
    CharlestoN, January Term, 18Í3.
    William Heyward vs. Thomas Bennet.
    Desausure, Plaintiff’s attorney.
    
    Pringle, Defendant’s att’iji
    
    Trespass to try title.
    This was an action of trespass to try title to acres of marsh land on James’ Island. Title being the issue, there was no question about the trespass. The plaintiff attempted to deduce his title from Samuel Stobo, but in tracing the title up to the original grant, which was to one Mary Patty, on the first of July, 1683, it appeared very manifestly, and so the court stated to the jury, that the grant did not cover the marsh, but expressly called for it as a boundary. The plaintiff then set up a claim by possession, which it was said commenced’anterior to the 4th July, 1776, and, therefore, would consummate his right under a special clause in an act of the legislature, notwithstanding the recognized principle of nullum tempus occurret Peipublicce. Upon the point of possession, the evidence on both sides was vast, and the one contradictory of the other. The plaintiff’s witnesses deposed, i that Mr. Heyward’s father had kept the marsh enclosed by running a fence so far into it as to exclude the neighbors’ cattle, and that the mai’sh so enclosed served him for pasture; (but all agreed that the cattle could only feed upon a hard margin in the marsh of 15 or 20 feet$) that he had occasionally used Coxe’s creek, which flowed through the marsh for navigation of his market boats to a landing from which he sometimes sent vegetables to market, hut it appeared in evidence, that the landing could only be resorted to at a certain pitch of the tide, was in a sequestered situation, and that Mr. Heyward, generally used for marketing the landing at Dill’s Bluff, where he built houses for his boats, being on a creek which afforded a better navigation to the market than Coxe’s. A witness on the part of the plaintiff deposed, that a hammock in the marsh had been cleared by plaintiff’s father for the purpose of establishing an orange garden, but that it had never been planted, nor was the garden further attempted, and that he had sometimes used the sedge from the marsh fronting his house as manure. The defendant produced a grant of the marsh, dated and it was in evidence, that the plaintiff, since the date of the defendant’s grant, had obtained a grant of part of the marsh claimed under Stobo’s conveyance. The defendant’s witness positively swore that Mr. Heyward, the father, had never enclosed the marsh till within a recent date, but that it had been used indiscriminately as a common, so much at least as was fit for that purpose, by the cattle of the neighborhood; that the fence which enclosed Mr. Heyward’s field did not run into the marsh, but parallel with it, in proof whereof, trees of considerable growth (a fact not denied) between where the fence was said to have stood and the marsh, are now to be seen, which plainly delineates the course of the fence. That they never knew Coxe’s creek used by Mr. Hey-ward for his market boats; but they have frequent. ly, nay almost constantly, seen his boats going up and down Dill’s creek. . principal witness of the plaintiff who had been an overseer to the plaintiff’s father, also confessed he did not recollect that Coxe’s creek had been used by Mr. Heyward. The defendant’s witnesses outnumbered the witnesses of the plaintiff, and had equal opportunities with those of the latter most relied on for being acquainted with the facts to which they deposed. Upon this evidence, the court, after the pleadings had been concluded, charged the jury, that the plaintiff had failed in the deduction of his title ; that the deed, unsupported by the grant, could be regarded as a circumstance only to shew the commencement of the possession. That it shewed Mr. Heyward, the father, had taken possession of the marsh; that the jury, from long use might presume a grant, but here that presumption could not avail, as it was rebutted ; that the plaintiff could only support his claim by possession anterior to the 4th July, 1776, under the clause of the act of 1787 ; that under this act his right could not be shaken, that Strain’s evidence was so decisive of possession that it was impossible not to believe the plaintiff’s right consummated, for he had lived with the plaintiff as an overseer from ’65 to ’71; that Yates had declared the fence run into the marsh in ’76 ; that the defendant’s witness confirmed that fact; Todd and Hivers having said there was the appearance of an old fence; that Mr. Heyward had also used the j anding on Coxis creek, another proof of the occupation of the marsh ; that it rested with the jury to say who was mistaken. Mair had been an overseer ; that numbers were not the criterion by which to weigh testimony, but the opportunities which the witnesses had of obtaining correct knowledge; that the defendant’s grant was óut of the question j it had no seal and the judges had determined that a grant without a seal was void. The jury retired and returned with a verdict for the plaintiff for the whole land in dispute.
    
      A title by possession under the hot of 1787 must be an ac-tualpeaceable possession, such as is notice to all the world.
    
      On the part of the defendant, a new trial is moved in this case on the following grounds.
    1st, That the plaintiff could not shew any right of title in him to the premises in question, and of this opinion was his honour the judge who presided at the trial.
    2nd, That the premises in question, never were granted to the original grantees under whom the plaintiff claimed and endeavoured to deduce the title.
    3rd, That the premises never having been originally granted, the plaintiff could only claim by possession anterior to the 4th July, 1776, agreeably to the act of the Legislature in such cases made and provided.
    4th, That the plaintiff not having in him a right of title, hut setting up a bare right of possession, it was legally incumbent on him to support such possession by the strictest proof.
    5th, That the evidence adduced in support of _ . . . r. such possession, was»insufficient to vest m him a right to the premises in question.
    6th, That the verdict was contrary to law and evidence, because the fence said to be an enclosure,, supposing it proved, was not of itself sufficient to establish a right by possession ; and the use set up, (if proved,) was of a very small proportion of the property; namely, the margin of the marsh, a temporary use of the hammock in the marsh which was afterwards abandoned, the plaintiff’s ancestor having only cleared, but never cultivated it, which could not give a right to the premises or body of the marsh.
    7th, That it is presumed on the part of the defendant, that his honour the judge mistook instating the evidence of Yates, one of the witnesses, in the following particular; that he saw the plaintiff in 1776 in the marsh, instead of 1796; and the testimony of jRivers as to seeing the remains of an ancient fence, as he only spoke of rails washed up by the tide. That the verdict was, in other respects, against evidence.
   Colcock, J.

In this case, the plaintiff endeav-oured to maintain his right to the land in question hy a written title and by possession. On the first J J r # he could not prevail, because there was a link m the chain of title wanting, and also, because had the title been complete, the land in question was not comprehended within the boundaries mentioned in the written title. On the ground of possession, he is not entitled to recover the land which was intended to be given to him by the verdict of the jury, for if any possession was proved to have been in the plaintiff, it was only to that part which was enclosed by the fence, which is not a fourth of the land intended to be given by the verdict. The possession which is relied on in this case, is, I presume, such possession as was contemplated by the act of 28th March, 1787, which says, (section 8th,) an actual, peaceable and quiet possession of lands five years previous to the 4th July, 1776, shall be deemed a good and sufficient title, and any grant obtained since that time, or which may be obtained, for the said land, is hereby declared null and void/? which in my judgment means at least such an act of ownership as would be notice to all the world of a claim. Now the acts relied on in this case, are the feeding of cattle on the land, or so much as the cattle could obtain access to, and the clearing of a hammock in the marsh. The first cannot be considered as any evidence of a claim, because the cattle of the neighbourhood also feed on the same land; nor can the second, because the hammock never having been planted or enclosed, it might have been presumed that the party had only intended to claim, but had afterwards abandoned the idea. The words u peaceable and quiet” evidently conveying to the mind the idea of a continued possession. But in this case the verdict is so indefinite that it would be in my judgment a sufficient ground for a new trial. What , , was the object of the parties in this suit ? To settle the right. Has the verdict effected the object? Could a writ of habere facias possessionem be issued ? It could not. Is it in the power of the court to amend it ? I presume not. Another suit is then indispensably necessary. I am of opinion, therefore, that a new trial should be granted.

Nott, J.

It is very obvious that neither the original grants of the plaintiff, nor any of his intermediate conveyances cover the land in dispute. TTis claim, therefore, rests alone on possession, unaccompanied by any colour of title. If Stobo’s deed had been found to include the land as I at first inferred it did from the judge’s report, I should have been of opinion that it authorised the verdict which the jury have found. But where we find the plaintiff’s own deed describing the marsh as his boundary, it seems to repel the idea of his claiming the marsh itself? the possession proved in this case, affords but very slight evidence of ownership. It is true plaintiff’s boat sometimes passed from his highland over this marsh to Coxe’s creek; but this will not authorise us to infer that he laid a claim to the land over which his boat passed. He also dug mud out of the marsh to manure his high land; but this has probably been done by thousands without pretending to set up any claim to the soil. With re-gar(j to the fence that was run through the marsh, as little can be inferred from that. We may as well suppose that it was intended to prevent the neighbor’s cattle from inaking incursions on his high lands and to save the expense of running a fence all round the margin of the marsh, as to appropriate the marsh to his own separate and exclusive use; at best, this evidence is too equivocal to establish a right upon. But even if we give full effect to the possession, it will not cover by any means the quantity given by the verdict, if it gives any thing. Upon the whole, therefore, I am of opinion, the verdict ought to be set aside and a new trial granted. I lay no stress on the uncertainty of the verdict; for if the plaintiff is satisfied, the defendant has no right to complain.

Smith, J.

The jury found a verdict for the plaintiff, and in doing so, they have evidently found for him lands not included within the grants under Which he derived his title. Nor was there any Other written title, nor any proof on his part to establish U statutory title in the plaintiff to that part of the land which lay without the old fence, and which was covered by the marsh; and this part of the land, was evidently within the limits of the defendant’s grant. Therefore, it is a verdict without evidence, and one that deprives the defendant of his just claim to this part of the premises. I am for a new trial.

Brevard, J.

I am of opinion the motion ought to be granted. The verdict is in these words, “We find for the plaintiff all the lands lying to the westward of Coxe’s creek, from the mouth thereof upwards, until it intersects the first boundary line it comes to, with forty shillings damages.” The uncertainty of the verdict is not a ground in this motion, nevertheless, I think it cannot be overlooked. To refuse the motion, would be to support a verdict obviously imperfect on its face; there are no materials in the record, nor any thing to which it can refer to cure the imperfection, to render it certain. It would require the verdict of another jury, to ascertain the intention of the jury who found this verdict. On this ground I think the verdict ought to be set aside. 5th Com. Dig. 521, 522. Cro. James, 113. Co. Litt. 227. a. 1 T. R. 141. I am also of opinion that the verdict is against evidence and law, and on this ground likewise ought to be set aside. The plaintiff claimed under an original patent granted to Mary Fa,tty, dated July, 1683. It was found, in locating the land embraced by this patent, that the marsh land in question was not included therein; this title failed. The pre: sumption of another grant, from conveyances produced in evidence, was unsupported by evidence, and was completely rebutted, as the presiding judge very properly observed at the trial. The title by possession, which was last of all relied upon, was also unsupported by evidence. There was no evidence of actjial, peaceable and continued possession, five years anterior to the 4th July, 1776, as was Pre^ended ; and there was no evidence of a claim by title, or of a claim by right of possession, corresponding with the pretended possession, which I think essential to such a title. The evidence of possession went rather to prove a right of passage occasionally through the marsh, and acommon right of pasture, than an exclusive right of possession by virtue of a legal title.

B vy, J.

After duly considering this case, I am clearly of opinion that there should be a new trial: 1st, Because the plaintiff failed in his proof on the trial, to make out his title to the marsh land in question, by any grant or deed of conveyance, to shew that the fee ever vested in him. Nay, on the contrary, the old deeds he did produce, and the plots, all tended to shew that his plantation on fame’s Island, back of the marsh, bounded on its margin, and never included it: Sndly, Because the kind of possession set up by plaintiff previous to the 1st July, 1776, in or - der to presume an ancient grant, which had been lost by time or accident, was too vague and uncer - tain to warrant any such presumption, and the finding of a jury without some good ground to warrant it, never can give a legal title; it is clearly a finding without evidence : 3rdly, Because the finding of the jury, and the verdict itself is so uncertain and indefinite, that no judgment could b# entered up for any specific quantity of land, or any writ of possession awarded for any definite number of acres, within any designated metes and boundaries. For these several reasons, I am of opinion that there should be* a new trial.  