150 Va. 17 | Va. | 1928
delivered the opinion of the court.
This is an action of unlawful entry and detainerbrought by the Norfolk Southern Railroad Company against John T. Buchanan, Richard Buchanan and Roland Buchanan, which has been decided in favor of the plaintiff.
The trial court gave the jury two instructions — the first that “the plaintiff has proved valid record title to the property in question, and defendants’ sole defense is adverse possession;” and second, that “in this case the possession of the defendants was not adverse nor under claim of title until a few months ago, and it is the duty of the jury to disregard the defense of adverse possession now set up by defendants.”
The jury, in violation of these instructions, found a verdict in favor of the defendants, which the-trial court set aside and entered final judgment for the plaintiff.
If the instructions were correct, then of course the judgment is correct. That the jury were legally bound to obey them cannot be doubted. Bohlkin v. City of Portsmouth, 146 Va. 348, 131 S. E. 790, 44 A. L. R. 810; Vandenbergh & Hitch, Inc., v. Buckingham Apt. Corp., 142 Va. 397, 128 S. E. 561; Eastern Coal & Export Corp. v. N. & W. Ry. Co., 148 Va. 140, 138 S. E.471.
“All that certain lot or parcel of land containing fifty acres measured in a square and fronting on Chesapeake Bay between Cape Henry Light and Lynnhaven river, as shown by a plat attached as a part of this deed and which is to be recorded herewith, the said land being also marked out upon the ground by four stone posts set one at each corner of the said land, together with all rights and privileges thereunto belonging or in any way appertaining, save and except all rights of fishery from or in front of said land, which rights are hereby expressly reserved to the grantor and are not hereby conveyed.”
The deed contained the covenant that the property so conveyed should be used only for railroad purposes. Norfolk Southern Railroad Company, plaintiff, is the successor in title to Chesapeake Transit Company, the grantee in that deed, while the Cape Henry Syndicate is the successor of the Cape Henry Park and Land Company, grantor therein.
Cape Henry Park and Land Company, on January 17,1904, entered into an agreement with I. H. Buchanan, predecessor in title to the present defendants, leasing to him “all that lot of fisheries located on the shore of Cape Henry in the county of Princess Anne., extending from the Lynnhaven Inlet eastwardly along the said shore to a point opposite the ‘Stone Wreck.’ ” The area included in this lease embraced all rights of
This tenancy was renewed each year from its date to and including the year 1925, by I. H. Buchanan, during his lifetime, and after his death by the defendants, his successors in the operation of such fisheries.
Norfolk Southern Railroad Company, Cape Henry Syndicate and Atlantic Beach Hills, Incorporated, on July 16, 1925, entered into a contract whereby Cape Henry Syndicate conveyed to Norfolk Southern Railroad Company, plaintiff, all of its right, title and interest in and to the property described in the conveyance of October 24, 1900, particularly' the fifty acres therein mentioned, save and except the fishing privileges -.from and in front of said land, and agreed to release the covenant in the former deed, that the property thereby conveyed should be used for railroad purposes
Being in possession of the fisheries and fishing-privileges under the lease of January 27, 1904, and the yearly renewals thereof, Buchanan and the defendants, his successors, used a part of the fifty acre tract conveyed by the deed of October 24, 1900. In 1913, I. H. Buchanan, the lessee, was a member of the board of directors of Cape Henry Syndicate, successor in title to the lessor, and attended a meeting December 27th, at which a question as to the construction off the deed to the fifty acres here involved was considered. During the entire period, Buchanan and his successors, as lessees, paid to the Cape Henry Syndicate rental for the use of the fisheries. At no time did these lessees assert any claim of any ownership, right or title thereto against the owner of the fifty acre tract. While the defendants, or some of them, testified that they thought that no one owned the fifty acres, in. controversy, it is perfectly apparent from the written evidence that they knew they had no legal title thereto,, and that the property was owned by their lessor, or the. railroad company, as successor in title thereto. One Shepherd James had leased these fishing privileges before the Buchanan lease, and as incidental to his-fishing rights thereunder had constructed certain buildings thereon above high water mark, for his use-in connection with the fisheries and fishing privileges so leased by him. The shores were used in hauling-out the nets; for the housing of their fishermen; the storage, icing and preservation of fish; for the protection of the seines, fishing tackle and boats when not in use;for the transportation and delivery of fish across the-
During the period from 1904 to 1920, a rental of $600 per year was paid by the defendants. In 1920, Cape Henry Syndicate increased this rental to $750 per year, and the following letter, written at the time of the acceptance of this increase, shows conclusively that at that time the defendants, as tenants, placed the same construction upon their lease of the fishing privileges as had been placed by James, by their lessor, and as has been placed upon it by the court. This letter reads:
“Mr. Southall was in to see us to-day, and told us that the best that could be done for the Cape Henry property was $750.00. Now I think that is right much, as we will have to spend considerable on buildings, etc. As we are there, and all material, etc., on premises, besides the trouble and expense of moving elsewhere, will take the property at the above amount, $750.00. Hoping to hear from you soon, we are,
“Yours respectfully, etc.,
“John W. Buchanan & Sons.”
Prom 1920 to 1925, this increased rental was paid. Then on October 8, 1925, Cape Henry Syndicate, in acknowledging receipt of check for $750 for the 1925 rental, stated: “Your fishing plant is now located on property owned by the Norfolk Southern Railway. If they desire it moved, this would have to be done at your expense to a designated point on our property east of their fifty acres, or lease cancelled ratably for the time you have operated on this current year. It
The Norfolk Southern Railroad Company, plaintiff, contracted to sell the fifty acres in the latter part of 1925. The defendants came to the general superintendent of the electric division-of the company, in the spring of 1926, stating that they had heard that the company had sold this fifty acres, and asked if some arrangement could be made for them to stay on the property until the end of the fishing season. They made no specific claim of ownership at that time. When the party to whom the company had contracted to sell it notified the Buchanans of their purchase of the property, no claim was made of any ownership until several days after the purchaser started to make improvements. The prospective purchaser had previously entered upon the land, surveyed it, taking several days, and no claim of ownership was made then. Prior to that time, in 1923, the plaintiff com
Such legal use as the defendants have made of parts -of the fifty acres has been by authority of and in connection with their leases of fisheries and fishing privileges; and for these purposes have used exclusively only a very small portion thereof.
One of the assignments of error is that the evidence does not show that the fifty acre tract which the defendants claim to have held in possession is the same fifty acre tract which was conveyed to the plaintiff. The answer to this is that the deed upon its face, aided by proper parol testimony, is sufficient. In addition to this the admission of the attorney for the defendants, the testimony of the witnesses, the plats made by the surveyors, the claims made by the defendants, and the whole conduct of the case make it perfectly clear that the land above high water mark upon which all these structures are located is within the boundaries of the fifty acre tract. No one has been able to find the stone posts referred to in the original deed for the fifty acres, but there is no dispute between the holders of the record title to the adjacent land and the plaintiff here as to the precise boundaries of the tract. In this case, these precise boundaries are immaterial as between the defendants and the plaintiff.
If the attorney expected to make the point that the fifty acres claimed by the plaintiff under its deed was not the same fifty acres claimed by the defendants under adverse possession, this statement could not have been made.
Then one of the defendants, Richard Buchanan,, testified thus:
“Q. You live on the premises, do you not?
“A. I do.
“Q. This fifty acre tract?
“A. Yes, sir.”
It is unnecessary to recite the testimony of other-witnesses showing beyond peradventuré that the defendants are claiming by adverse possession the same-fifty acres, or part of it, which was conveyed to the
Another point made is, that if the defendants’ possession is unlawful, it has continued for more than three years. Of course, if this be true, this possessory action brought under Code, section 5445, does not lie. The determination of this question is vital and requires a consideration of the testimony oral and written.
The lease is of all rights of fishery from or in front of the land. We take it that the lessees needed no permission of the owner of the shore to fish in the public waters. What they acquired by their lease then was the right to a limited use of the land owned by their lessor above high-water mark, as incidental to the • fishery. What they paid for was the riparian right of fishery which was vested in the owner of the land above high water mark. The land conveyed to the railroad company was described as fronting on Chesapeake Bay, and the easement reserved was the right of their grantor to make a limited use of the land so conveyed above high water mark, that is, the right to such use as might be reasonably necessary of the land above high water mark as incidental to the exercise of the right of fishery “from or in front of” the land. This easement so reserved was leased to the defendants. These riparian rights of owners of such shores seem to be quite well settled in Virginia by the cases of French v. Bankhead, 11 Gratt. (52 Va.) 160; Groner v. Foster, 94 Va. 650, 27 S. E. 493; Waverly, etc., Co. v. White, 97 Va. 176, 33 S. E. 534, 45 L. R. A. 227.
In making the claim of adverse possession, the defendants say they did not think the land belonged to anybody. As indicating its necessary incidental use in connection with the fishery, this remark of one of the defendants is illuminative: “We were under the impression that piece of land didn’t belong to anyone. It was a piece of waste land; nobody seemed to claim it and it was not useful to anybody, or we thought it was not, and we thought it would be good in conjunction with our fisheries and we thought we would claim it.”
This seems to us to be an obvious inconsistency,.for if the adjacent land above high water mark didn’t belong to anybody, there was no reason for their paying rental for the privilege of fishing fromjor in front of it.
The principle involved is thus expressed in 2 Minor on Real Property, section 1033: “Finally, it is to be observed, that if the occupant’s possession was begun in privity with the rightful claimant, a higher degree of notoriety must attach to the possession than would be demanded if there were no such relation between the parties, for the privity is itself an explanation of the possession, and the rightful owner is not bound to seek another, unless notice of the fact of the disloyal severance of the privity be brought home to him. Hence, in such case, there must be a clear, positive and continuous disclaimer and disavowal of the title of the rightful owner, and the assertion of an adverse right brought home to the adverse claimant. The possession must have become tortious and unlawful by the disloyal acts of the party in possession, so open, notorious and continued as to show fully and clearly the changed character of his possession and notice thereof to the rightful claimant.” Hulvey v. Hulvey, 92 Va. 182, 186, 23 S. E. 233; Thompson v.
A fair consideration of these conveyances makes it perfectly manifest to ns that the use of such part of the fifty acres in connection with the fishery was by virtue of and incidental to the lease, and, therefore, that until a few months before this action was instituted that possession was lawful. It only became unlawful when the defendants repudiated the landlord’s title and claimed to own the property because of adverse possession.
Another assignment is based upon the refusal of the court to admit testimony that for many years the Buchanans had claimed the property. This testimony was inadmissible as against the plaintiff, because there was no such claim of title brought home either to the plaintiff company or to the Cape Henry Syndicate, or to the assignees of either, and because a tenant paying rent regularly cannot be permitted thus to question the title of his landlord. If such testimony could be admitted to defeat the record title, it would always be dangerous to permit a tenancy to continue for longer than the statutory period necessary to establish title by adverse possession.
It was the duty of the court to construe the documents — the lease and the deeds — -aided by appropriate parol evidence. They have been properly construed. Such possession of the land in controversy as the defendants had was incidental to their lease of the fishery. To have held that they merely had the right to use the land between high and low water mark would have destroyed the value of their, lease. The acceptance of 'the lease, entry thereunder and payment of the rent therefor constitute an admission that their lessor and its assignees were the owners of the
Affirmed.