63 W. Va. 443 | W. Va. | 1908
This action of ejectment was heard upon an agreed statement of facts, by the court, in lieu of a jury. The issue is so defined between the parties that both concede that a single question is involved; and, therefore, all matters not affecting this question are precluded from recital or consideration in this opinion. That question relates to a construction of the grant under which plaintiffs claim; and, abstractly, is this: Do calls in a grant or deed for trees as corners prevail over further call therein that a line between such trees is with an old established line of an adjoining tract or survey, when it is found that such calls are inconsistent? In other words: In a description of land, in a convejrance, when there is repugnancy between them, which yields' — calls for natural objects or calls for adjoiners?
Plaintiffs claim under a grant from the commonwealth to Richard Toler, *and defendant claims under an older patent. Plaintiffs are vested, by regular conveyances and payment of taxes, with title to the Toler grant, and defendant is a tenant of those likewise vested with title to the older grant. Neither plaintiffs nor defendant, nor those under whom they respectively claim, had actual possession of the strip of land in controversy until defendant moved thereon about two months before the institution of this suit. Actual and adverse
The description in the Toler grant, construction of which as contended by plaintiffs will cause interlock with the tract owned by those under whom defendant holds and will take from them the strip of land in controversy, is as follows: “Beginning at a white oak and pine near Preston’s corner * * * * S. 10. W. 116 poles to two white oaks and gum; & thence S. 83 W. 160 poles with Preston’s line to the beginning. ” The survey and plat in this case show that this beginning corner is several hundred feet from the Preston line; that the gum and two white oaks are at even greater distance from it; and that, to extend the line running to the gum and two white oaks to the Preston line, thence following’ that line to Preston’s corner, and thence to the white oak and pine, makes the boundary of the land in controversy, sought to be recovered by the plaintiffs. Prom this it will readily be observed that plaintiffs seek recovery of the land that lies between the Preston line and the line running from the two' white oaks and gum to the white oak and pines, the former of which is south of the latter, but not quite parallel thereto. To put it in different phrase, plaintiffs claim that they have a
Intention to make the call for the Preston line one of the outside boundaries is argued on behalf of plaintiffs. But upon the present inquiry we can only look to the language of the grant for such intention, as nothing on this score is contained in the agreed statement of facts. Mistake is also argued; but, to discover it, we are confined the same. We are, therefore, bound in our consideration to the face of the description; and, whatever may have been the intention at the time, we cannot now say that anything other was intended than that which is the result of the language employed, as measured by the rules of construction which the law would have us apply.
The general rule, applicable to the case we find here, is stated in 5 Cyc. 915, as follows: “As a rule lines marked on the ground for the survey or adopted by'the surveyor are to be regarded rather than call for adjoiners; and when there is a discrepancy such lines govern.” The same book, at page 921, says: “In case of conflict calls for adjoiners will as a rule yield to calls for artificial monuments and marks.” The authorities generally support this principle.
In line with the principle above applied, that locative calls prevail over calls for adjoining tracts, when there is repug-nancy between them, is Burnett v. Burgiss, 39 Tex. 501, the holding in which is in conformity to the weight of authority. It is there announced: “The location of the lines of a survey is to be determined by the lines as actually run upon the ground, where this can be ascertained; nor will this rule be varied by the fact that an adherence to it would give to the locator less land than he was entitled to by his certificate. Nor is the rule varied by the fact that a call is made to run to the line of an older survey, if that line was never reached in the survey actually made, but the surveyor stopped at another line which was mistaken for it.” Likewise, in the case of Cleaveland v. Smith, 2 Story 278, wherein it appeared that in a grant of land from the commonwealth of Massachusetts to the towns of Taunton and Kaynhaven, the land was described as “beginning on the north line of the million acres, at a yellow birch tree, six miles east from the south-east corner,” etc., (the said birch tree being marked as a monument in the original survey of the land,) whereas the birch tree did not, in fact, stand upon the said north line, as happened, but was so situated that a gore of land was left between it and the said north line, the court held that the birch tree, and not
It must not be overlooked that the calls of the Toler grant do not, in fact, call for the Preston line. They call for objects, certain trees, but these are not described as located on the Preston line. The beginning corner and the trees there named are expressly stated to be “near Preston’s corner;” but, as to this beginning corner, there is no call for the Preston line. And the call for the two white oaks and pine does not say that they are on that line. True, the call from there to the beginning says “with” that line. But since the line of that call is nearly parallel with the Preston line, may- it not be said that “with” means in the same general direction, as there has been no direct call for the Preston line? In no place do we find the words “to Preston’s line” or “on Preston’s line.” Then how can we infer that the footsteps of the surveyor went “to Preston’s line,” or were ever on “Preston’s line,” and construe the description as making that line one of the boundaries? And, particularly, how can we so construe it, as one of the boundaries, when the survey herein shows that to follow the corners adopted by the original survey and named in the grant, it cannot possibly be one of the boundary lines? By the plat, we must conclude the words “with Preston’s line” are mistaken description added by the original surveyor to fixed and certain description. If a man writes us a letter, saying that he is in a city situated at the confluence of the Schuylkill and Delaware rivers; that there he saw Independence Hall; and in that same letter calls the place New York, must we not, in sense, believe it Philadelphia, notwithstanding the mistaken name he has applied? “Where several particulars descriptive of the land conveyed by the deed are named therein, some of which are false, if the true are sufficient to designate the land, the false will be. rejected.” Tyler on Boundaries, 129; Abbott v. Abbott, 53 Me. 356; Robinson v. Braiden, supra.
It is also argued on behalf of plaintiffs that the presumption is against the construction of a description that will leave a narrow strip of land next to one of the lines. But
Upon the whole, it convincingly appears to us that we can here only apply the doctrine long recognized in this jurisdiction, as plainly announced in Gwynn v. Schwartz, 32 W. Va. 487: “In the description of lands as to questions of boundaries the rule is settled in Virginia and West Virginia that natural land marks, marked lines and reputed boundaries will control mere courses and distances or mistaken descriptions in surveys and conveyances.” The phrase “with Preston’s line” is the recital of a mere course, shown to be mistaken at that; which must yield to the definite calls for monuments, the corner trees. In this case, we see no reason to depart from the general rule, known to all versed in the law, that, in locating boundaries of land, resort is first to be had to natural landmarks, next to artificial marks, then to adjacent boundaries, and last to courses and distances.
Therefore, .we find no error, and affirm the judgment.
Affirmed.