200 S.E. 581 | W. Va. | 1938
This is a suit to establish an easement, the use of which defendant was impeding. The circuit court dismissed the bill and in response to the answer, established a division line between the parties. In passing, it is noted that equity has no independent jurisdiction to establish a boundary line and could do so in this cause only as an incident to the determination of the alleged easement. Carberry v. Rr. Co.,
Plaintiff's farm is rectangular and is adjoined on its entire southern line by defendant's farm. Along this line is a lane (more than four thousand feet in length), extending from a highway called the Ridge Road on the east of the two farms to a highway called the Mountain Road on their west. Neither the time, manner nor purpose of establishing this lane is within the memory of the living. Several aged witnesses had known and used it when children. It was then "single track" and fenced on both sides its entire length. It was then used freely by everyone desiring to do so. From that time until this, first the western and later the eastern part has been used constantly by the owners of defendant's farm. During that period the owners of plaintiff's farm have not needed to use the lane, and have not used it to any extent except that for the last eleven years, plaintiff himself has driven over the eastern part weekly. The western part has fallen into disuse, though a well-defined foot *577 and bridle path still exists. The lane fence on plaintiff's side has been maintained constantly its entire length by the owners of his farm, except near the Ridge Road where now only fence posts stand. The lane fence on defendant's side was maintained constantly its entire length by owners of his farm until within the last few decades. About 1910 an owner destroyed the section of his fence near the Ridge Road. Other sections have fallen down.
Plaintiff inherited his farm from his grandfather, who secured a deed thereto in 1847. The deed called for stones at each of the four corners. None of those stones can now be found, except the one at the northeast corner (and admittedly it was moved by a third party several feet east of its original location). The east line of the deed, when run from this stone the distance called for, lacks 5.4 feet of reaching the line of plaintiff's fence posts at the junction of the lane and Ridge Road. A stone reputed to have been a cornerstone was observed by some of the older witnesses in the lane where it joined the Mountain Road. While the stone is gone, there is now a post (or several massed posts) on the west side of the Mountain Road about opposite where the stone was lodged, which the plaintiff claims, without controversy, as his southwest corner. The circuit court, disregarding the course of the southern line in the deed of 1847, decreed that the line should run from the corner at the Mountain Road to a point in the center of the Ridge Road on a line projected eastwardly from plaintiff's lane fence posts. If the course and distance in the deed be followed, this line would terminate on defendant's farm a few feet south of the lane as originally established. This terminus would be beyond the call of the eastern line when run from the stone at the northeast corner. But when the course of one line and the distance of another do not accord, there is no general rule requiring that the course be disregarded. Warren v. Boggs,
The decision in Harriman v. Brown (1837),
The decree of the circuit court is reversed, and the cause is remanded that the lane, as originally established, may be precisely located by metes and bounds or in *580 some other definite way. When so located, the defendant will be enjoined from obstructing it in accordance with the prayer of the bill.
Reversed and remanded.