77 W. Va. 546 | W. Va. | 1916
The titles of the parties to this bill to enjoin the cutting of timber on a tract of land containing 16 acres, on the theory of good title in the plaintiffs, spring from a common source, and the substantial right of the controversy depends upon the construction of the descriptive clause of a deed for a tract of 50 acres of land, apparently owned by the defendant, Harriet Wade, which, it is claimed includes the 16 acre tract. Resolving this question in favor of the plaintiffs, the circuit court-overruled a motion to dissolve the preliminary injunction awarded and later perpetuated the injunction and referred the cause to a commissioner, for the taking of an account of the value of the timber cut.
Both parcels of land came out of a tract of 450 acres, conveyed to Thomas G. Smith by Horace Wirtz and others, by a deed dated, September 28, 1856. On June 22, 1876, Smith conveyed to Samuel J. Long 17% acres of this tract. On September 17, 1881, he conveyed two other portions of it, one to Joseph Ruckman and Eliza Ruckman, containing 144 acres, and the other to Owens Taylor, containing 50 acres, the tract now owned by Mrs. Wade. The 16 acre tract in controversy, lies, for the most part, between the 50 acre tract and the 144 acre tract, and one contention of the defendants is, that Smith intended to convey to Taylor the land up to the line by which he conveyed to- the Ruekmans. By a deed dated, February 14,1882, Taylor and wife conveyed the 50 acre tract to Harriet Wade. What interest the Blands, the other defendants, have in the land or timber, is not disclosed by the record. Likely they are purchasers of the timber or employees of Harriet Wade, engaged in the cutting thereof. By a deed dated, June 15, 1901, Thomas G. Smith and wife conveyed the 16 acre tract to John M. MeKimmie and several other parties, some of whom conveyed their undivided interests to H. J. Rich
To the southwest of the portions of the Smith land, conveyed to Harriet Wade .and the Ruekmans and also of the 16 acre tract, lay a tract of 46 1-2 acres owned by B. Haley, or known as the Haley land. As described in the deeds made from Smith to Taylor and from Taylor to Wade, the line of the 50 acre tract begins at a dogwood, standing at the apex of the triangle constituting the 16 acre tract, and runs East, 116 poles; thence South I West, 26 poles; thence North 66 1-2° West, 27 poles, to a stone in a, low gap; thence South 43° West, 154 poles, to “a white oak corner to Haley.” The white oak so described is not a corner to Haley. To reach the well defined Haley corner, the course would have to be varied and the line extended 11 1-4 poles. The next call is “thence N. 51 1-2° W., 23 poles to a stone in said Haley line.” That stone is about the same distance from the Haley line as the white oak. The description then calls for a line running North 24° East 40 poles to a stone, and thence North 11 1-2°, (E), 80 poles to the place of beginning. To make this description take in the 16 acre tract, the eastern line would have to be extended 11 1-4 poles and the course altered, and the southern line run from the Haley corner North 43 1-2° West, 102 poles to a poplar, corner of the Ruckman land. Then, following the Southern Ruckman line back, on a course South 51° East 52 poles to a poplar stump, it would run North 28 1-2° West, 118 poles to the place of beginning. The corners of the 50 acre tract, which are in dispute, the white oak at the end of the 154 pole line and the stone at the end of the 23 pole line, are definitely located and are not in the Haley line, as the deed says they are, nor can the,lines be so run from them as to include any part of the 16 acres.
Lack of an allegation of the ¡tendency of an action of ejectment and of intention to institute such an action, to determine the question of title, is relied upon as denying equity jurisdiction. If the title is dependent upon a question
Title to a small portion of the land in the northern angle of the tract is claimed by the defendant, Harriet Wade, under the law of adverse possession, and there is some evidence tending to sustain this claim. But that title, if any, is limited to the land actually occupied, for her enclosure of additional land admittedly does not cover the requisite period of ten years. As to this small corner, there is an issue of fact, if her deed does not include it and that of the plaintiff does. But, ■as the timber in question is not on that portion of the land, and the bill seeks, primarily, protection of the timber, not determination of the title to the land, this issue does not defeat equity jurisdiction, if the deed under which the defendants claim, properly construed, does not, as matter of law, include the 16 acre tract, and the deed under which the plaintiffs claim does include it. The latter may have lost a portion of their land by the adverse possession of the defendants, but in that event, their right to restrain the cutting of the timber on the residue thereof would be clear.
Ordinarily a monument called1 for in a deed and erroneously described as being the corner of another tract, or as being in the line of another tract, if identified, is controlling, and the line stops at it. State v. Herold, 76 W. Va. 537, 85 S. E. 733; Matheny v. Allen, 63 W. Va. 443; Harriman v. Brown, 8 Leigh 697, 714; 5 Cyc. 915, 921. But such a description is ambiguous and may be interpreted, in the light of the subject matter, the situation and purpose of the parties and the attending circumstances. If such evidence clearly tends to prove intention on the part of the parties, to adopt the corner or line described as being identical with the monument,
Our conclusion is that the decree, in so far as it enjoins and restrains the defendants from cutting the timber on the tract of land, in the bill and proceedings mentioned and described, is correct, but that it is erroneous, in so far as it
Reversed in part. Affirmed in part.