January 25, 1945. The Majority Opinion follows:
The material facts are undisputed and are stated in the opinion of Mr. Chief Justice Baker with characteristic clearness and accuracy, although I do not agree with his conclusion that the lines were erroneously marked on the terrain, but think the error was in the plat which did not conform to the boundaries established on the ground. I only desire to state the following additional facts which the evidence discloses: The sale by the executors was made on the premises and the boundary lines between the various tracts were clearly visible to the prospective purchasers. The plat shows marked corners and various other boundary markings made by the surveyor. The land was not sold by the acre. The thirty-three foot strip in controversy represents an area of approximately two acres.
The Chief Justice has concluded that the true boundary line is that represented by the recent survey made in accordance with the distances shown on the Lyles plat. I have reached the conclusion that the correct boundary is that which was laid out on the ground and clearly marked by the surveyor. *Page 54
It is virtually conceded by respondents in their testimony that if the distances on the Lyles plat control, the boundary would run as contended for by appellant; although respondents contend that in that event, appellant would be barred from recovery by adverse possession, estoppel, and the statute of limitations. If the line run on the ground in making the actual survey controls, the true boundary line is that which for 32 years was acknowledged as such by the parties and would result in respondents having legal title to the thirty-three foot strip in controversy. In instructing the jury on this issue, the trial Judge charged the following requests of respondents: "I charge you that if lines have been actually surveyed and marked and capable of identification, they will, according to well-settled principles of law, control calls for courses and distances in the determination and location of a boundary line; likewise, the call for quantity or a certain number of acres must yield to marked lines, if you find that such have been made. * * * I charge you that if lines have been actually run and marked on the ground, that would be the best evidence of the true location of the survey."
Appellant has not excepted to the foregoing portion of the charge. Appellant evidently concluded, and I think properly, that this portion of the charge constituted a sound rule in the determination of boundaries. The requests were taken almost verbatim from those approved in Holden et al. v. Cantrell et al., 100 S.C. 265,84 S.E., 826. The general rule is well established in this State that in locating lands artificial marks control courses and distances.Connor v. Johnson, 59 S.C. 115, 37 S.E., 240. Established corners and marked lines represent the survey as it was actually made, while courses and distances are merely descriptions of the acts done by the surveyors. Plats are made up from loose memoranda made in the field.
In Douglass v. Fernandis, 2 Bailey 78, the Court said: "Course and distance are less to be confided in than any *Page 55 other evidence of boundary; and this, because they are seldom or never entirely relied upon, and are of all others the most subject to misconception and error, and only serve as a guide in the absence of all other." In Sturgeon v. Floyd, 3 Rich., 80, the Court stated the rule as follows: "Mere distance is never regarded when it conflicts with either the actual marks made by the surveyor or the well-ascertained marks called for on the plat. * * * The trees that the surveyor marked; the rocks that he set up; the fixed and permanent objects which he calls for, are more certain indications of intention than distances or even courses."
Where, as was done in this case, a deed describes the land as a certain tract or parcel as shown on a certain plat, the plat becomes a part of the deed. "In locating land upon the ground from the calls and descriptions in the map, plat * * *, the same primary rules apply as exist in the locating of calls and descriptions in a deed containing no such reference; that is, the various calls are given the same order of preference. Thus, where the lines have in fact been located and designated by monuments and there is a discrepancy between the calls for these monuments and courses and distances shown by a plan referred to in the conveyance, the normal rule as to the controlling effect of calls for monuments will be followed." 8 Am. Jur., 791.
In the case of Lee v. Rowe et al., 172 N.C. 846,90 S.E., 222, the syllabus is as follows: "Where the commissioners in allotting the shares of parties disputing a boundary line actually went upon the land and put up stakes as marking the lines of each share, such actual allotment would control their written description, if by mistake it did not conform to the actual allotment."
This conclusion would result in appellant acquiring two acres less, and the respondents two acres more, than the acreage represented on the plat; but as pointed out in Holden v. Cantrell, supra, under the rules for *Page 56 determining disputed boundaries the quantity of land named in the deed is "ordinarily one of the lowest in the scale of importance." [100 S.C. 265, 84 S.E., 828]
Of course, the rules above referred to are not inflexible and are subject to modifications, dependent upon the peculiar facts of particular cases. Holden v. Cantrell,supra, and Connor v. Johnson, supra. The vital question is the intent of the grantor at the time the deed is executed. But the rules for locating boundaries heretofore adverted to represent those methods of reasoning which experience has taught are best calculated to effectuate such intention. In this case, no good reason appears why we should not follow these general rules. I am satisfied that the executors intended to convey up to the boundaries marked on the ground and no doubt all the purchasers thought, as the appellant and the respondents thought, that the deeds conformed to these marked boundaries.
The foregoing views do not conflict with the case of Ouztsv. McKnight, 114 S.C. 303, 103 S.E., 561. There it was conceded that the line run on the ground did not represent the mutual intention of the parties. It was undisputed that both parties intended an equal division of a tract containing 1,000 acres and in undertaking to accomplish this purpose, the surveyor made a mistake in running the line on the ground, giving one party 425 acres and the other 575 acres. Here I think the mistake was made by the surveyor in fixing the distances shown on the plat and the intention was that the deeds and plat should conform to the marked boundaries on the ground. The principal question in Ouzts v. McKnight was whether defendant could acquire title by adverse possession. It is not necessary for respondents in the instant case to resort to the claim of title by adverse possession.
In addition to the foregoing, the undisputed facts raise a conclusive presumption that the line acquiesced in by the parties for a period of thirty-two years *Page 57 is the true boundary line. The following statement from 8 Am. Jur., page 802, is, I think, sound and applicable: "It is well established that 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 — usually the time prescribed by the statute of limitations — they are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one. In other words, such recognition of, and acquiescence in, a line as the true boundary line, if continued for a sufficient length of time, will afford a conclusive presumption that the line thus acquiesced in is the true boundary line."
I, therefore, conclude that under the undisputed evidence, respondents acquired legal title to the disputed area of approximately two acres and their motion for directed verdict should have been granted. Under these circumstances, it was not necessary for respondents to show title by adverse possession or claim under color of title and the charge made by the trial Judge in reference thereto could not have been prejudicial to appellant.
I think the judgment should be affirmed.
MESSRS. ASSOCIATE JUSTICES STUKES, FISHBURNE and TAYLOR concur.