71 W. Va. 21 | W. Va. | 1912
In ejectment plaintiff claims Lót Ho. 19, of 2000 acres; defendant Lot Ho. 18, of 3000 acres, of the Pennell chain of surveys, the latter laying immediately Hortheast of the former.
One of the questions of fact presented was as to the true location of the original division line between these two lots. Plaintiff’s contention was that this line began at a rock and two beeches, thence Horth 40 degrees west Crossing Back Pork of Elk River at 212 poles, 455 poles to a chestnut. Defendant contended that the. line began at a Cucumber, as called for in the original survey and patent, located 150 poles or more Southwest of the rock and two beeches, and thenc.e according to the calls of the original patent Horth 40 degrees West, with proper vari
Though not admitting the correctness of the jury’s finding, plaintiff concedes that it is probably bound by the verdict, on conflicting evidence, locating the original division line between these lots, as claimed by defendant. But on the question of title by adversary possession it makes no such concession. On the contrary it insists that by such adverse possession under color of title, it has acquired good and indefeasible title to the disputed boundary, entitling it as matter of law to a verdict and judgment; or, if not this, that it was entitled to have the question of fact of such adverse possession submitted to the jury, uninfluenced' by and ’ wholly apart from the question of the true location of the original boundary line between the two lots, and not as was done by defendants’ instructions, and particularly by its instructions numbered 4 and 5, given on its behalf, confused therewith.
Originating with a decree of partition of lots numbered 13 and 19, made upon the report of commissioners in 1871, it is conceded that this decree and all subsequent deeds down to and including the immediate deed to plaintiff describe said Lot No. 19, as beginning at a large rock and two beeches, and a corner to lot 18, and thence for the division line, North 40 degrees West crossing Back Pork of Elk River at 313 poles, 455 poles to a chestnut, and from thence calling for courses and distances and natural and fixed objects, to the beginning, and thereby definitely and conclusively locating plaintiff’s land on the ground substantially as described in the declaration. The evidence, oral and documentary, leaves no room for controversy on this point. Furthermore, the uncontroverted evidence is, that plaintiff and its predecessors in title have persistently, since the decree of partition of 1871, claimed the land within the boundary fixed by that decree, and described in the subsequent deeds, including the disputed boundary, to the exclusion of all other claimants; ■that in August, 1895, Frederick S. Stevens and others, then owners of the 3000 acres, known as lot No. 19, found one John McClanahan on the land claimed by them and within the boundary or interlock now in controversy; that on that day they sold and conveyed to him by metes and bounds a tract of twenty
Defendants controvert plaintiff’s claim of title by adversary possession, on two grounds: First, that the calls in the decree of partition and subsequent deeds relied on, for a rock and two beeches, as the beginning corner, being mistaken for the cucumber called for in the original grant, and from thence, by like mistake, for the other boundaries, and together mistaken for the true boundary lines of said lot No. 19, plaintiff was without color of title to any of the land in controversy; and that as the land actually enclosed and occupied by McClanahan for ten years prior to the suit, was not definitely located on the ground and described and shown to the jury, no recovery thereof could be predicated on mere claim of title, and that the general verdict
Adverse possession by John MeClanahan for ten years prior to ouster by defendants, the facts not being controverted, we think, clearly entitled plaintiff, as mater of law, to a verdict arid judgment for the land sued for, unless defeated in these rights for the reasons assigned by defendant.
First, among defendants’ contentions, did plaintiff and its predecessors have color of title? .Defendant answer Ho, because the location on the ground by the report of the commissioners and the decree of partition of 1871, and the subsequent title papers, was by mistake, the evidence as claimed tending to show intention of the owners to claim only to the true boundary lines of said lot Ho. 19, and not to the actual boundaries described in said decree and deeds. Plaintiff’s counsel do not controvert the general proposition relied on by defendants’ counsel, supported as it is by Heavner v. Morgan, 41 W. Va. 428, Jackson v. Land Association, 51 W. Va. 482, and Schaubuch v. Dillemuth, (Va.) 60 S. E. 745, that if one by mistake enter on the lairds of another, his title papers not actually covering the land entered, he can not by adverse possession under color of title
But was the continuity of plaintiffs adverse possession by John McClanahan broken, or rendered inoperative by the alleged possession of David McClanahan, or by John McClanahan, under the lease of January 1, 1904?
First, as to the possession by David McClanahan. He did not live on the disputed, boundary. The only land claimed to have been occupied by him in any way within the disputed boundary was about half an acre, which appears to have been enclosed by an indifferent fence or barrier. Defendants’ witness says he had it enclosed by “some rails on the lower side of it, and I think some logs on the upper side of it. It was a fence sufficient to hold his stuff there.” Other witnesses for defendant say this patch was so enclosed and that they saw crops in this patch some years. It does not very distinctly appear who built the fence, nor that David McClanahan originally made the improvement, nor that it was he who cropped the place. And it certainly does not appear under whom, if ever, he made entry in 1895, when the evidence tends to show it was first noticed.
But was plaintiff’s possession interrupted and its rights by adversary possession defeated by the act of John McClanahan in accepting the lease from Beckley of January 1, 1904? While this lease is offered in evidence and is copied into the record, it was rejected, and was not before the jury, and it constitutes no part of the record, not being made so by a proper bill of exceptions. But suppose it was a part of the record, was it properly rejected? We think it was, unaccompanied as it was with any evidence of notice by McClanahan to his landlord thereof, or of adverse holding by him. The lease does not appear to have been recorded so as to give even constructive notice. John Mc-Clanahan denies that he ever accepted a lease from Beckley for any land within the boundary claimed by plaintiff. His evidence is that he leased from Beckley the Ditzel place outside the blue line, not within the disputed boundary. But whatever be the fact as to the contents of the lease, it is immaterial if notice of the lease and of adverse holding thereunder, and termination of his tenancy under his lease from Stevens, was not given plaintiff by McClanahan. Defendants’ counsel argue there is
The true location of the original lines and corners of the two lots was one of the issues before the jury though not controlling. Plaintiff contended that the original lines and corners were located as surveyed and described in the decree of partition and subsequent deeds; the defendant that they were elsewhere; but as the rights of plaintiff did not depend alone on the true location of these original lines and corners, but on adversary possession, the location of the original lines and corners was really immaterial. The instructions are not binding instructions however. The court fully instructed the jury by other instructions given at the instance of the plaintiff, on the question of adverse possession, and as the true location of the original patent lines and corners was presented as an issue by both parties, and the instructions complained of, we think, properly propound the law on that subject, and we do not see that plaintiff was materially prejudiced thereby, although the issue covered by the instructions under the evidence was in fact uncontrolling and really immaterial.
On the real merits of the case, however, as presented, and for
Reversed and New Trial Awarded.