77 W. Va. 113 | W. Va. | 1915
This suit in equity is brought to enjoin defendants, heirs at law of W. L. Swope, deceased, from proceeding to sell a certain parcel of land containing sixty-five acres, alleged to be a part of the farm owned by plaintiff and now in his possession.
The-court on full hearing dismissed plaintiff’s bill for want of equity, but without prejudice to his right to sue at law, and he has appealed.
The facts essential to an understanding of the controversy, and hence to a knowledge of the principles of law applicable thereto, are as follows: W. L. Swope died seized of certain
There is no question of the right of an owner of land, who is in possession thereof, to enjoin the commission of acts which will result in creating a cloud on his title. Land & Mining Co. v. Jones, 65 W. Va. 59; Whitehouse v. Jones, 60 W. Va. 680: Moore v. McNutt, 41 W. Va. 695; and Castle Brook &c. Co. v. Ferrell, 76 W. Va. 300, 85 S. E. 544. There appears to be no
The deed to plaintiff describes the land as “Lot No. 3 of the W. L. Swope ‘Home Place’ ”, and then proceeds to give its boundary lines. It makes no reference to the report or plat returned by the commissioners, but a comparison of the deed with the report shows the description of the boundary lines in each to be identical. There is no dispute respecting the true location of the Long lines. Hence the suit involves only a construction of plaintiff’s deed, and not the true location of a disputed boundary line. If, by a proper construction of his deed, plaintiff is entitled to the land bounded by the Long lines, then he has a right to maintain his bill, for, although it appears the land in controversy is unenclosed, timber land, plaintiff’s admitted possession of other portions of his tract extends his possession to its exterior bounds, no adverse possession being shown. Curtís v. Meadows, decided at the present term. There is-no necessity for referring the question here involved to a court of law to be determined by a jury. Ephriam Creek Coal & Coke Co. v. Bragg, 75 W. Va. 70, 85 S. E. 190. And contra, if a proper construction of plaintiff’s deed does not entitle him to the land in question, he could not recover in an action at law. His case, in either court, depends solely on the terms of Kis deed, which a court of equity has as much right to construe as a court of law, in a ease properly before it.
The call in plaintiff’s deed, “to corner of Long’s line and with said line to corner of lot No. 2 on said line,” must nee-
The ease of Harman v. Lambert, 76 W. Va. 370, 85 S. E. 660, cited and relied on by counsel for appellees, does not apply here. Plaintiff’s title is not rendered doubtful because of any uncertainty in the location of boundary lines. The Long lines, if not actually known, are capable of ascertainment, and plaintiff’s deed in unmistakable terms, carries him to them. They are the only boundary called for on the southeast of lot No. 3.
The decree made on the 10th of November, 1914, denying plaintiff relief and dismissing his bill, will be reversed and a decree entered her§ perpetuating the injunction .awarded by the judge of the circuit court of Monroe county, in vacation, on the 27th of June, 1913.
Reversed and rendered.