163 S.E. 795; 2 Brevard (4 S.C.L.) 35. As to doctrine of estoppel being applicable here: 228 S.C. 378, 90 S.E.2d 364; 206 S.C. 51, 32 S.E.2d 882. As to rule governing the location of a "high water mark": 153 S.C. 179, 150 S.E. 683. As to burden of proof being shifted to Respondent: 11 C.J.S. 558; 114 S.C. 32, 102 S.E. 784.,W.A. RUSH, J.P. RUSH, SR., TURNER RUSH, MRS. S.B. THOMPSON, J.M. THOMPSON, JAMES MCFADDEN AND D.N. BAKER, APPELLANTS, v. TROY THIGPEN, RESPONDENT." />

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RUSH ET AL. v. THIGPEN

May 15, 1957

W.A. RUSH, J.P. RUSH, SR., TURNER RUSH, MRS. S.B. THOMPSON, J.M. THOMPSON, JAMES MCFADDEN AND D.N. BAKER, APPELLANTS,
v.
TROY THIGPEN, RESPONDENT.



The opinion of the court was delivered by: Legge, Justice.

May 15, 1957.

Appellants, owners of separate tracts of land, located for the most part in Florence County, surrounding a tract of about three hundred acres owned by the respondent, brought this action against him for the purpose of determining the boundaries between his property and theirs. The cause was tried before the Honorable G. Badger Baker, Judge of the Twelfth Circuit, without a jury; and from his decree of June 20, 1956, comes this appeal.

The allegations of the complaint are, in substance, as follows:

(1) That the defendant claims title to approximately three hundred acres of land located for the most part in Florence County, known as the Hudson Mill Tract, consisting principally of an old mill pond, and embracing only a small area of upland; and that the plaintiffs W.A. Rush, J.P. Rush, Sr., Turner Rush, Mrs. S.B. Thompson, J.M. Thompson, James McFadden and D.N. Baker own in fee simple and are in possession of tracts of land in the said county that practically surround the said mill pond tract claimed by the defendant.

(2) That the plaintiffs and the defendant respectively claim title to their properties under deeds and other instruments in writing; and that a controversy has arisen between them with respect to the location of the boundary lines between the plaintiffs' lands and the defendant's mill pond tract, the proper location of said boundary lines depending upon the construction and validity of the instruments constituting the chains of title under which the respective parties claim.

(3) That because the boundary lines between the lands of the plaintiffs and the defendant's property are an entirety and cannot be determined piecemeal by separate suits the plaintiffs have a community of interest which will be affected by the judgment, and are made parties under the provisions of Section 10-2008 of the 1952 Code.

(4) That efforts to reach an agreement with the defendant to establish the boundary lines by survey without litigation have failed.

(5) That the defendant has entered upon the lands of some of the plaintiffs and has cut and removed timber therefrom, and threatens and intends to cut and remove timber from all the lands of the plaintiffs involved in this action.

(6) That the plaintiffs are without adequate remedy at law for the trespasses of the defendant, committed and threatened.

(7) That some of the logs cut from the property of one or more of the plaintiffs have not yet been disposed of by the defendant, and he should be enjoined from disposing of them pending the determination of this action.

The prayer is for a decree "adjudging and declaring the rights of the plaintiffs and the defendant respecting the land and properties involved in this action"; enjoining the defendant from trespassing on and cutting and removing timber from the lands of the plaintiffs and from disposing of the logs already cut therefrom; and requiring the defendant to account for the value of any of the plaintiffs' logs already disposed of by him.

The answer, in addition to a general denial, alleges that the defendant is the owner in fee simple and in possession of the Hudson Mill Pond Tract by virtue of a deed from Frankie Floyd recorded in Florence County in Deed Book 121 at page 277, and that his boundary line is the high water mark of Hudson Mill Pond.

The substantial issue at the trial was whether the correct boundary between respondent's property and the properties of appellants was as shown on a plat made by E.J. Smith, Surveyor, in October, 1925, upon which the appellants relied, or as shown on a plat made for the respondent by Ebert Floyd, Surveyor, in January 1954. The trial judge held that the boundary as shown on the Floyd plat was the true boundary line.

The exceptions assign error on the part of the trial judge:

(1) In refusing to grant an order of survey;

(2) "In holding that appellants must recover on the strength of their title, when no issue of title was involved";

(3) In not holding that the respondent was bound by the Smith plat; and

(4) In accepting the boundary as shown on the Floyd plat.

These questions will be considered in the order stated.

On or about March 18, 1954, respondent's counsel served notice upon counsel for the appellants that they would apply before Judge Baker on April 2, 1954, for an order of survey in accordance with Circuit Court Rule 36. By letter of March 29, 1954, appellants' counsel advised counsel for the respondent that they would consent to such an order of survey; but no order was taken. When the case was called for trial about two weeks prior to July 1, 1955, appellants' counsel stated they understood that the hearing was to be on the motion for an order of survey; respondent's counsel stated that they were ready to go to trial on the merits and that the motion for survey was withdrawn. Appellants' counsel then contended that the motion for survey could not be withdrawn after they had given their consent for such order. The court rejected this contention and directed that the case proceed to trial; whereupon appellants' counsel requested a continuance for the purpose of enabling the appellants to ...


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