76 W. Va. 461 | W. Va. | 1915
In ejectment, plaintiff recovered judgment for the possession of 2 1-2 acres of land situate in Taylor county and $450 damages for its detention; and defendant, for reversal, assigns uncertainty in the verdict and excessiveness of the quantum of damages awarded.
The declaration describes the tract as “beginning at a dogwood and running thence S 63 E 32 to a chestnut, thence S 55 W 28 to Pleasant creek, thence N 10 W 31 1-2 to the beginning”. These are the calls in the deed for the same land from Knotts to Bartlett made in 1864. The deeds from Bartlett to Loudin of June 13, 1902, and from Loudin to plaintiff of March 16, 1907, described the land, not by any definite courses and distances, but as “lying on the waters of Pleasant creek, bounded on the south by lands of B. F. McVieker, on the east and north by lands of C. E. Conway,
Not finding the dogwood called for as the beginning corner, Morrow, the county surveyor, to whom the case was referred with direction to do any surveying required by either party, began at the chestnut and, with corrections for magnetic variation, ran the second call S 57° 24’ W 28 poles to a stake on •a bank designated by defendant as the bank of the old creel;: bed; thence N 7° 36’W 508 feet. Returning to the chestnut, he ran N 60° 36' W 31.75 rods, that being the call from the dogwood corrected and reversed to the chestnut, and, at the intersection of the two lines N 60° 36’ "W and N 7° 36’ W, located the corner designated as a dogwood. About half the distance from the dogwood to the stake on the creek bank, the N 7° 36’ W line coincides with the bed of Pleasant creek, but for the other half the creek veered outward from that line, thus virtually excluding the land actually in controversy from the area embraced by the boundary lines called for in the Knotts-Bartlett deed. Evidently to include this parcel, the report says “plaintiff then had the S 57° 24’ line extended from the stake on the bank of old creek to center •of new creek, a distance of 9.65 rods”.
It is clear, therefore, that, although the jury found for the plaintiff, its verdict left undetermined the ownership and right to possession of the disputed parcel; because it followed the calls of a deed made in 1864, without any correction for variation from the true magnetic meridian or reference to the Morrow survey or to the land really in controversy. It settled nothing of Vital importance to plaintiff or defendant. "Of •course, where the jury finds for the plaintiff the premises as described in a declaration containing a reasonably certain description of the land, which the proof supports, the verdict will usually be deemed sufficient. Messick v. Thomas, 84 Va. 891; Timber Co. v. Ferrell, 67 W. Va. 14. But where, as in Miller v. Holt, 47 W. Va. 7, there is a definite call for course and distance as the division line between plaintiff’s and defendant’s lands, the true location of which is the real controversy in the suit, the jury must ascertain and fix the location of such line, and a verdict which merely finds for the
Defendant’s disclaimer by the metes and hounds stated in the declaration, without designating the creek claimed by the plaintiff as the true boundary line, did not entity him to a dismissal of the action. Obviously, he did not disclaim title to the strip lying between the old and new creek beds, the right to which is the sole foundation of this litigation.
Nor was defendant prejudiced by the filing of plaintiff’s statement of damages after the panel of twenty jurors were sworn on their voir dire but before any further proceeding towards the selection of the trial jury. Such statement may he filed at any time before the trial. Permission to file it after the commencement of the trial, however, should be refused, if filing of the statement would operate as a surprise or fraud upon defendant. Whether it may be filed after the defendant has appeared and pleaded to the action is a matter within the discretion of the trial court; but such discretion should be exercised so as to avoid surprise and injustice to him. Witten v. St. Clair, 27 W. Va. 762; McClain v. Fighter, 34 W. Va. 186. Defendant did not move a continuance, nor attempt to show anjr fact upon which to base such motion.
The damages allowed plaintiff are not sufficiently supported by the proof, His claim consists of four separate items: injury to and destruction of fruit trees and crops on the disputed land, $100; destruction of a fence along Pleasant creek, $50; denial of access to Pleasant creek to secure tvater for stock and domestic use, $150; deprival of the use of a coal mine, $500. But little evidence tends to sustain the first item. Neither the number nor the value of the fruit trees appears, except plaintiff’s statement that “about a hundred of them were peach trees” grown by ,him from seed, and “some of the apple trees I had got two years before that and some I had got about a year before that” and “some came down as low as 15 cents and they ran on up”. Of the crops he said: “I had some nice bunch beans and a nice potato
But the principal item is that of $500 for depriving plaintiff of the use of his coal mine for two years; and apparently upon the evidence concerning it the jury in large part based its award of damages. Through an opening on the western side of the creek and near to it, plaintiff prior to the interruption of his possession by defendant had mined' coal from the 2 1-2 acres for local customers, transporting it over a private way along the stream and by the mouth of the mine. During the two years immediately prior to the suit, defendant, holding hostile possession of the disputed strip, built and maintained a barbed wire fence along the creek, thereby closing the mouth of the mine and obstructing plaintiff’s use of the roadway. Thus he was prevented from marketing coal from his lands. The evidence in support of the $500 item consists solely of estimates, ranging from $250 to $500‘, made by various witnesses, of the extent of his damage by reason of his exclusion from' the mine. These statements were based upon profits plaintiff would have made from the coal he could have mined, but was prevented from mining, during the two years of defendant’s detention.
Was this the proper measure of such damages, even if sustained by sufficient proof ?■ Section 30, ch. 90, Code, authorizing recovery therefor in ejectment, provides that the jury shall “assess the damages for mesne profits of the land for any period not exceeding five years previously to the com-
To afford opportunity for correction of the various erroneous rulings and findings discussed, we reverse the judgment, and remand the case for new trial.
Reversed, and new trial awarded.