Summary
finding the mistaken belief rule does not apply in a dispute over an entire tract of land, rather it applies in a boundary line dispute
Summary of this case from Taylor v. Heirs of TaylorOpinion
24141
Submitted July 27, 1994
Decided September 6, 1994
Appeal From Circuit Court, Beaufort County Thomas Kemmerlin, Jr., Master in Equity.
James B. Richardson, Jr., of Svalina, Richardson Smith, Columbia, for petitioner.
Gary D. Brown, Ridgeland, and C. Scott Graber, of Graber and Baldwin, Beaufort, for respondent.
Petitioner asks this Court for writ of certiorari to review the Court of Appeal's decision in Perry v. Heirs at Law Distributees of Gadsden, ___ S.C. ___, 437 S.E.2d 174 (Ct. App. 1993). We grant the petition, dispense with further briefing, and affirm as modified.
In its opinion, the Court of Appeals found that the record does not support petitioner's claim of title under adverse possession because there was no evidence of hostile possession, citing Lusk v. Callaham, 287 S.C. 459, 339 S.E.2d 156 (Ct. App. 1986). It based this on the fact that petitioner had repeatedly assured the heirs that he intended to share the property with them and their interest would be preserved and protected. This conclusion was correct as there is ample evidence in the record to support this finding by the Court of Appeals.
However, as an alternative ground, the Court of Appeals held that petitioner's adverse possession claim also failed because, according to petitioner's own testimony, he thought he owned the 74 acre tract. Under Lusk, supra, the Court of Appeals reasoned that a claim for adverse possession does not lie under a mistaken belief that the property is one's own and with no intent to claim against the property's true owner. This application of Lusk was incorrect.
In Lusk, which involved a boundary line dispute, the Court of Appeals noted that in South Carolina, unlike in most jurisdictions, possession under a mistaken belief that property is one's own and with no intent to claim against the property's true owner cannot constitute hostile possession. Citing Brown v. Clemens, 287 S.C. 328, 338 S.E.2d 156 (1985). However, in Wigfall v. Fobbs, 295 S.C. 59, 367 S.E.2d 156 (1988), this Court held that this rule is applicable only to cases involving boundary disputes between adjoining landowners. Here, this case involves a dispute over an entire tract of land; therefore, the mistaken belief rule set forth in Lusk is inapplicable.
Accordingly, we affirm on the ground that there is no evidence of hostile possession.
Affirmed as modified.