130 Va. 711 | Va. | 1921
delivered the opinion of the court.
The second assignment of error is to the action of the trial court in admitting in evidence a certain plat and blue print and certain drawings over the objection of the defendant, and in overruling the defendant’s motion to strike the same from the evidence. Plaintiff and defendant claimed under a common grantor but the plaintiff held the older deed and hence the superior title to the land within his boundaries,' but there was a dispute between them, as to the true location of the beginning corner of the plaintiff’s title and the next succeeding corner, and the plaintiff also claimed that the defendant had ignored some of the calls
The plat and blue print had been made by a surveyor, Thacker, in 1910, three years before the present controversy arose. Thacker was not examined as a witness in the case, but the plaintiff testifies that the map was correct “according to the records” and he thought was correct, though he admitted on cross-examination that he did not see Thacker make the map, was not present when he located the lines on the map, he was not a surveyor, and did not know how to use a compass. As to his own drawings the plaintiff further testified that he made the drawings aforesaid, and copied them from the Thacker map, and time and again testified that his drawings were correct (although he did not run the lines nor locate them with a compass) and truly represented the location of the points in dispute. With his own title deeds before him and also the deed under which the defendant claims, and reading the calls of his deeds he pointed out the location on the drawings of each of the disputed calls and also of the triangle cut off by the omission of certain calls in his deed. The drawings made by himself enabled him to give a more graphic description of the disputed points than he could have done by mere oral statements. There is no dispute
It is assigned as error that the court modified two of the instructions offered by the defendant and refused to give them except as modified. The error, if any, is not pointed out; but even if adequately assigned, no error was committed in making the change. The modification was slight and simply applied the instructions to the evidence in the case.
The refusal of the trial court to give certain instructions tendered by the defendant relating to the duty of the plaintiff to minimize his damages constitutes the sixth assignment of error. This has already been sufficiently dealt with.
The judgment of the trial court will be affirmed.
Affirmed.