83 W. Va. 701 | W. Va. | 1919
The railway company in November, 1908, sued defendant Christian and nineteen others in ejectment, in the circuit court of McDowell County, to recover' so much of the land claimed by them as lay north -of the southern line of the original right of way of the Taeger and Southern Railway Company, to which plaintiff had succeeded in right and title, particularly that portion thereof conveyed to the said Taeger and Southern Railway Company by Ellen and Preston Beavers by deed dated July 18, 1899. The description of said southern line and the end lines of said right of way as described in the declaration and the deed introduced in evidence is as follows: “Beginning at a point on the division line between the lands of J. Gr. Watts and said Ellen Beavers distant 40 feet from measured at right angles to the center line of the Taeger and Southern Railway as now located and running thence parallel to and distant 40 feet from said center line as follows; — By a line curving to the right with a radius of 750.3 feet for a distance of 22.2 feet, S. 50° 46' E. 196.2 feet thence curving to the left with a radius of 676.8 feet for a distance of 148.7 feet S. 63° 22' E. 774.9 feet thence curving to the left with a radius of 915.4 feet for a distance o f 449.3 feet; thence still curving to the left with a radius of 1392.3 feet for a distance of 435.3 feet, N. 70° 28' E. 535.7 feet; thence curving to the left with
There was a plea of “not guilty” as to most of the defendants, accompanied with a notice of claims for improvements made by them respectively on their respective portions of the land sued for, and motions to strike out said pleas made by plaintiff were overruled, and other motions were also made and ruled upon not necessary to be considered on the present hearing.
On the 23xd day of October, 1911,.when the case was finally called for trial, the record shows that Christian and some twelve other defendants asked and were grabbed leave to file disclaimers to certain portions of the land sued for, and also to file claims for improvements. But no disclaimers appear to have been actually filed, and immediately following that part of the order allowing the filing of disclaimers it is recited that defendants again for plea say that they are not guilty of unlawfully withholding the premises in the plaintiff’s declaration described, and of this they put themselves upon the country, and that the plaintiff did the like, and issue was thereupon joined, and thereupon a jury was empaneled and sworn to try the issue thus joined, and after hearing the evidence, the arguments of counsel and the instructions of the court their verdict was, “We the jury, upon the issue joined find for the defendant.” And thereupon plaintiff moved the court to set aside the verdict, and for a new trial, based on several grounds, and the court took time to consider thereof, but owing to the request of counsel on both sides, the motion was not finally disposed of
The deed from Ellen and Preston Beavers to the Iaeger and Southern Railway Company conveyed with covenants of general warranty, not merely a right of way but the entire estate and interest in the land granted, and the only issue involved was the true location of the southern line thereof as originally located and described in the deed of July 18, 1899, and the map attached thereto. Among the witnesses introduced and relied on by plaintiff to establish the location of this line were Wysor, assistant engineer, an C. S. Spur-lock and C. A- Bailey, engineers, who assisted in surveying and locating the original center line of said Railway Company, and Wiltsee, engineer of the plaintiff company, who made a re-survey of the line for the purpose of this suit and also the part of the entire right of way adjoining the land in controversy. These witnesses located said southern boundary line of the original right of wray by reference to the hub established by the engineers who ran out and established said center line, a black oak stump at the easterly end and an apple tree near the other end of the line, called for in the original field notes and proved by said Bailey and Spurlock. These monuments were not called for in the deed from Ellen and Preston Beavers nor in any of the title papers under which plaintiff claims, but were called for and referred to in the original field notes of the surveyors, which enabled these witnesses, they said, to locate definitely the true center line called for in said deed.
On the other hand the defendants introduced one Wygal, an engineer employed by E. S. Hood in 1903, to locate said original right of way and to lay out and plat for him with reference thereto certain adjoining lands into town lots, some of which were afterwards conveyed to some of the defendants and now involved in this suit. Wygal said the only data he had from which to locate the said center line was the old- map filed in the clerk’s office by the Iaeger and Southern Railway Company, a location stake marked with mineral keel, and the cuttings of the brush through the
The first point made is that the trial court erroneously refused plaintiff’s instruction Number 1. This was a peremptory instruction telling the jury to find for the plaintiff and to fix the boundary of the land according to the survey made by Wiltsee and others in 1911, in so far as the
The general description after the particular description •in the deed of July 18, 1899, is: “The above description 'being for a strip of land eighty feet wide (40 feet on each ■side and parallel to said center line) for a distance of 3177.9 feet measured along said center line from the line of J. G-. Watts, through the land of said Ellen Beavers to the land •of J. E. Harman or A. D. Beavers, and containing 5.83 acres, ■snore or less.” The point which counsel seek to make is that Wiltsee in making his survey found one of the lines of the particular description to be N. 70° 28’ East 635.7 feet instead •of N. 70° 28' East 535.7 feet as called for in the deed and •plat, and that this general description and the work done by ■him on the ground in attempting to apply the description to -the subject matter of the deed contradict the particular de■scription, to this extent at least which should have controlled •the court and jury. ■ We do not see, however, that this gen■eral description is any more applicable to the palintiff’s •case than to that made by defendants. Of course if the segment of the curve is longer than that called for, it would -enlarge the circle and cover more land than is.called for in
We have perhaps sufficiently indicated our opinion on another point made by plaintiff against the ruling of the court on said instruction and its motion for. a new trial, namely that natural objects, marked lines and reputed boundaries should prevail over courses and distances. The
The next point is the most serious one. The verdict upon the plea of not guilty was general and not limited to the land, actually claimed by defendants. The land sued for was covered by several deeds, the title to and location of which was not controverted, except as to that part covered by the deed of July 18, 1899. The plea of not guilty put in issue the right and title of the plaintiff to the whole of the land sued for, and the general verdict would be conclusive upon plaintiff in any subsequent suit between it and the defendants or their privies in title. Wilson v. Braden, 48 W. Va. 196, 207, and cases cited; Pardee v. Johnston, 70 W. Va. 347, 355. If the defendants intended to limit the issue, it was a privilege given them, and they should have done so. Not having actually entered their disclaimers, the general verdict in their favor cannot stand, as we decided in Pardee v. Johnston, just cited. In anticipation of this result, counsel for defendants insist that the new trial should be limited to the one issue of fixing the boundaries of the line to which the defendants may disclaim, and should not open up again the question of the location of the center line of the original survey; For this proposition they invoke the rule announced in Moss v. Railroad Company, 75 W. Va. 62, and Fry v. Stowers, 98 Va. 417. But that rule is limited to cases where justice demands it and where it is clear that it can be pursued without confusion, inconvenience and prejudice to the rights of any pa.rty to the action. Tn the Virginia ease the
The next point of error is that the court below erred in denying plaintiff the right to propound and have answered the following questions to the witnesses Bailey and Spurlock, both civil engineers who assisted in making the original survey: “I will ask you to state, in your opinion, and from your knowledge and experience in civil engineering, whether or not in 1911 that old center line could be properly located by competent and capable engineers, with the aid and assistance of the original level and topographical notes taken in making the survey in 1898, the original map made by the •engineer in charge of that survey, and the deed from Ellen alad P. Beavers to the Iaeger and Southern Railway Company of 1899, which I now hand you?” The record shows that both witnesses would have answered in the affirmative.
We think the questions as propounded to these experts and their answers thereto were proper and competent under the facts and circumstances disclosed by the record. It is manifest that the most important fact in controversy was the true location on the ground of the center line of the original right of way. The proposition of counsel opposing these questions is that they call for opinion evidence on a question of fact which laymen are as capable of judging as experts. We cannot accept this view of the subject. Would a layman, a farmer for instance, given the facts assumed in the questions, be as competent as these experts, skilled in the use of the necessary instruments and in the solution of such engineering problems, to say whether from them the
Upon the foregoing considerations we have reached the opinion to reverse the judgment, set aside the verdict and award the plaintiff a new trial.
Reversed, verdict set aside, new trial awarded.