THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Frances S. Smoak, as Personal Representative of the Estate of Curtis P. Smoak, and Frances S. Smoak, individually,        Appellant,

v.

Terry McCullough,        Respondent.

Appeal From Aiken County
Robert A. Smoak, Jr., Circuit Court Judge

Unpublished Opinion No. 2004-UP-098
Heard November 4, 2003 � Filed February 17, 2004

AFFIRMED IN PART, REVERSED IN PART, and
REMANDED

Kirby D. Shealy, III, of Columbia, for Appellant.

Louis H. Lang, of Columbia, for Respondent.

PER CURIAM:  Frances S. Smoak brought this suit against an adjoining landowner, Terry McCullough, to settle a boundary dispute.� The master-in-equity dismissed the suit, ruling insufficient evidence existed within the record to determine Smoak�s boundary.� Smoak appeals.� We affirm in part, reverse in part, and remand.

FACTUAL/PROCEDURAL BACKGROUND

Smoak and McCullough are adjoining landowners.� Smoak owns two tracts of land.� The first parcel, a one-hundred-acre tract, lies to the west of the second tract, sharing a common boundary line.� The second consists of approximately 2� acres and lies to the east of the first tract and to the west of McCullough�s property, sharing a common east/west boundary line with McCullough�s property.� All three parcels can be traced to a common grantor, Chester Hall, and Smoak�s parcels pre-date the first conveyance of McCullough�s tract to his predecessors in title. [1] �

Smoak�s 2�-acre parcel has the following description:

All that piece, parcel or lot of land, situate [sic], in the County of Aiken, State of South Carolina, containing two and one-half (2 �) acres, more or less, and adjoining lands, now or formerly, of Elizabeth Thornton, on the West run of branch being the line, same commencing at run at pond dam and extending forty (40) feet East from the swamp or edge of swamp bushes to or within twenty (20.0) feet of spring and extending West to run of said branch probably known as Starching Branch.

McCullough�s tract was established by the following description:

All that certain piece, parcel or tract of land situated, lying and being in [the] State of South Carolina, County of Aiken, containing about two acres, more or less and bounded as follows to wit:� Bounded all the way on the west by the Betty Thornton estate; bounded on the north, east and partly on the south by a County Public Road.� This eastern and southern boundary follows the said road going west until a point is reached about even with a spring, then the said southern boundary cuts across and touches the spring on the northern side then follows the run of the spring until the western boundary of the Betty Thornton land is reached.� This makes the southern boundary of the land herein conveyed, a public County road, a spring and the run or branch which drains the spring.� The spring and spring branch are not conveyed by this deed, but the right is hereby given and sold to Colie Hall, his heirs and assigns, to have access and entry to the said spring and to use water from the same.

After a dispute arose about the proper boundary between their properties, Smoak sued McCullough.� In her first cause of action, Smoak alleged a dispute existed between the parties as to the location of the east/west boundary separating their property, and there is confusion and uncertainty as to the boundary line.� Smoak asked the court to settle the boundary dispute and to quiet the title to her property.

In her second cause of action, Smoak alleged she is in actual possession of the disputed property, and McCullough trespassed to access the pond.� In her third cause of action for trespass quare clausum fregit, Smoak sought damages for an invasion of her possession of the property by McCullough, alleging he cut and removed trees.�

McCullough admitted the chains of title and descriptions but generally denied the material allegations of the complaint.���

At trial, Smoak presented the testimony of an expert land surveyor.� In reviewing the deeds in question, Smoak�s expert testified he was unable to locate the eastern boundary of Smoak�s tract because the swamp bushes were no longer in existence.�

McCullough presented the testimony of his own expert surveyor.� McCullough�s expert testified that he too was unable to locate the eastern boundary of the 2�-acre track based on Smoak�s and McCullough�s deeds because the natural boundaries mentioned in both deeds no longer existed.

McCullough also presented the testimony of M.C. Smith, a former owner of his tract of land, who testified the purpose of conveying the 2�-acre tract was to allow Smoak�s predecessor in title to fill in the pond and own to the edge of it. [2] �

The master ruled the evidence was insufficient to establish a boundary between the two tracts.� Furthermore, the master ruled Smoak failed to prove a trespass by McCullough, and for that reason, the court could not provide any relief.� Therefore, the master dismissed the case in full. Smoak appeals.

STANDARD OF REVIEW

�[T]he character, as legal or equitable, of an action is determined by the complaint in its main purpose, the nature of the issues as raised by the pleadings or the pleadings and proof, and the character of the relief sought under them.� Clark v. Hargrave, 323 S.C. 84, 86, 473 S.E.2d 474, 476 (Ct. App. 1996); Ins. Fin. Servs., Inc. v. South Carolina Ins. Co., 271 S.C. 289, 293, 247 S.E.2d 315, 318 (1978).� Furthermore, where the plaintiff�s complaint alleges some feature of equitable cognizance, such as obliteration of the boundary line by the adjoining landowner, a cause of action to settle a boundary dispute is in equity. Uxbridge Co. v. Poppenheim, 135 S.C. 26, 30, 133 S.E. 461, 461 (1926).��

Smoak�s complaint asks the master to establish the true boundary between the properties.� Smoak alleges the natural boundaries are no longer ascertainable because McCullough obliterated the natural markers.� Additionally, Smoak asks the master to enjoin future trespasses.

McCullough does not assert an issue of title in his answer to the complaint or at trial.� Furthermore, the proof presented by both parties at trial supports the conclusion the natural markers defining the east/west border are no longer visible, and the true boundary cannot be ascertained by direct reference to them.� Moreover, although McCullough denies obliterating the natural markers, he does admit he has cut some of the foliage and filled land using a backhoe.�

As we view the pleadings, the paramount question to be decided is the placement of the boundary between the lands of the parties based upon their existing property descriptions in an action to quiet title.� Thus, we view this as an action in equity.� See Bryan v. Bryan, 285 S.C. 434, 437, 330 S.E.2d 310, 312 (Ct. App. 1985) (holding an action to quiet title is one in equity).� This conclusion is further supported by the fact that Smoak claims McCullough obliterated the swamp grass and bushes, which were the only markers for the boundary between their properties. See Uxbridge Co. v. Poppenheim, 135 S.C. at 30, 133 S.E. at 461. �Consequently, this Court may take its own view of the preponderance of the evidence.�� Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 247, 489 S.E.2d 472, 475 (1997) (�Our scope of review of a case heard by a master who enters a final judgment is to determine facts in accordance with our own view of the preponderance of the evidence.�).

LAW/ANALYSIS

Smoak argues the master erred by concluding the boundary line between the lands owned by the parties is impossible to determine.� We agree. [3]

�The paramount and cardinal rule of construction of a deed is to ascertain the intention of the grantor as expressed by him in the deed and then to give effect to that intention if it can be done without violating an established rule of law.�� Rhodes v. Black, 170 S.C. 193, 200, 170 S.E. 158, 159 (1933).�

In ascertaining a boundary, it has long been established that the court �resort[s], 1st, to natural boundaries, such as rocks, mountains, rivers, and creeks; 2nd, to artificial marks, such as corner trees and stations; 3rd, to adjacent boundaries; 4th, course and distance; and 5th, the shape of the plat.� Wash v. Holmes, 19 S.C.L. (1 Hill) 12, 15 (Ct. App. 1833).�

Initially, we note, the only direct evidence of the boundary line is the vegetation that no longer exists.� There are no artificial marks noted by either side, and the adjacent boundary is not directly helpful because it refers to Smoak�s boundary as its western boundary.� However, we conclude the key to the solution lies in reconciling the wording of the deed descriptions with the evidence within the record.

Smoak�s deed states the northern boundary of the 2�-acre tract is a pond dam, and the western boundary of the tract is a creek branch.� The deed further states the tract is bordered on the east by swamp bushes, presumably on the eastern side of the watercourse.� The deed creating McCullough�s tract states the western boundary to his tract of land is the eastern boundary of Smoak�s tract of land.� The deed further grants the right to enter and use the spring drained by the branch but clearly excludes the spring from the deed. [4] �

Aerial photographs establish the pond came into existence between 1951 and 1955.� Furthermore, M.C. Smith, a former owner of McCullough�s tract, testified he was familiar with all of the boundaries of the property, even before he owned it.� Additionally, he testified the purpose of Smoak�s deed description was to allow Smoak�s predecessor to fill the pond and to own to the edge of it. [5] �

We conclude the pond dam existed at the time the 2�-acre tract was conveyed to Smoak�s predecessor in title, but the pond had not yet been formed.�

When we view the other evidence within the record in light of that conclusion, we hold the grantor intended to include all of the land covered by the pond within the 2�-acre conveyance.� This explains why the grantors referred in the same deed to the �run of branch� as the western edge of the 2�-acre tract, a natural marker no longer ascertainable once the pond filled.� See Ex Parte Keller, 189 S.C. 26, 36, 199 S.E. 909, 914 (1938) (holding all grants and conveyances are presumed to be made with reference to an actual view of the premises by the parties).� �Additionally, it is consistent with Smith�s testimony that the 2�-acre tract was conveyed with an eastern boundary paralleling the swamp grass or bushes to give Smoak�s predecessor the entire pond once it was formed.� Finally, this is consistent with the express language in the deed description creating McCullough�s tract giving him use and access to the spring now lying under the pond but specifically excluding ownership of it from his grant. [6]

Thus, we conclude the evidence, in conjunction with the language in the deeds, indicates the 2�-acre tract was conveyed with an eastern boundary of the swamp bushes to ensure that when the creek flooded and became a pond, an eventuality that was contemplated but clearly had not yet occurred, the pond would be within the 2�-acre tract.� Therefore, we hold the intent of the grantors was to grant Smoak�s predecessor in title exclusive ownership of the pond, while granting McCullough the land up to the edge of the pond.� Consequently, the boundary between the properties should properly be marked as the edge of the pond.�

Having concluded the eastern edge of the pond is the intended boundary separating the lands of the parties, with the right to access and use the water reserved to McCullough, we agree with the master�s conclusion that Smoak failed in her burden of proving trespass or trespass quare clausum fregit.

CONCLUSION

For the foregoing reasons, the denial of relief based upon trespass and trespass quare clausum fregit is AFFIRMED, that portion of the order of the master, dismissing this suit is REVERSED, and this matter is REMANDED with instructions to the master to set the disputed boundary dividing the lands of the parties along the eastern edge of the pond in accordance with this opinion.� Should disagreement remain between the parties as to the location of any part of the eastern edge of the pond or of the disputed boundary itself after location of the pond edge, the master is authorized to take all measures necessary to resolve the controversy, including the taking of additional evidence or retention of a surveyor or other expert, as needed, with the expense thereof to be borne by the parties in such amounts as shall be determined by the master.

AFFIRMED IN PART, REVERSED IN PART, and

REMANDED.

HEARN, C.J., HUFF, and HOWARD, JJ., concurring.