84 W. Va. 336 | W. Va. | 1919
The decree brought here for review upon appeal by J. E_ Kendall-and C. W. Fisher, at first named defendants, but who> later became coplaintiffs with W. H. Ahner, their' lessee, dissolved the injunction theretofore awarded to Ahner, he then. . being sole plaintiff, but' who has not appealed, canceled the deed to appellants and the lease by them to Ahner as clouds upon the title of the appellees, Young and Ohio Fuel Oil Company, as prayed in their answers in the nature of cross-bills seeking such relief, directed an accounting for the oils produced from the land in question, and for this purpose referred the cause to a commissioner. The lease for oil and gas purposes executed by Kendall and Fisher to Ahner covers a tract of 33. acres of land. To prevent interference by John M. Young and Ohio Fuel Oil Company, his lessee, with operations thereon for the production of oil and gas, Ahner obtained the injunction dissolved by the decree. This controversy concerns the title to that- tract as between Kendall and Fisher on the one hand and J. M. Young on the other, and the right' to produce oil and gas therefrom as between Ahner of the One part and the Ohio Fuel Oil Company of the other part.
Kendall and Fisher rely for title to the disputed area upon two deeds executed to them by Andrew J.. Jones, one
To reach a correct solution of the issue respecting title it is necessary to determine whether, as appellants claim, the 3.3-acre tract is within the boundary of the 63,500-acre tract 'granted to John Steele by the Commonwealth of Virginia by a patent dated November 12, 1796, or whether, as appellees claim, it is within the tract of 180 acres granted to John Young, Sr., by the same authority by a patent dated February -, 1825. For the purpose of this discussion it is for the present necessary only to concede the fact to be as ■claimed by the appellants. Indeed that concession may, and as we shall see does, apply for all purposes, because that tract, if not within the Steele survey exclusive of the 180-acre .survey, is within the latter survey patented to John Young in 1825 and later referred to in tracing the title of John M. Young to the 33 acres. The latter area is, nevertheless, within the Steele survey, because it included within its boundaries the 92-, 100- and 180-acre tracts hereinafter referred to, but expressly excluded from its operation the 92- and 100-acre tracts.
Jones, the grantor of Kendall and Fisher, acquired the land to which he had any record title from E'lisha M. Givens by deed dated December, 1902, for 50J4 acres, all of which Jones says lies west and none of it east of Young’s Branch, a stream whose waters flow through the 180 acres, 92 acres and 100 acres and then into Elk River of which it is a tributary. Young’s Branch, therefore, separates each of the three tracts mentioned into two parcels, and the land of James M. Young on ■ which the Ohio Fuel Oil Company has a lease lies east of that stream. The tract of 50 acres conveyed by Givens to Jones the latter conveyed to W. H. Ewing October 31, 1904, by the same calls and description mentioned in the Givens deed to
The land within which the 33 acres lie, if J. M. or Mark Young, as he is commonly called, owns it, is a part of the 1.80-acre survey which the Commonwealth of Virginia granted to John Young, Mark Young’s grandfather, February-, 1825. John Young had theretofore acquired title' to and then owned the tract of 92 acres likewise granted by patent to John Osborn, Jr., April 3, 1788, and the tract of 100 acres likewise granted by patent to John Young March 11, 1800. Each of these three tracts adjoined each other thereby forming one compact boundary under a single ownership, and so it remained until December 25, 1832, when John Young adopted Young’s Branch as the natural divisional line separating each of the three tracts into two parcels, and conveyed the three parcels west of Young’s Branch to his son Charles Young, and each of the three parcels east of the branch to his son John D. Young, the father of Mark. Charles Young seems to have conveyed to J. D. Lewis and Matthew Geary the parcels so conveyed to him by his father. , These parcels Lewis and Geary reconveyed to John D. Young May 23, 1857, thereby again reuniting into one boundary and one ownership the three tracts so granted to Osborn and John Young, the elder, and as so consolidated John D. Young 'conveyed them to his sons Mark Young and L. N. Young September 20, 1867, describing the quantity as being 375 acres, only two acres more than the patents purport to grant.
Appellants advance and lay most stress upon the argument that as the deeds or some of them in the chain of the Young title call for a line from B to E, as these letters appear on the official map filed in the cause, coupled with the fact, admitted to be true, that the corners so marked and designated are identified and recognized as true comers of other surveys' and called for in the 100- and 180-acre surveys and patents, the defendants are concluded thereby and cannot set up or maintain any claim of title to that part of the 180-acre tract beyond or northeast of that line. The 180-acre tract lies north of the 100-acre tract and between it and the Lewis and Donnally line. The deed by John D. Young to Mark Young and his brother .Lewis contains this description of the land conveyed: , ‘ Commencing on a beach tree near the corner of survey of land formerly owned by Benjamin Slack, Sr., thence with said line back of the land owned by John D. Lewis and the heirs of Andrew Donnally up the river a straight line to land owned by William Cobb, thence with Cobb’s line to the .river, being the same land conveyed to me by Matthew Geary and John D. Lewis and John Young, my father, supposed to contain three hundred and seventy-five acres.” The comer at each end of this line is well'established, but to adopt the line between them, as appellants insist should be done, would deprive Mark Young of land he and his predecessors in title have used, occupied and enjoyed without controversy or interruption for nearly a century and
For the proposition relied on by appellants they cite section 1043, 2 Devlin, Deeds (3rd Ed.) ; Hunter v. Hume, 88 Va. 24. -This is the language of that section: “Where a deed contains a specific description of the property conveyed and states that it is the same land conveyed to the grantor which covered a tract of a larger size, and recites the conveyance to the grantee of 'all the land conveyed to me by the deeds aforesaid except such portions thereof as I have heretofore sold, ’ these words are to be construed as not altering the description or limiting the effect of the prior granting clause of the deed, but as being a reference merely to the claim of title under which the grantor holds..” For that proposition one case only is cited, Dow v. Whitney, 147 Mass. 1, 16 N. E. 722. An examination of that case discloses a definite intent to circumscribe with precision the land conveyed. The deed construed evinced a purpose to limit the subject matter of the conveyance by prescribing the enclosures with particularity, giving each and every boundary line, and in specific terms excludes from its operation parcels
The Virginia case cited uses this language: “Particular boundaries govern general description of land; and a false description is rejected and the instrument takes effect if a sufficient description remains to ascertain its application.” That statement of the principle as contained in the first point of the syllabus is to be read and considered in the light of the facts of the case, and when so read it is apparently inapplicable here. However that may be, one of the authorities cited to support the proposition, and the others are perhaps like it, is 1 Greenleaf on Evidence, § 301. Where, the author says, “upon applying the instrument to its subject matter * the description in it is true in part but not true in every particular, * * so much of the description as is false is rejected, and the instrument will take effect if a sufficient description remains to ascertain - its application.” He illustrates his meaning by a quotation from Mr. Justice Parke in Doe d. Smith v. Galloway, 5 B. & Ad. 43, 51, saying: “Therefore under a lease of ‘all that part of Blenheim Park situated in the county of Oxford, now in the occupation of one S, lying’ within certain specified abuttals, ‘with' all the houses thereto belonging which are in the occupation of said
In other words, the intent of the grantor is to prevail according to the well established canon of construction of instruments of every character. For in construing deeds as well as wills the purpose is to ascertain the intention of the parties, and when that intention is ascertained it will be effectuated unless it violates some other legal principle. Irvin v. Stover, 67 W. Va. 356. A more recent declaration of the same rule is found in Winding Gulf Colliery Co. v. Campbell, 72 W. Va. 449, wherein it is said: “If a deed contains a general description of property conforming to the manifest intention of the parties as shown by the situation and circumstances surrounding them, and the purpose they had in view, and also another description clearly inconsistent with such circumstances and purpose, such later description must be rejected as false and as having been inserted in the deed by accident or mistake.” Besides, there is the general presumption that a grantor does not intend to retain the title to a long narrow strip next to one of his lines when to do so is clearly inconsistent with the manifest purpose of the conveyance. Western M. & M. Co. v Peytona etc. Coal Co., 8 W. Va. 406. Or as said in Winding Gulf Colliery Co. v. Campbell, supra: “The grantor in a deed, apparently intended for conveyance of all his land or all of a tract, is presumed not to have intended to retain a narrow strip thereof, and upon this presumption calls in a deed may be disregarded as being erroneous, if the deed, viewed in the light of extraneous evidence, is ambiguous in its terms.” This presumption we think is peculiarly appropriate to the facts and circumstances of this case. -For we repeat that if the line from B to E is to limit the extent of Mark Young’s title northward, the effect will be to deprive him of a portion of the land to which we think in right and justice he is entitled, even as far north of that line as the 180-acre tract ex
This conclusion is reinforced by the fact of possession by Mark Young and his predecessors in title to which we have already alluded, as well as the uninterrupted continuity of such possession in the same family for an unusual length of time, especially when their possession is compared with that ■claimed by appellants, a comparison which we shall now proceed to make. First of the latter. This possession J ones, the grantor in the deed to Kendall and Fisher, claims to have had from the date of the conveyance to him by Givens in 1902, and to have retained it until he conveyed the land to Ewing in 1904. But the land conveyed by these deeds clearly is not the land in controversy, because the latter is the land embraced in the calls of the deed by Jones to Kendall and -Fisher April 3, 1912, one of which is for the Lewis line. Besides, to the land conveyed to Kendall and Fisher Jones appears to have had no title whatever, and his possession, therefore, had no effect by way of strengthening his title or the title of his grantees. prior to 1912. This suit was instituted ■September 14, 1912. Moreover the possession of Ahner under the deed last mentioned and his lease by the grantees therein-was not upon the land in controversy but outside of its boundaries and on land to which neither Jones nor Kendall and Fisher, his grantees, had the least semblance of title. Title to it was in J. M. Young as a part of the 180-acre survey and patent to which his title has been traced. And Ohio Fuel Oil Company, Young’s lessee, had entered on the land, made a location for a well to be drilled thereon, and was in the act of assembling the material for the purpose of erecting a derrick preparatory to the drilling of a well thereon under the authority of such lease, when the preparation was interrupted by Ahner, and warrants for. his arrest were executed upon him. Such possession as he claims to have had readily falls within the definition found in Dyer v. Reitz, 14 Mo. App. 45, 46: “ ‘Scrambling possession’ is one without any savor of the legitimate enjoyment of property rights, and neither sought nor secured on any such account; but which'
The attempt recently made by appellants to strengthen their title and right of possession through the instrumentality of a proceeding to sell the land in controversy as forfeited and redemption by them could not and did not accomplish that result. For to effect that result Nendall and Fisher must theretofore have had a valid title, legal or equitable, superior to that of any other claimant, whether such claimant be the.state, holding a superior-title by forfeiture or otherwise, or an individual. Yokum v. Fickey, 37 W. Va. 762; State v. Jackson, 56 W. Va. 558. And such indeed is the requirement of section 17, ch. 105, Code. Without such title permission to redeem and redemption avail nothing as against the true owner not a party thereto, Mark Young not being named as a party to that proceeding. ■
Then what of Young’s possession? To what has already been said upon this phase of the ease it is only necessary to make a few observations. If the owner of the land has possession of any part of it under a claim of title, such possession constructively extends to all parts of it even to the exterior boundary of his title papers. This is true whether the land in controversy is embraced by one or several tracts, because actual possession within one of two or more adjoining
But appellants further contend that the possession of Mark-Young combined with the possession of those under whom he-claims did not extend to the 33-acre tract, the argument to-support the-contention being that as the land was in its primitive condition and uninclosed, there was and could be no-such possession. This conclusion is without warrant of law or fact. "The true or apparent owner dwelling upon his. farm by himself or his tenant is as truly in the actual possession of his waters and unimproved woodland, however extensive they may be, as he is of his pastures, fields and gardens or that part of the land covered by his residence.”' Garrett v. Ramsey, 26 W. Va. 345. Such possession is deemed to be coextensive with and limited only by the title or color of title under which Young claims. "One who enters upon, land under color of title is p'resumed to have entered in accordance therewith, and therefore his actual possession of a portion of the property will by presumption of law be constructively extended to the boundaries defined by his color of title, except so far as the land so included is in the adverse possession of another.” State v. Morgan, 75 W. Va. 92, 96. This doctrine of course applies also to possession under the
Appellants vigorously urge the necessity for trial of the issues on the law side as by ejectment or unlawful detainer because of the uncertainty as to the location of the boundary lines of the 180-acre tract. There is, we think, no such uncertainty that a court of equity in the exercise of its legitimate authority cannot dispose of the merits of their contention. For the court alone and not a jury must decide the purport and intent of a deed or Dther instrument and what it passes. These are questions of law, not of fact. Besides, a court of equity alone can grant the relief prayed for in the answers of appellees, whereas a court’ of law does not have that power.
As the statement of facts of the cause and the principles applicable to them fully disclose our views, other assignments become unimportant. Our conclusion therefore is to affirm the decree, and remand the cause.
Affirmed and remanded.