120 Va. 74 | Va. | 1916
delivered the opinion of the court.
This case is a proceeding at law under Acts of Assembly 1912, p. 133, by the appellee, plaintiff in the court below, against the appellants, defendants in the court below, by the following petition:
“Your undersigned petitioner, Marion Bulbeck, respectfully shows unto the court that in accordance with an act of the General Assembly of Virginia, approved March 4, 1912, contained in chapter 74 of the Acts of 1912, page 133, she is filing this, her petition, in your honor’s court for the
“Your petitioner shows unto the court that by deed dated June 28, 1893, recorded in Deed Book VY, page 57, of Amherst county clerk's office, one John H. Lewis and wife conveyed to your petitioner a tract of 48 acres of land on James river, in Amherst county, it being the same land conveyed to said Lewis by John C. Mundy, trustee, in deed dated October 20, 1891, recorded in Deed Book TT, page 521, of Amherst county, and the same land conveyed to John C. Munday, trustee, by Drewry J. Christian and wife, by deed dated August 20, 1873, and recorded in Deed Book JJ, page 222, of Amherst county, and the same land of which Stephen W. Christian, the father of said D. J. Christian, conveyed his life estate in deed of September 2, 1868, recorded in Deed Book GG, page 194, of Amherst county, and being a part of the same land allotted to Moaning Christian, the grandmother of the said B. J. Christian, and at her death partitioned among her children, a copy of which partition is herewith filed marked ‘Exhibit X' (See Will Book No. 9, pp. 416 and 422).
“Your petitioner further shows unto the court that the true location of the lines between her and said Christians has never been fixed and determined and that recently there has been litigation and disputes between them as to what is the proper location of said boundary lines.
“Your petitioner further shows unto the court that one J. C. Fulcher, as tenant of said C. B. Christian and said S. B. Christian, is cultivating, for the present year, a portion of the land, which, as your petitioner alleges and charges, is a
“Your petitioner further shows unto the court that said C. B. Christian and S. B. Christian own said adjoining real estate in fee simple as two of the heirs of their father and as grantees of the remaining heirs; that originally the land of your petitioner and said Christians belonging to one Drewry Christian and allotted to his heirs and as dower to his wife Mourning Christian, of whom said C. B. Christian and S. B. Christian are descendants, and at the death of whom the said Mourning Christian was allotted the said tract of land contained in said plot filed herewith as ‘Exhibit X’, the other lands held by said Christians, adjoining your petitioner’s said......acres, being part of what was allotted to the heirs of said decedent.
“Your petitioner alleges and charges that the confusion in the location of this line is largely due to the fact that the parties owning the same' were related and no action was taken to determine what were the proper lines, and it has only been within the last two or three years that your petitioner was made aware of the fact that the true line had never been located.
“Your petitioner still further alleges and charges that she has made every possible effort to get the said Christians to agree upon the establishment of a line between the properties aforesaid; that she has even gone to the expense and trouble of purchasing the necessary material to build a proper fence so as to secure her own cattle and stock from trespassing and to prevent other people’s stock from trespassing upon her, but the said Christians have refused to agree upon a line or to permit her to put up a fence upon any line that has been run by surveyors employed by petitioner, going so far as to threaten violence toward any and all she employed to build such fence.
There was a demurrer to the petition by defendants on several grounds, only one of which, however, is relied on here, which ground is as follows:
“The remedy, if any, of the plaintiff is one in ejectment.” Counsel for defendants, in their petition, in amplifying this ground of demurrer, take the following positions:
“The act approved March 4, 1912 (Acts 1912, page 133), gives the right to any person having an interest in real estate, to file a petition, and ‘have ascertained the true boundary line or lines to such real estate as one or more of the coterminous land owners/
“It is submitted that this act does not substitute the petition therein provided for, for an action of ejectment. A party can not come into court alleging that she has had a survey made of the land, and knows where the true boundary is, and ask the court to confirm her opinion, because, forsooth, some adjoining land owner is unwilling to admit that she is entitled to a piece of land of which he and Ms predecessors have been in possession for seventy-five years.
“To illustrate: If A owns and occupies a lot which is fenced in and B claims and occupies an adjoining lot, like
“This view is strongly fortified by the fact that the act contains no provision for possession, or for damages for the unlawful possession. It is impossible to believe that if the intention of the legislature had been to settle all questions of title that it would have failed to provide for a judgment for the possession and for damages.
“Again, the court is restricted by the act to ascertain and designate ‘the true boundary line or lines/ What is the ‘true boundary line’? The word ‘true’ is defined to mean ‘real,’ ‘exact,’ ‘accurate,’ ‘correct,’ ‘right,’ and in this sense it is used in the statute referred to. The jurisdiction of the court is to find ‘the real line,’ ‘the exact line,’ ‘the accurate line,’ hence it could not consider any question of estoppel, act of limitations, or any other matter, which, under the law, would allow the party to claim what was not his ‘real,’ ‘correct,’ or ‘accurate’ boundary, and hence the defendant could not avail himself of the admissions of the plaintiff of his claim of title, or color of. title, adverse possession or other defenses which the law says avail him, no matter how defective his real, accurate, true title is.
“Where each party claims to know the real, true boundary, and a definite piece of land is in dispute, the question at issue is not one of boundary, but one of title.
“This view seems to have been held by the draftsmen of the petition in this cause, who felt called upon to aver therein that the true boundary lines had ‘never been fixed and determined/ (Rec., p. 3), although he filed with his
“The demurrer should have been sustained, and the plaintiff remanded to the proper action to assert title to the eight acres of land which she claims, but of which the defendants had possession and to which they claimed title.”
The court below overruled the demurrer, and such action is assigned here as the first ground of error.
In considering such assignment we are called upon to decide the following questions:
1. Did the act of Assembly, 1912, p. 188, give the court jurisdiction to pass upon the title to the land included in the boundary line or lines fixed by the judgment of the court in a proceeding under that act?
We think it did.
The act is as follows:
“Chap. 74. — An Act to authorize the ascertainment and designation of the boundary line of real estate.
“Approved March 4, 1912.
“1. Be it enacted by the General Assembly of Virginia, That any person having an interest in real estate upon petition filed in the court which would have jurisdiction in an action of ejectment concerning such real estate, shall have the right to have ascertained and designated by the said court, the true boundary line or lines to such real estate as to one or more of the coterminous landowners. All parties interested in the coterminous real estate shall be made parties to the said petition which shall be matured for hearing as provided for maturing an action of ejectment, except that it shall not be necessary to serve a copy of the petition.
“The trial shall be conducted as other trials at law and the same rules of evidence shall apply and the same defenses
The concluding provisions of the act, that “The judgment of the court shall, unless reversed, forever settle and determine and designate the true boundary line or lines in question, and be binding upon the parties to such petition, their heirs, devisees and assigns,” seem to us to be conclusive of this question and to decide it in the affirmative.
The act also provides that, “The trial shall be conducted as other trials at law and the same rules of evidence shall apply and the same defenses may be made as in other actions at law * * *” (Italics ours.) Hence, adverse possession, whether with or without color of title, under a plea of the statute of limitations, is a defense which may be made under such act.
2. As to what “interest in real estate” in the plaintiff is necessary to enable him to institute an action under the statute, or as to what cases of controversy over boundary line or lines of land involving dispute as to the title of the land included therein, the act applies, or as to what other defenses may be made in such a proceeding, we do not at this time decide, because not necessary for the decision of the case before us; except that we are of opinion and do
We are, therefore, of opinion that the court below committed no error in overruling the demurrer.
There was a trial by jury in the case,-and a verdict and judgment in favor of the plaintiff, fixing the boundary lines as claimed by the latter as the true boundary lines between her land and that of the defendants; thus, in effect, determining that the land between the lines as claimed by the plaintiff and those claimed by the defendants, consisting of about eight acres, belonged to the plaintiff.
There are the following other grounds of error assigned in said petition:
a. The refusal of the court below to set aside the said verdict and grant a new trial;
b. The refusal of such court to admit in evidence a certain plat found spread on the official surveyor’s book of Amherst county of 1808 to ....... p. 116, in what defendants claim was the handwriting of H. L. Brown, who was at one time assistant surveyor of Amherst county, but now deceased, bearing no date or signature of any surveyor, or statement thereon with respect to the identity of the land it included, except the lines of the plat and courses and distances thereon and natural landmarks noted thereon, such as James river, Christian’s island, the acreage of the latter as 131/2 acres, “up the branch”, “Gate at the Dwelling House” &c., “Pointers Dogwood, Gum & White Oak,” “White
c. The giving of certain instructions, A, B, C and D, for plaintiff.
d. The refusing of certain instructions numbered 1 to 7 inclusive, offered by defendants.
Before considering the questions arising upon these assignments of error, we will state briefly the salient facts in the case bearing upon such issues.
The plaintiff and defendants derive title from a common source, Drewry Christian, who died in 1818. The following plat shows the dividing boundary lines, which we have indicated by the letters A, B, C, D, E, which are in controversy in this proceeding.
Plaintiff derived title as alleged in her petition to lots No. B and No. 4 shown on such plat, and there is no conflict
in the evidence that for about sixty-seven years prior to this suit, that is, up to about three years before such suit, neither the plaintiff nor any of those under whom she claims title, exercised any acts of ownership with claim of title beyond the location on the ground of the lines A, B, C, D, E, as marked by an old rail fence, from a very early time, not definitely fixed by the evidence, and later by a well defined hedgerow of trees and other growth, such as plainly
The defendants derived title by descent and conveyances to lots No. 2 and No, 5, and the land adjacent and to the northwest and north of these lots, known as the “Burks tract,” tracing their title back also to said plat “Exhibit X” as to the portions of said lines A, B, C, B, E, which lay from A to B and from B to E, and tracing their title back of such plat to the portion of said lines which lay from B to C; and the uncontradicted proof is that they claim and have claimed, for at least seventy years prior to the institution of this suit, title up to the said old fence and hedgerow location of said boundary lines, and they claim also that such is the true location of such lines according to said plat “Exhibit X.”
In the chain of title of defendants, prior to the said division of said dower tract and plat, “Exhibit X,” there is a deed from Mary Burks and husband of date January 9, 1818, which conveyed to C. M. Christian, the father of defendants, the said “Burks tract.” The Burkses derived this land from Brewry Christian in the division of his land in 1818, when the Mourning Christian dower tract was also assigned.
The Burks deed, therefore, gave the defendants color of title, if not title, to that portion of the strip of land in controversy which lies from B to C to D, along the said line A, B, C, D, E. If the true location of the line A, B, C, D, E, as designated on said plat “Exhibit X” was as claimed by defendants and as shown by said old rail fence and hedgerow, the Burks deed gave to the father of defendant and also to those claiming title under him by descent as aforesaid, title to such line. If the true location of such line was as claimed by plaintiff, still, as the metes and bounds called for in the Burks deed extended beyond and over the line as claimed by plaintiff to the line as claimed by defendants, it gave the latter color of title to such location on the ground of the line B to C to D, as claimed by them.
.As to the possession of defendants, it is deemed sufficient to say that regarding this case as upon demurrer to evidence by defendants, ‘the evidence for defendants as to possession is not of that specific and definite character which is essential to prove the pedis positio, or actual possession, of the strip of land in controversy, or any part of it, for the statutory period, necessary for the application of the bar of the statute of limitations where the defendants have no title or color of title. That is to say, such testimony goes to the extent of proving open, notorious, actual, hostile and uninterrupted or continuous possession by defendants for at least seventy years only of some portion of the Burks tract, which, under said title or color of title, gave them construe
“Q. Colonel, how long have you and your sister held this land of yours, I mean especially the strip of land” (in controversy) “and how have you held it, if you did hold it? A. We have held it adversely for seventy years to my knowledge and I believe for many years before that by my forefathers, certainly back to the Drewry Christian division of 1815 or 1818, had uninterrupted possession, notorious, open and actual against Miss Bulbeck and the world * * *”
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“Q. Do I understand you to say that you and your sister have had adverse possession of all the land on your side of Miss Bulbeck’s fence (when I say adverse you as a lawyer know what I mean) for the last seventy years? A. I do.”
It is true that this was a statement of a conclusion of the witness and not of the specific facts on which the conclusion was based, but it was not excepted to and the other testimony in the case does not contradict its accuracy in so far as it refers to possession of parts of lots 5 and 2 and the Burks tract not included in the strip of land in' controversy.
Col. C. B. Christian's testimony therefore shows the possession above indicated by him and his sister with the definite and unconditional claim of° title and ownership on their part, and the intention to so claim title to the line A,
Miss Sallie B. Christian’s testimony shows the same, only she adds: “Of course, we did not want any land but that which belonged to us; we would not have any land other than that that belongs to us, we intended only to hold to the true line wherever it was.”
Now as to the location- on the ground of the “Gate near, the Mansion House,” called for as a corner on said plat, “Exhibit X,” and the actual location on the ground of the line A, B, C, D, E, in accordance with such plat. Col. C. B. Christian is not. contradicted in his testimony that he remembers this line as far back as “seventy years at least since I can first remember,” which would place his personal recollection back to 1843, six years after said plat “Exhibit X” was made; and he says: “These lines are as near as can well be where Miss Bulbeck’s present fence is, * * ~r'
“Q. How do you know this? A. I know it by survej/s properly located, and also by what * * * Uncle Stephen Christian, who owned Miss Bulbeck’s lands, as well as what Drewry J. Christian, his son, all of them told me. They all said the rock or gate referred to in H. L. Brown’s plat of Mourning Christian’s dower * * * shows the true corner and starting point, and the only known or well established corner between these lands. These old people all recognize this as the corner, and this rock is not a movable rock,.but is one called a tight rock, and juts out on top of the land, and the lines between our lands and Miss Bulbeck’s land take this rock as a corner, and run approximately with Miss Bulbeck’s present fences, and were so recognized as the true lines by our family, and Uncle Stephen Christian, who owned lots No. 3 and No. 4, and at his death fell to his son, D. J. Christian, my ‘first cousin. At or within a few feet of this rock was a gate, and I remember that there one of my aunts, who was riding horseback through this gate,
Mr. Garland, a civil engineer, was appointed by the court below to survey and report upon the lines in controversy. He reported in favor of the lines as claimed by plaintiff, and testified that in his opinion such location is the true location on the ground of such lines. He filed a plat showing thereon in yellow lines the location on the 'ground of such lines as claimed by defendants and in red line the location on the ground of such lines as claimed by plaintiff.
Mr. Garland's testimony pertinent to the issues in this case was as follows:
“I am surveyor and engineer by profession, live in Lynchburg, and have had several years’ experience as such, and am a graduate of Virginia Military Institute. * * * At the request of Col. C. B. Christian I started at what is known as the rock corner, near Miss Bulbeck's residence, claimed by the defendants as the corner, and ran the lines first northeast, and thence to the river, which lines approximately in shape and location fitted the present fences between Miss Bulbeck and the Christians, that is I mean the line between the Burks tract of north 48 poles or the old line north 44 east, 48 poles to corner of lot No. 2; thence S. 46 east 78 poles, or the old line south 50 east 78 poles, the difference being in bearing to corrected change on account of the variation in needle of instrument in time of two surveys, and I found these two lines approximately fitted the present fence on the ground. I then ran from the rock corner north 35 west 9 poles, and thence south 61 west or the old bearing, south 57 west, 58 poles towards S. B. Walker's line, which distance ran over the fence between Walker, Bulbeck and Christian at the northwest corner of Marion Bulbeck’s-poles. I then started at the end
By Counsel for Defendants:
“Q. Mr. Garland, your survey and conclusion, as I understand, are the result of starting at James river, at the supposed corner of Walker and Miss Bulbeck? A. Yes, sir.
“Q. If the bank edge of James river has changed since 1815 or 1818, the date of the division of the old Drewry Christian estate and the present bank, or where you started, is not the true or correct starting point, then are your conclusions and survey correct? A. Of course if the river has changed, and my starting point wrong, the location of the red lines on my plot would also be wrong.
“Q. In locating the lines from the supposed rock corner northeast, claimed by the Christians as the true corner, did Col. Christian not point out to you what he claimed to have been the location of an old barn on the northwest side and about half way of the line north 44 east 48 poles, which barn he claimed to have been there from the time he could remember up to several years ago, and which he claimed was a few feet on his side of the true line, between him and Miss Bulbeck. If this barn was on his side of the true line, as claimed by him, then the line as located by you was through the barn site or location on Miss Bulbeck’s side was it not? Would not this show that your conclusion is wrong? A. Well, it might.”
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“Q. On your map the yellow lines about correspond, as I understand, with the present fences of Miss Bulbeck, do they not? A. Yes, they do.
“Q. Where you located the red lines on your map, did you find any landmarks whatever fitting the bearings and distances? A. No, I did not.
Mr. DeMott, a surveyor, also testified for plaintiff as follows:
“I surveyed the Bulbeck two'lots * * * I ran from the rock as pointed out by Col. Christian, both ways, and my lines practically fitted Miss Bulbeck’s fence, as at present. Then I ran the Walker line from the river and came to the conclusion that Miss Bulbeck’s line should be located from the river and go out on the Christian side as indicated on Mr. Garland’s plat by the red lines; my measurements agreed with Garland’s as far as, I made them. I made no measurement on the river; I think Mr. Garland’s are correct in his survey, and conclusions. I should say that the trees on the river on the Bulbeck side are seventy-five years old.
“"Yoü can get lots No. 2, 3 and 4 on the ground; the land is there; Mr. Garland’s survey is correct. If rock is right all else is wrong and acreage to Miss Bulbeck is too small and Colonel’s too much. My survey and conclusions check with those of Mr. Garland, in every respect. Garland’s estimate is correct; a discrepancy of one-fourth of an acre does not mean that the lines are wrong in making such survey. In my judgment Massie is not right and Garland is right. There are indications that James river has not changed from the trees, etc., from 75 to 100 years old. In surveys on rivers like the James the line starts at the low water level and not out in the water. My experience is that in surveying on James river there is very little change in it as evidenced at Pearch and other places. At Miss Bulbeck’s land there is an inland that extends up beyond the starting point of her survey which Garland established by the red line, and that island serves to protect her land from washes by the river. I found the Walker line marked, but I found no hedgerows or fences to indicate any ancient line.
Cross-Examination.
“If the river has changed in the last seventy-five years of course the starting point on the Walker line is wrong, and then the conclusions arrived at by Mr. Garland and myself are also wrong.”
Re-Cross-Examination.
“No one showed me the barn claimed by Col. Christian, or its side. The plat calls for gate but no rock on the H. L. Brown survey of Mourning Christian’s dower.”
C. G. Massie, a surveyor and witness for defendants, filed a plat locating the lines in controversy A, B, C, B, E, as claimed by defendants. His testimony pertinent to the said issues was as follows;
“I am county surveyor of Amherst county * * * I began the survey at rock or stone claimed by Col. Christian to be the comer near the com house, supposed to be where the gate is called for near mansion house on H. L. Brown’s plat. I ran the lines from that point both ways, and taking that as a comer I found the bearings and distances fitted pretty well the present fence of Miss Marion Bulbeck, thus indicating that whoever put up the fence hit the lines pretty well. I also surveyed the Burks tract, and found evidence
Examined by Counsel:
“I have had little experience in surveying on James river. The lines in controversy are short when run from the river to Colonel’s proposed line on the rock basis. I don’t know anything about whether James river has changed or not. There are no marked trees or otherwise, that indicate the Burks line extending from the mansion house. There are
We come now to consider the several assignments of error, which we will take up in their order above stated.
a. The refusal of the court below to set aside said verdict and grant a new trial.
1. We are of opinion that the verdict was contrary to the evidence in this, that the jury fdund and fixed the true boundary lines in question in accordance with the said survey and plat made by H. G. Garland, and such survey and plat entirely ignored the uncontradicted testimony of Col. Christian as to the location on the ground of the “Gate near Mansion House,” and fixed that corner altogether by the length of the lines thereto from the Dillard branch on the one side and the Walker boundary line as this surveyor found it marked on the ground on the other side, giving undue weight to mere length of lines called for on said plat, “Exhibit X,” as compared with the monument of the location of the “Gate near Mansion House,” evidenced by the “tight rock” in practically the same place, as per Col. Christian’s uncontradicted testimony; also in ignoring the existence of the reputed boundary line called for on said plat as marked by the old rail fence and hedgerow along the line in controversy, and making the existence of the present location of the reputed boundary of the Walker line outweigh and set at naught the existence of the old rail fence and hedgerow; also in making the length of the lines
As was said by Judge Pendleton in Shaw v. Clements, 1 Call. (5 Va.) 438, “our juries generally and wisely establish reputed boundaries, disregarding mistaken descriptions.”
And in Herbert v. Wise, 3 Call (7 Va.) 242, it is said: “To pursue the proper description of our land boundaries would render men’s titles very precarious, not only from the variations of the compass, but that old surveys are often inaccurate.”
As held in Summerfield v. White, 54 W. Va. 311, 315, 46 S. E. 154, 156, “If a monument called for by the deed is
Applying the rule announced in the West Virginia case last cited to the monument, the “Gate near Mansion House,” in the case at bar, its location, as testified to by Col. Christian, became established. This corner called for in the plat, “Exhibit X,” being thus fixed, that corner became a marked monument; James river was a natural landmark; the reputed boundary of the lands in controversy was marked by the old rail fence or hedgerow. The dividing line in question, when located according to said plat, “Exhibit X,” if the corner last mentioned is fixed as next above stated, corresponds on the ground with the line A, B, C, D, E, as claimed by defendants, and the only discrepancies that would then exist between such location and such plat would be the length of the lines of the plaintiff’s land, those running from the river northwest being too short by about 150 feet, and the length of the lines running on the one side of such “Gate near Mansion” corner to Dillard’s branch being too long by about 99 feet, and on the other side of such corner to Walker’s line, as now marked on the ground, too short by about .... .feet; and the acreage of the plaintiff’s land being about 40 instead of about 48 acres, as called for in said plat. However, the rule on the subject is too well settled in Virginia to need a citation here of the authorities, that in such case distance or length of lines called for on the plat must give way to the fixed comer of the “Gate near Mansion,” and the reputed A, B, C, D, E, boundary ; that acreage called for must also give way to this data; and the correct location of the boundary line in dispute, according to the well settled rule in Virginia referred to, is the A, B, C, D, E line as claimed by defendants. The verdict of the jury was plainly in conflict with this rule, even regarding the evidence under the rule applicable to demurrer to evidence by defendants.
This view of the case results in our having to reverse the action of the court below on the assignment of error under consideration, and the granting of a new trial. Ordinarily such holding would call for no further opinion from us upon the other assignments of error in the case, but as upon a new trial it seems that the following questions raised by such assignments of error will again arise and have to be passed upon by the court below, we feel constrained to deal
As to—
b. The refusal of the court to admit in evidence the plat referred to above under this heading.
The court below was right in refusing to admit this plat in evidence. This plat was not referred to in or made a part of any part of the chain of title of defendants or of the plaintiff, and hence was not admissible as evidence of the extent or location of the metes and bounds covered by the true title.
For the same reasons it was not admissible on the question of the extent or location of the metes and bounds covered by the color of title of defendants. Sulphur Mining Co. v. Thompson, 93 Va. 293, 25 S. E. 232.
c. The giving of certain instructions, “A,” “B,” and “C,” for plaintiff.
Such instruction “A” was as follows: “The court instructs the jury that where one person relies upon the acquirement of land, rightfully belonging to another, by adverse possession, such adverse possession must possess the following elements as shown by a preponderance of testimony; (1) The possession must last during the period of the statute (that is, for fifteen years- prior to the institution of suit, concerning lands situated in Amherst county); (2) That such possession should meanwhile have been continuous and uninterrupted; (3) That it must be free from fraud; (4) That it should have been visible and notorious; (5) That it should have been exclusive; (6) That it should have been hostile; and (7) That it should have been actual. And, therefore, as applying to the case at bar, unless the jury believe by a preponderance of evidence that the defendants have held the land in controversy in accordance with said elements or requirements, each and every one,
“See Minor or Real Property, Vol. II, page 1103.”
1. This instruction disregarded the right of defendants ■ to tack their possession to the possession of those under whom they claimed and derived title. However, in view of the testimony for defendants on the trial of the case, to the effect that such possession as they proved was by themselves, the omission in the instruction of the reference to possession of those under whom they claimed title was not error.
Such instruction “B” was as follows: “The court instructs the jury that where a person occupies and possesses the land of another through a misapprehension or mistake, as to the boundaries of the land, with no intention to claim as his own that which does not belong to him, but only intending to claim to the true boundary line, wherever that may be, he does not hold” adversely, and the reason why this is so is because in this State intention to hold adversely is an indispensable requisite to adverse possession, and such intention is then wanting; and, therefore, if they believe from the evidence that the defendants occupied and possessed the land in controversy through a misapprehension or mistake as to the boundaries of their lands, with no intention to claim as- their own that which did not belong to them, but only intending to claim to the true line wherever that may be, they must find for the plaintiff.
“See Schaubuch v. Dillemuth, 108 Va. 86, 60 S. E. 745, 15 Ann. Cas. 825.”
2. This instruction correctly expounds the law when stated in reference to a case to which it is applicable; indeed, the precise language employed in this instruction may be found used-by this court in its discussion of the cases in which the rule that intention to hold adversely is an essential element of adverse possession. The error in this
The proposition of law embodied in this paragraph is good and sound in principle only where the case is one where the fact is that no intention to hold adversely up to the boundary line on the ground in question exists or is proved. In a case of absence of proof of such intention, possession taken through a misapprehension or mistake as to the boundary of land, with proof only of a general intention to claim only what belongs to one, as may be determined by the true boundary, wherever it may be, the mistake explains the possession and there is an absence of proof of the fact that the intention to claim adversely exists. Similarly, if the possession up to a given boundary is taken under a parol agreement between adjoining land owners that the line is not the true boundary line, there is an absence of an intention to claim adversely on the part of one taking possession under such an agreement. And the cases in which there may be an absence of the intention to claim adversely, i. e., where the possession may be explained as consistent with the absence of such intention, are as various and as innumerable as are the mutations of human affairs. No especial significance, therefore, is to be given to the taking of possession under a mistake as to the true boundary, nor any especial or conclusive presumption is to be inferred as resulting from it. It is merely an explanation of the character of the possession taken under such circumstances, which in the absence of proof of spe
On principle this is necessarily true. And to give to the fact that possession once taken, under a mistake as to the true boundary, may not in some cases, at the very time of taking possession under such mistake, be accompanied by the intention to claim title adversely, or if not at such time so accompanied, may not afterwards change its character, on the part of the original possessor, or subsequent possessor claiming under him, would be a confusion of ideas and would be to lose sight of the fact that the inquiry always, in a case of alleged adverse possession, is, with what intent is it in fact held? In other words, was it with claim of title? It is true that if originally taken under a mistake, and with the conditional intention only, above referred to, in the absence of proof of a specific intention as to the extent of the claim of title, or of a later or changed and specific intention, it will be assumed that there has been no change in the intent. What is not proved cannot be assumed to exist. It is also true that as between parties and privies a possession originally taken in subservience to another’s title cannot be changed into an adverse possession without proof, not only of a subsequent specific intention to claim adversely, but such proof must go to the extent of bringing home notice of such intention to claim adversely to the owner of the dominant estate, or be of such a character that such notice will be presumed (Creekmur v. Creekmur, 75 Va. 430, and other cases on this subject). Still, the fact remains that, if in a given case there is proof of such specific intention to claim adversely, and there is no complication arising from the possession having been taken originally by agreement or in subservience to a dominant estate, (or, if there is such complication, the facts are such that notice of the intention to claim adversely is
On principle no other position can be in accordance with the spirit and intent of the statute of limitations, or indeed with the strict letter of the statute. On authority we find the same to be true.
The leading case in Virginia on the subject of possession taken by mistake is that of Davis v. Owen, 107 Va. 288, 58 S. E. 581,13 L. R. A. (N. S.) 728. In that case there was an express disclaimer, on the part of the school trustees who took the possesion relied on by the defendants as adverse, of any intention to claim title beyond the true boundary. The defendants had had only eight or nine years’ possession themselves, not sufficient to apply the bar of the statute of limitations. Hence, there was in that case an absence of proof of an intention to claim adversely existing, coupled with possession, for the statutory period, and what is said by this court in that case must be read as applicable only to the case before the court.
This subject of possession taken by mistake is referred to in the case of Haney v. Breeden, 100 Va. at pp. 783-4, 42 S. E. 916, 917, and it is there made plain that in such cases the real inquiry always is whether the possession was with or without the intention of claiming title, this court saying: “It is true adverse possession depends upon the intention with which the possession is taken and held; and while the intention to claim title must be manifest, it need not be expressed. But whether or not the plaintiffs took possession by mistake or without the intention of claiming title is a question for the jury * * *”
In the case of Schaubuch v. Dillemuth, 108 Va. at pp. 91-2, 60 S. E. 747, 15 Ann. Cas. 825, this court said: “The evidence, considered upon the demurrer to It, mani
In the case of Clinchfield Coal Co. v. Viers, 111 Va. 261, 68 S. E. 976, the plaintiff, relying on adverse possession, recognized the location of the line in controversy as claimed by the defendant as the true line “by deed of July 23, 1904, in which he unites with others in conveying to the grantee all the coal on a certain tract of land, the boundary lines called for in the deed going exactly to and no further than the” line as claimed by defendant. This was within the statutory period before the institution of the suit. It was not a case, therefore, in which the fact was that there was a specific intention proved to exist on the part of the possessor to claim title to a definite line on the ground in fact beyond the true line. What is said by this court, therefore, in that case must be read in the light of the case before the court. (See also Stuart v. Meade, 119 Va. 753, 89 S. E. 866.)
The cases elsewhere are not in harmony on this subject, but the conflict is more seeming than real. It is believed that the considerations on principle above suggested, and the further consideration that much of the conflict on the subject arises from the different presumptions which the courts entertain at the beginning of their reasoning as arising from the proof only of possession, without express proof of intention to claim title to a definite boundary as looated on the ground, will go far to harmonize them.
In Virginia, proof of an expressed intention to claim title is not necessary. Haney v. Breeden, supra.
It is said in Ross v. Gould, 5 Me. (5 Greenl.) 121: “* * * a disseisin cannot be committed by mistake, because intention ❖ * * is an essential ingredient in a disseisin.”
As is said in French v. Pearce, 8 Conn. 439, 445, 21 Am. Dec. 680, “the intention of the possessor to claim adversely is an esential ingredient * * * yet * * * the person who enters on land believing and claiming it to be his own * * though under a mistake, * * * does thus enter and possess. The very nature of his act is an assertion of his own title and the denial of the title of others. * * * it is certain that a disseisin may be committed by mistake as that a man may, by mistake, take possession of land, claiming title and believing it to be his, own. * * * Adopt the rule that an entry and possession under claim of right, if through a mistake, does not constitute an adverse possession and a new principle is substituted. The inquiry no longer is whether visible possession, with the intent to possess^
In Seymour v. Carli, 31 Minn. 81, 84, 16 N. W. 495, 496, after conceding that the parties, when possession was taken, made a ¡mistake as to their boundaries, the court said: “The object of the statute is to quiet titles and end disputes. If the plaintiffs have a cause of action in ejectment, there would seem to be no good reason why the statute should not run against it, as in other cases where the possession of land is withheld. It is the policy of the law that parties should assert their claims to the possession of land and rectify their boundaries within the statutory term.”
A collection of many recent cases on this subject will be found in the note of the learned annotator to 33 L. R. A. (N. S.) 923, et seq., where the varying views of the different courts in recent cases will be found. The conclusion of the annotator is that, “the old idea that there could be no disseisin b'y mistake is now abandoned,” and that “the trend of opinion is against disturbing him whose visible bound-arises have existed for the period of the statute of limitations.”
On the whole, the correct rule, and the rule in Virginia, may be taken to be. that, where the proof is that the location of the line in question was caused in the first instance by a mistake as to the true boundary, the other facts and circumstances in the case must negative by a preponderance of evidence the inference which will otherwise arise that there was no definite and fixed intention on the part of the possessor to occupy, use and claim as his own the land up to a particular and definite line on the ground. That is to say, on the whole proof a case must be presented in which the preponderance of evidence as to the character of the possession, how held, how evidenced on the ground,
The collateral question whether the possessor would have claimed title, claimed the land as his own, had he believed the 'land involved did not belong to him, but to another, that is, had he not been mistaken as to the true boundary line called for in his chain of title, is not the proximate but an antecedent question, which is irrelevant and serves only to confuse ideas.
The verdict of the jury in the case at bar is an illustration of the effect that results from a confusion of the circumstance that there was a mistake in the original location of the lines in controversy (if there was in fact such a mistake, which would be but a single circumstance after all, which should have been considered by the jury in determining whether the fact of an intention to claim title up to such boundary lines existed in the possessor for the requisite statutory period) with the broader consideration of whether on the whole case the evidence shows that such intention to so claim title existed. That is to say, it seems clear that the jury, under the instruction under consideration, drew from the presumption that arises from such a single circumstance, a conclusive inference that in such a case no intention to claim title to the boundary as located on the ground could at any time exist. This was to base an inference upon a presumption, which this court has held in another line of cases cannot be done. (C. & O. Ry. Co. v. Heath, 103 Va. 64, 48 S. E. 508.) And under such
Our conclusion, therefore, is, on the instruction “B” under consideration, that the court below erred in giving it in this case; and that while its language is abstractly correct as applicable to a proper case therefor, it would be a better practice in any case for any instruction or instructions on this subject to be in a different form, so as tó present for the consideration of the jury, in dealing with this subject, the main and broad question, whether the intention to claim title — to claim as his own the land — up to the line or lines in controversy on the ground in fact existed, along with the acts of possession relied on by the
Instruction “C” was as follows: “The court instructs the jury that while the quantity of land mentioned in the deed will not control the boundary when estimated by the description, nevertheless a correspondence of quantity given by a line in question with the. quantity mentioned in the deed or in the approximation thereto, may be considered as going to establish such line as the true one.”
3. We think that this instruction gave too great prominence and weight to the mere acreage. Instead of instructing the jury that the quantity of land may be considered “as going to establish such line,” it would have been better for the court to have said it may be considered “as a circumstance bearing upon the establishment of such line, but one of less weight than natural monuments or corners or reputed boundaries called for in the plat, ‘Exhibit X’ filed with the plaintiff’s petition in this case.”
Instruction “D” was as follows: “The court instructs the jury that if they believe, in the light of all of the evidence, that the boundary lines between the parties hereto have been properly determined and laid off by Mr. H. G. Garland, the surveyor appointed by the court to make the survey herein filed, in accordance with the plots and metes and bounds attached to or referred to in deeds and other muniments of title under which said parties claim their respective rights and title to the lands in question as introduced in this case, then the court further instructs the jury that if they believe from the evidence that these lines have by mistake of the parties hereto or their grantors or predecessors in title become confused so that the defendants have in consequence taken possession of a part of the land
It is deemed sufficient in this case to say—
4. We think that this instruction is erroneous because of its adoption of a wrong view of the effect of a mistake in the original location of boundary lines, as above set forth.
We come now to consider—
d. The refusing of certain instructions numbered 1 to 7 offered by defendants.
1. As this opinion has been sufficiently prolonged, it is deemed sufficient to say on this subject that all of these instructions were properly refused, it appearing from the record that the other instructions given for the defendants fairly submitted their theory of the case to the jury.
We have not reviewed the cases of Hamman v. Miller, 116 Va. 873, 83 S. E. 382, and Wright v. Rabey, 117 Va. 884, 86 S. E. 71, because they are not directly in point upon any of the questions involved herein; but the manner in which the statute in question was dealt with in those cases tends to support the conclusions reached in the present case.
For the reasons stated above, we are of opinion to reverse the judgment complained of, set aside the verdict of the jury, and grant a new trial, to be had not in conflict with the views above expressed.
Reversed.