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 1970’s, Bill Hadley, an adjoining landowner, dug a canal separating the property on which Gould’s 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 Gould’s 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.”  Whetsell’s 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, Williams’s 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 attorney’s 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 court’s 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 party’s 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 Gould’s 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 canal’s 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 Gould’s 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 Gould’s acquiescence defense. 

Accordingly, because this conclusion in the trial court’s 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 Whetsell’s 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 Gatch’s property] where the canal is.” 

^[6]   Williams concedes attorney’s 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.