55 W. Va. 681 | W. Va. | 1904
Frank Buck brought an action of trespass quare clausum fre-git against Harman Newberry, in the circuit court of Wyoming, county, for breaking and entering and cutting trees upon a close of Buck containing sixty-three thousand acres, part of a. tract of four hundred and eighty thousand acres of land granted by Virginia to Robert Morris, 23 d March, 1795. A deed from Phillip A. Trimble to Buck, under which Buck claimed, reserves-from the sixty-three thousand acre boundary four different tracts, which had been previously conveyed to other persons, aggregating fourteen thousand acres. Newberry pleaded the general issue of not guilty and the statute of limitations. A jury having found for the defendant, the court overruled a motion of Buck for a new trial based on the claim that the finding was-contrary to the evidence, and gave judgment for the defendant,., and Buck brought the ease here.
The case involves only questions of fact under a large amount-of oral evidence. Is the place where the trees were cut within the Morris grant? Is that place within or without the four tracts excepted in'the deed from Trimble to Buck? Did the-defendant cut the timber? Was the cutting within five years-before the suit? These are the questions. No actual possession being shown, it is admitted that to recover Buck had to show title to the ground on which the timber was cut, and to do this-he had to show that the Morris grant covered it. This was a jury question. It depended on oral evidence of surveys, corner-
There was no adequate evidence to show that the timber cut was not upon the land excepted in the deed from Trimble to Buck The burden was on Buck to show that the cutting was on his land, and as thousands of acres within the bounds of his deed were never conveyed to him, he must show that the timber was not on those excepted lands. Stockton v. Morris, 39 W. Va. 432. The cases given on the two hearings of that case will sustain this position.
As to limitation: The evidence shows that some of the cutting was barred, some not. The burden was on the defendant to prove the time of the trespass under this plea, and it was on him to show what part was barred. But this, except as a legal proposition arising on the record, is immaterial, as the verdict is beyond our reach for reasons above stated. We cannot act as a jury. Again and again has this Court said, that where the case' turns on questions of fact on oral evidence, the jury being the judges, almost uncontrollably, of its weight and effect, we should scarcely ever reverse a verdict. In State v. Sullivan, decided at this term, this subject is discussed, and it is held that where: there is some evidence, evidence worthy to be considered, fairly-bearing with some weight upon the matter involved, appreciably operative to sustain a verdict, so as to make the case turn on its; weight and effect, the verdict rightly ought to stand. Why does-the Constitution give the jury trial, if this be not so ?. It gives-it to both sides. -When the Supreme Court interferes, simply because its judges, if of the jury, would have found the fact otherwise, it is only an act of arbitrary power against the plain meaning of the Constitution. I insist that when there has been a fair trial of fact by a jury, and the verdict is approved by the-judge presiding, the opinion of that judge, who witnesses the-trial, ought to be highly regarded, is almost conclusive and final,, and rarely can be reversed. Smith v. Parkersburg Association, 48 W. Va. 232; Sigler v. Beebe, 44 Id. 587. As stated in Johnson v. Burns, 39 W. Va. p. 669, the code, ch. 131, sec. 9, only causes the evidence, not the ultimate facts merely, to be eerti-
Affirmed.
