
    
      Martha O. Kimbrall vs. D. J. Walker and A. J. Rambo.
    
    In ease for overflowing land, the action may be maintained on proof of plaintiff’s possession — such possession being presumptive evidence of title.
    A. G. entered, as purchaser, under a bond to make title, on demand, after he (A. G.) should procure a plat of the premises from a suryeyor, and held possession seventeen years, when he died. On his death his heirs continued to occupy the land fifteen years more, when they sold it: — Held,
    That the possession of A. G. and h'is heirs, was sufficient to raise the presumption of a grant.
    That, to raise such presumption, the possession of those holding, as purchasers, under the heirs of A. G., could, if necessary, be tacked to the possession of A. G. and his heirs.
    That the possession of A. G. and his heirs was adverso, and sufficient to give title under the statute of limitations, both as against A. G.’s vendor, and a third person claiming by paramount title.
    where one enters under a written contract to purchase, and the execution of a conveyance is only postponed that the land may be survoyed and a plat made, he may be regarded as holding adversely from the time of his entry.
    
      Before Munro, J., at Edgefield, Spring Term, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action on the case for overflowing the plaintiff's land.
    “ The defendants are the owners of a saw mill, called the Melton Mills, situate on Horse Creek, and the injury complained of, as the plaintiff alleges, has been occasioned by the defendants having elevated their mill dam, and thereby raised the water in the mill pond to such a height as to overflow a considerable portion of low land lying contiguous thereto.
    “ The plaintiff, in support of her title to the land in question, adduced 1st, a bond from Jesse Rountree to Andrew Glover, in the penal sum of $ 10,000, conditioned to make title to the land in question: date the 9th August, 1805.
    “ ‘ The condition of this obligation is such that if the above bound Jesse Rountree, his heirs, executors or administrators, do on demand after the said Andrew Glover procures a plat of the after described premises from a surveyor, so that the quantity, stations and lines can be distinctly ascertained to make a title, make the said Andrew Glover, his heirs or assigns, a special warrantee title from him, said Jesse Rountree, and his heirs, to a tract comprising a part of two tracts of land supposed to bound nearly as follows : Lying on the East side of Big Horse creek, in the district of Edgefield aforesaid, on the lower side of said Andrew Glover’s plantation, where said Andrew Glover has a field cleared to a branch, and then to run up said branch till you go above the place occupied by the said Andrew at present as a garden, about five or six chains, then turning and running Northwardly to the head of a branch called the Tan-Trough branch, which runs into Big Horse creek, above a bridge of said Andrew Glover on said creek; all the land to be included within the said lines (except what will be flowed by the mill pond at present building by said Jesse Rountree, and also excepting the timber on said land, which said Jesse Rountree may see cause to make use of for said mill) to be conveyed in the special title above mentioned to said Andrew Glover, then this obligation to be void, otherwise to remain in full force and virtue.
    Jesse Rountree, [l. s.J
    Sealed and delivered in presence of] Moses Spear, }• John Rountree. ’ J
    “ That shortly after the execution of said bond, Andrew Glover, who it appears was Rountree’s nephew, went into possession of the land therein described, and continued to occupy it until the period of his death, which happened in the year 1822. That he left a widow and an only daughter surviving him, the latter of whom intermarried with Gol. John Marsh ; that the widow continued to occupy the land for about two years, when she died, leaving Marsh and his wife in possession of it, where they continued to reside until the 12th of October, 1837, when they conveyed it to one James Purvis; that Purvis resided on the land until the 24th December, 1840, when he conveyed it to one Sealy, who occupied it until the 4th of June, 1844, when it was sold under some judicial proceeding against him by Sheriff Boulware, and purchased by Wade Glover; and that the latter, on the 7th November, 1846, conveyed it to the plaintiff, who has occupied it ever since.
    
      “ It further appeared that the said Jesse Rountree was the owner of a large body of land (some said about 4,000 acres) in the vicinity of Horse creek ; that he completed the erection of the mill, mentioned in the bond to Glover, in the year 1807, and continued to run it from that time until his death, which happened some time in the year 1814; that after his death, the mill passed into the possession of one James Myers, said to have been his nephew: some of the witnesses said Myers acquired it by devise from Rountree, others said by inheritance: be that, however, as it may, he continued to ran the mill until he sold it to one Perry, from whom he afterwards took it back, and run it until his death ; that after Myers’ death his widow intermarried with one Iverson L. Brooks, who, in the year 1840, sold it to Wiley Milton, who afterwards mortgaged it to the Mechanics’ Bank of Augusta, in whom the title, either by foreclosure of the mortgage, or by some other means, became vested; and that after the Bank had acquired the title, it was advertised and sold at public auction, and purchased by the defendants in the year 1850. It may also be proper to state, that while Marsh occupied the land he caused a survey of it to be made by one Blocker, whose plat bears date the 16th of June, 1827, when it was found to contain 168 acres.
    
      “ The proof of defendants having raised the dam and the water in the pond, was as follows :
    
      “ J. J. O. Wilkinson said he had known the mill ever since it was built by Rountree; that within the last eighteen months or two years defendants had raised the dam higher than it was before; but don’t know how much higher the waters had been raised.
    “It was on the cross-examination of this witness that defendants proposed to introduce Rountree’s declarations, in Glover’s presence, referred to in the fourth ground of appeal, as to the height he intended to elevate the dam and raise the water in the pond: the question was objected to, and I sustained the objection. 1st. Because the declarations in question were made subsequent to the execution of the bond to Glover ; and 2nd. Because the elevation of the dam itself by Rountree, with Glover’s acquiescence, and the height to which the water had been raised during all the time Rountree had run the mill, was higher evidence of the fact than the mere parol declarations of the latter.
    “ James Purvis. — Had owned the land, and had lived on it for three years; had cultivated it to the edge of the pond, and some of the islands; that defendants had raised the water about two years ago; and that it now flows up branches it never went up before; and that part of the land which he had cultivated was now under water.
    “ A. J.. Rountree. — Judging from the appearance of the growth, he thinks about ten acres, including woodland, have been overflowed. In June last he paddled a batteaux where corn had grown two years before; there was about two feet of water.
    “ James Powell. — Has known the creek for fifty years, and has rafted lumber down it for the last thirty or forty years. To raft now, requires polls five feet longer than formerly. Defendants have raised the water from three and a half feet to four feet higher than in Melton’s time. Some of plaintiff’s corn fields have been overflowed; has seen the stalks standing in the water.
    “ Here the plaintiff’s testimony closed, when a motion was made for a non-suit, on the ground that the plaintiff had exhibited no legal title to the land in question; that the only title she had exhibited was a mere equitable title, derived from Andrew Glover; and that the legal title to the land was still in the heirs, of Jesse Rountree. I refused the motion, and ruled that the mere possession of the plaintiff was sufficient to entitle her to maintain the action as against the defendants — a right which could only be defeated by the defendants in two ways: that is, either by proving a paramount title in themselves to the premises in question, or by proof of a license from another in whom such paramount title was vested.
    “ The defendants then proceeded to introduce the following proof in support of a paramount title in themselves:
    “ 1. A grant to William Swift for 276 acres of land, dated the 5th February, 1787.
    “ 2. Conveyances from the several heirs of Swift for their respective interests to James Myers: date 22nd November, 1816.
    “ It was said by Dudley Rountree and Silas Stallings, two of defendants’ witnesses, that the Swift grant covered the land on which the mill stood ; also, all the land claimed by the plaintiff, but no re-survey or plat of it was produced on the trial.
    
      “ Defendants also claimed title from Jesse Rountree through Junius Myers, to whom the land had either been devised by Rountree, or who had acquired it by virtue of his marriage with Rountree’s daughter; but of this no proof was adduced other than what was stated by two witnesses.
    
      “ In the conveyance to the defendants by the Mechanics’ Bank of Augusta, reference is made to a plat made by one Philips, a surveyor, dated 4th January, 1850. No such plat was, however, produced ; and in reply, a newspaper published in Augusta was introduced, dated the 17th May, 1850, containing an advertisement of the mill, in which a plat of the land was exhibited, with a portion of the land platted out.
    “ Lewis Elsey, a witness for defendants, testified that he did not think the present mill dam was higher than the old one; and that if the water in old Rountree’s time had been raised to the top of the dam, it would have been as high as it is now.
    
      “ I instructed the jury that the title to the premises in question was clearly in the plaintiff, both as against the Rountree and the Swift title. That as to the former, although Andrew Glover’s title, when he took possession of the premises, was merely equitable, his continuous possession for five years under the Rountree bond, had converted his equitable into a perfect legal title, to the extent of the metes and bounds therein de* scribed, to say nothing of Marsh’s possession against Myers, from Andrew Glover’s death, in 1822, to the alienation by the former in 1837. Andrew Glover’s title was perfected against Rountree prior to the death of the latter in 1814. And as regarded the Swift title, assuming that it covers the land in controversy, it was equally clear that the statutory bar was complete, as against Myers, during Glover’s life-time — the latter having survived six years after the former had acquired the Swift title.
    “ On the question of damages, I instructed the jury, that if the defendants had raised the water to a greater height than it had been raised by Rountree in his life-time, the plaintiff was entitled to recover to the extent of the injury she had sustained in consequence thereof.
    
      “ The jury found a verdict for plaintiff for $30 damages.”
    The defendant appealed, and now moved for a new trial, upon the grounds:
    1. The defendants, under the title deduced by them from William Swift, were the legal owners of so much of the land claimed by the plaintiff, as is overflowed by their mill pond.
    2. The defendants, under their title derived from Jesse Roun-tree, are the legal owners of the land overflowed by their mill pond, to which the plaintiff sets up claim.
    3. The presiding Judge erred, it is respectfully submitted, in instructing the jury that the plaintiff was the legal owner of the land in question, the evidence being wholly insufficient to show title in the plaintiff, either by actual conveyance or adverse possession.
    4. The declarations by Jesse Rountree, addressed to Andrew Glover, and acquiesced in by him at or immediately after the building of the mill, signifying his (Rountree’s) intention to elevate his mill pond to a certain designated height, were admissible in evidence, and it is respectfully submitted that the Court erred in excluding them.
    
      5. Whether the plaintiff had established her title to the land in controversy, by means of adverse possession, should have been referred to the jury with suitable instructions, and it is «espectfully submitted that the presiding Judge erred in not submitting that question to them.
    Carroll, for appellants.
    
      Bauskett, contra.
   The opinion of the Court was delivered by

WhitNer, J.

The grounds of appeal suggest two prominent inquiries: Whether the action could be maintained on the case made by plaintiff, and whether a title paramount in the defendants was not established.

The action was case for overflowing lands, and in reference to title, I will, first, briefly consider what was incumbent on the plaintiff. Her possession of the premises was beyond dispute, and it is equally clear that this possession was invaded by the act complained of. There is nothing in such a case to prevent the application of the familiar rule, that possession affords presumptive evidence of title. Analogous to the action of trespass clausumfregit, the possession of granted land is sufficient to maintain the action, and when shown, the onus is devolved on the defendant to establish title paramount, or at least is sufficient to put him to proof to justify his act. In Mims vs. Weathersbee, 2 Strob. 184, an action of like kind with this, the same doctrine was maintained. A tenant in possession may maintain his action for such damage to his possession. (Com. Dig. Action on case B. 304.)

The bond set up by this plaintiff served as color of title, and a possession under it for more than twenty years was sufficient to authorize the presumption of a grant. The metes and bounds were sufficiently defined, and the possession of Glover, succeeded by his widow and daughter, who had intermarried with Marsh, each representing the same claim, may well be tacked together for the purpose of such presumption.

Without any violence to the doctrine on this subject, the subsequent possession of Purvis and Sealy and others, down to the plaintiff, may be added, and thus united, constitute a period, sufficient twice told for such presumption. But the defendants insist on their paramount title derived from William Swift, as also from Jesse Rountree, to each of whom grant had issued— each, as is claimed, covering the land in question, the former being the senior. There is some difficulty as to the precise proof adduced on this branch of the case, the attention of the presiding Judge not having been pointed to the several links in the alleged chains, because of the supposed understanding between counsel. Enough is seen, however, to satisfy this Court that any objection to the recovery on these grounds must be unavailing. Apart from all questions arising upon the true location of the Swift grant and the probable exception of this very tract in the conveyance by the Mechanics’ Bank of Augusta upon a just understanding and correct location thereof, a statutory title has been acquired as against any title which might have been derived from either source.

Each occupant of this land claimed in his own right, and whether we regard the possession of Glover, or the possession of Marsh and wife, the statutory bar was complete. The bond from Rountree sufficiently defined the limits, and the possession of Glover claiming as a purchaser and in the actual undisturbed enjoyment for seventeen years, connected as it may be with the subsequent possession of his heirs at law some twelve or thirteen years additional, places this branch of the case beyond cavil. Again, Marsh, .when he entered in 1826, caused the lands to be surveyed by Blocker, whose plat still more clearly defining the boundaries, was certified 16th June, 1827, and he, Marsh, continued in possession down to 12th October, 1837, a period itself of more than ten years.

But it is insisted that by the terms of the contract between Glover and Rountree, there was a condition precedent that would save the operation of the statute, and at least negative the conclusion that the possession was adverse, to wit: The title was to be made when a plat was procured. Analogies are sought between this, and one who enters under a conditional agreement to purchase, or where possession is obtained under a contract to purchase, where by the terms of the contract the purchaser is postponed as to his title until the consideration moving to the contract is performed by himself. In such cases there is reason and propriety for the conclusion that such possession prima facie should be regarded as permissive. But the analogies do not hold. Here there was no future benefit secured to the obligor. Neither the terms of the contract nor subsequent facts show any continuing acknowledgment of title in Rountree, or assertion of title by him, or that the possession was subordinate. There is nothing, then, to exclude the usual inference, now grown into a rule, that where one is in possession of land, he is considered as holding adversely until the contrary is shown. Much less can this doctrine be successfully assailed where all the facts tend to the same conclusion, that the possession in this case was clearly adverse in its character.

Whatever may be the peculiar hardship of this particular case, the recovery is too well fortified by law and evidence to authorize any disturbance of the verdict.

The motion for a new trial is dismissed.

O’Neall, Wardlaw, Withers, Glover and Munro, JJ., concurred.

Motion dismissed.  