the respondent to enjoin the defendant, an adjoining landowner, from trespassing on his property. The defendant set up title in himself under a deed from one Harman. Under defendant's chain of title the deeds refer to the previous conveyances as the same land conveyed to the grantor. In that chain of title there was a plat made by Surveyor Boykin. It is not disputed that the Boykin plat does not include the land in dispute. The defendant pleaded the 10-year statute, and also the presumption of 20 years' possession. The trial Judge directed a verdict for the plaintiff, and from the judgment entered on this verdict, the defendant appealed.

1. The plaintiff had, by his deeds and plats, made outprima facie case in himself. So for as the title derived From Harman is concerned, the defendant is bound by the Boykin plat, and the evidence is undisputed that the Boykin plat does not include the land in dispute.

2. The defendant must, therefore, rely for title upon his adverse possession. For this possession defendant relies upon a few isolated acts of cutting trees and hauling straw.Porter v. Kennedy, 1 McMul. 357:

"Until the trespass had been committed, for which this action was brought, the plaintiff's title was not put in jeopardy, and he was not bound to sue, and of course, as long as he had no cause of action, defendant had no foundation of title."

There was no evidence that these trespasses had continued for a sufficient time to ripen title in the defendant, and there was no error in directing a verdict for the plaintiff.

3. The statement in the judgment that the jury found a verdict, instead of saying that the Court has directed a verdict, is not reversible error. The case has been considered on a directed verdict.

4. While there was conflict of testimony, the conflict did not affect the cardinal questions in the case.

5. The last question to be considered is: Was it error not to allow the defendant to explain certain testimony given in reply? The case does not show that testimony would have affected the real issue.

This case has been prepared in utter violation of the rule. It also shows that the appellant is not responsible for the case as filed. If appellant had also appealed from the order settling the case, a different question would have arisen. It is sufficient to order that while the judgment appealed from is affirmed, it is ordered that the appellant have judgment against the respondent for the disbursements in printing the case.