126 Va. 223 | Va. | 1919
delivered the opinion of the court.
This is an action of ejectment in which Craig-Giles Iron Company was plaintiff and W. A. Wickline and others were
The plaintiff claims title under a grant issued in 1795 from the Commonwealth of Virginia to one Robert Young, for 15,000 acres. At the time of this grant the tract described therein was situate in the counties of Botetourt and Monroe in the State of Virginia, but owing to new State and county lines a portion thereof now lies in Monroe county, West Virginia, and the residue, involved in this litigation, in Alleghany county, Virginia. The defendants claim title under a grant issued in 1845 from the Commonwealth of Virginia to John Lewis for 279 acres in Alleghany county. The plaintiffs and defendants regularly connected themselves with the respective grants under which they claim. Both boundaries were composed entirely of wild mountain lands. At the time of the institution of this action in 1915, the defendants were in possession of the 279-acre -tract, and if the plaintiff proved that the portion of its 15,000-acre survey lying in Virginia embraces the whole or any part of the 279 acres, it' was entitled to a verdict, unless the defendants established a complete title by adverse possession. These -two questions, first, whether the plaintiff by sufficient evidence identified and located its own boundary, and, second, whether the defendants have acquired title by adverse possession, are the two principal issues in the case as it comes to us for decision.’
It is very clearly established by the evidence, although defendants contend otherwise, that the portion of the 15,-000-acre survey which now lies-in Virginia is within Alleghany county.
The only debatable question under the evidence is whether the lines of the 15,000-acre grant within the State of Virginia were so located as to include the whole or any part of the 279-acre tract. In this connection we may
Upon this branch of the case the trial court gave the following instruction: “The court instructs the jury that where a plaintiff in an action of ejectment claims, as in this case, that the land in controversy lies within the boundaries of the patent, and of the deeds under which he claims, that the burden is on the plaintiff to prove that the land in controversy is included within the outside boundaries of the patent and of the deeds under which it claims, and if the jury believe from the evidence that this burden has not been sustained by the plaintiff in this "case, they must find a verdict for the defendants.”
2. Coming now to the second question in the case, it will be necessary to state in some detail the evidence with reference to the adverse possession upon which the defendants are relying.
After the war Mrs. Lewis, the widow of John Lewis, who died in 1869, claimed the land as the devisee of her husband sold about 100,000 shingles therefrom to her sons, Henry C. and J. W. Lewis. The latter built a little house on the land and stayed. there while making the shingles. He employed seven or eight men. The record does not disclose just how long this work was in progress, but it appears to have been all done at one time, and could not have covered more than a few months. This was in about the year 1871.
In 1880 Mrs. Lewis sold all of the white pine and shingle timber on the -279-acre tract to Withrow & Nettleton. This firm erected shanties and stables on the land, constructed che.ap logging roads and cut and hauled away practically all the white pine. They were engaged in doing this from June to November (which according to the testimony of J. W. Lewis, was the longest period during which at any one time any part of the land was in the actual occupancy of anybody). '.During this period With-row & Nettleton had a sawmill on the land, operating the same for a while at one place and later moving to another. They did no clearing except around the shanties and skids, and had no extensive lumber yards on the property, the
From 1880 until 1896 nothing further was done on the land, and the premises remained vacant. In the meantime Mrs. Lewis died, and in 1895 the land was sold in partition proceedings to her son, John W. Lewis, who in 1896 transferred his purchase to his son, J. E. Lewis. He put up a small house or shanty which he thought from what his father told him was on the land, but this proved after-wards to be a mistake, and he never had any house on the land. He put a small sawmill, sawmill-shed and small lumber yard thereon and conducted a small operation, peeling bark, getting out switch ties, white pine plank and whatever he could sell, but says in his testimony: “I didn’t cut no great big amount; I cut all that I got bills for; it was very hard times.” He kept his mill on the place for about three years, and his lumber yard remained there for about three years longer. He apparently moved his mills in about 1899, and finished and cleaned up his lumber yard in about 1902. He found no one on the land when he put •his sawmill there, and he left nobody there when he moved away from the place.
From 1902, assuming that as the date on which J. E. Lewis cleaned up his lumber yard, to 1914, nothing further was done on the land, and in the meantime the premises again remained entirely vacant. In 1914 Lewis sold the land to W. A. Wickline, J. L. Wickline and A. P. Counts, the defendants in this action. They took possession of the land, but they found nobody there when they entered. There were.no clearings and no evidence of clearings, except enough to indicate that there had been “saw mill sets” there, and even these places had grown up in saplings. There were no buildings whatever on the laud, ths shanties and sheds and stables referred to in the evidence having either rotted down or been removed.
It was also shown that the Lewises from the emanation of the patent down to the date of the sale to the defendants claimed to be the owners of this land, and that the land was generally reputed in the neighborhood to be owned by the Lewises; and, further, that the land from the date of the patent down to the date of the sale, had been assessed on the land books to the Lewises, and the taxes thereon paid by them.
We are of opinion that while the foregoing evidence makes out a case of continuous claim to the 279-acre tract on the part of the Lewises from 1845 to 1915, it is wholly insufficient to establish title thereto by adverse possession.
These conclusions are abundantly supported by authority.
Again, in the same case (1 Gratt. [42 Va.] p. 206), it is said: “Payment of taxes, prohibition of trespasses, surveys of the land, sales and conveyances of it, though they may serve to show a claim of title, are not evidence of actual possession.”
In Overton’s Heirs v. Davisson, 1 Gratt. (42 Va.) 211, 225 (42 Am. Dec. 544), Judge Baldwin again delivering the opinion of the court, reiterated the above doctrine and said: “The court is further of opinion that where land has been granted by the Commonwealth to different persons by conflicting patents, the junior patentee cannot under any circumstances disseize or oust the older patentee from or acquire an adversary possession' of the land in controversy but by the actual occupation of some part thereof, or the use or enjoyment of some part thereof by acts of ownership equivalent to such actual occupation; and that while such patented lands remain completely in a state of nature, they are not susceptible of disseisin or ouster of, or adversary possession against, the older patentee unless by acts of ownership affecting a change in their condition.”
In Anderson v. Harvey’s Heirs, 10 Gratt. (51 Va.) 386, it was held that a temporary occupancy of the land in controversy for the purpose of cutting timber and converting the same into charcoal, though continuing for one or perhaps two years, could not operate as a disseisin and ouster of the holders of the better title.
In Koiner v. Rankin, 11 Gratt. (52 Va.) 420, it was held that while patented lands remain uncleared or in a state of nature, they are not susceptible of adversary possession.
In Turpin v. Saunders, 32 Gratt. (73 Va.) 27, Judge Staples delivering the opinion of the court said: “This court has repeatedly held that wild and uncultivated lands cannot be the subject of adverse possession whilst they remain completely in a state of nature. A change in their condition to some extent is essential. Without such change accomplished or in progress there can be no occupation, use or enjoyment. Evidence short of this may prove an adversary claim, but in the nature of things cannot éstablish an adversary possession; nor is there any reason for relaxing the rules of law on this subject in behalf of the adversary claimant of such property. There ought to be no presumption in his favor against the better title. As has been well said, ‘The inexorable operátion of these statutes (of limitations), disregarding as they do entirely the original merits of the controversy, furnishes a sufficient reason for excluding mere presumption of the facts which they require and for exacting clear and decisive proofs of their existence.’ ”
In Harman v. Ratliff, 93 Va. 249, 24 S. E. 1023, Judge Cardwell, speaking for this court, reiterated the doctrine of Taylor v. Burnsides, Overton v. Davisson, and the other cases above cited, holding that to operate a disseisin of one having right, the entry should be made under a claim of title with the intention of taking possession, and be accompanied with such visible acts of ownership as from their nature indicate a notorious claim of property in the land.
In Wilson v. Braden, 56 W. Va. 372, 49 S. E. 409, 107 Am. St. Rep. 927, it was held that there can be no adverse possession of wild lands as against a superior title unless such possession is actual, exclusive, visible and notorious; that a mere claim to possession, accompanied by the occasional cutting of timber,' the prevention of trespassers the payment of taxes, and the assertion of title, is not sufficient, but it must be such occupation, use, or holding of the property, or change in its character, as will make such claimant during such statutory period continuously subject to be treated as a trespasser by the holder of the superior title.
The remaining assignments of error are subordinate in any view of the case, and the conclusions already announced under there entirely negligible.
Reversed.