96 Va. 285 | Va. | 1898
delivered the opinion of the court.
This is an action of ejectment to recover two hundred and six acres of land, which the plaintiff asserts is a part of a large grant to General Henry Lee, assignee of John Miller, and within the survey for Miller upon which the grant was founded.
The case is before us for the second time. It was here before mainly upon matters of law. Reusens v. Lawson, 91 Va. 226. It is now before us chiefly upon questions of fact.
The defence was twofold: First, that the land was not within the Miller survey; and second, that, if covered by it, the defendants and those through whom they claim were purchasers for value, and had held adverse possession under color and claim of title beyond the statutory period of limitation.
Upon the plaintiff devolved the burden to prove by satisfactory evidence his title to the land; and to establish his right to recover possession thereof from the defendants.
One of the principal difficulties encountered by the plaintiff in making out his title was in establishing satisfactorily the beginning corner of the Miller survey. Unless this corner was established, he could not locate correctly or satisfactorily the Miller survey, and prove that the land in controversy is within its boundaries.
The original survey for Miller and the grant to Lee describe the land embraced therein as follows : “ Beginning at a poplar and persimmon on the north side of Big Dan river, thence new lines N. 23 degrees E. 1280 poles to a chestnut tree, If. 40 degrees E. 500 poles to a black walnut tree, If. 40 degrees E. 1600 poles to a black walnut tree and hickory near a path, S. 45 degrees E. 1300 poles down the Mayo river to Magruder’s corner white oak, thence his line If. 20 degrees W. 36 poles to a white oak, &c., &c.”
The plaintiff claimed as the beginning corner of the Miller survey the point at A on Big Dan river, on the map made by Surveyor Branseome.
Ho witness introduced on the trial ever saw the poplar and persimmon which are described as the beginning corner, and there was no direct testimony to fix their particular location on the river. The plaintiff claimed to fix the point at A as tho beginning corner by reference to the deed from Henry O. Middleton, a grantee of the larger and northern part.of the Miller survey to Stephen Goings for 238 acres of the Lee grant. This deed was made in 1831, thirty-six years after the Miller survey. It describes the land conveyed to Goings as a part of the large survey of Russell (Miller), in Patrick county, on the Blue Ridge mountain, and as beginning at a large poplar on the North side of Big Dan river, “ the beginning corner of the said Russell survey.” The plaintiff claimed that a poplar stump at or near the point at A on the river was the poplar referred to as the beginning corner of the Russell survey. It was a “large poplar” in 1831, when the deed from Middleton to Goings was made, and stood near where the road crosses the river, but so far as the record discloses, no witness introduced ever saw the tree when standing, and there was no evidence that there was any mark on it, or on the log after the tree had fallen, or on the stump, to identify the tree as the
On the other hand, there was much in the evidence to cast great doubt upon the poplar stump as the beginning corner of the Russell (Miller) survey. It is not on the north, but on the east side of the river. Surveyor Pedigo did not agree that it was the beginning corner, but commenced his survey thirty, seven poles farther down the river. The Ternan grant adjoins the Lee grant, and the McLean survey upon which the Ternan grant was issued was made by the same person (Surveyor Stovall) who made the Miller survey, and at the same time. Both surveys have the same beginning corner. The McLean survey and Ternan grant begin at John Miller’s corner poplar on the north side of Big Dan river, and- thence run down the river “ as it meanders 640 poles to Wm. Carter’s corner beach at the mouth of Buzzard branch.” The branch, like the river, is a fixed natural monument. The corner trees (poplar and persimmon) at the beginning of the Miller survey not being found, and the location of the corner being in great doubt, it ought to be reached and located by running up the river as it meanders 640 poles from the mouth of Buzzard branch; but the testimony shows that a line so run would stop far short of the point at A; would not in truth go over half the distance.
If the point at A be in fact the beginning corner of the Miller survey, and the courses and distances thereof he thence run, the result should correspond with the requirements of the calls, but so far from this being the case, it appeared, on running from A the calls of that survey, that there was much in the result to negative the claim that the point at A was- the beginning of that survey.
The first call is IT. 23 degrees E. 1280 poles to a chestnut tree. Being run from the point at A, no corner was found
In addition to the discrepancies between the calls of the survey and the courses and distances which were run by Surveyor Branscome by direction of the plaintiff, there was much in the evidence to throw doubt upon his right to the parcel of land in dispute.
Starting at the point at A, which was contended for by the plaintiff as the beginning corner of the Miller survey, and
The Miller survey, as run by Surveyor Branscome, iu accordance with the contention of the plaintiff, includes much land beyond the mountain, but it was in evidence that Middleton, and after him, Purvis, his grantee, were both in the county in the life-time of Surveyor Stovall, and while he was still the county surveyor, looking up the corners and boundaries of the land, and that neither of them ever contended that any of the land lay north of or beyond the Blue Ridge, but, on the contrary, only claimed to the brow of the mountain upon its southern side. This testimony tended to explain why, in starting at the point A, claimed by the plaintiff as the beginning corner, and running the calls of the survey, no walnut timber was found at D as called for, and to prove the incorrectness of the starting point; it being shown that there is no walnut timber on the top or on the north side of the mountain, and that none ever grew there, but that it abounds on the south side of the mountain.
The fourth call from the walnut tree and hickory near a path at the end of the third line is “ down the Mayo river to Magruder’s corner white oak,” and shows that the walnut tree and hickory were in close proximity to the river, or, making allowance for the loose surveys of that day, that the river was at least in sight. The evidence, however, shows that Hylton’s
There was no evidence that the points at A, B, C,,D, and E on Branscome’s map were ever claimed by Middleton or Purvis as corners, when looking up the corners and locating the boundaries of the Miller surveyin the life-time of the surveyor who made it, which points, if correct, would include the parcel of land in dispute, but there was evidence before the jury tending to prove that Purvis, who at one time spent four months in endeavoring to establish the boundaries of his land, never claimed it.
The facts which have, been adverted to and others that might be mentioned tended to prove that the location of the Miller survey as contended for by the plaintiff was too high up, and that it lies lower down and further south.
Without further reference to the evidence and its many discrepancies, it is sufficient to say that we have carefully gone over it all, and studied it in connection with the maps and surveys filed with the record, and are unable to say, after mature consideration, that the jury were not warranted in finding a verdict for the defendants, and that the Circuit Court erred in refusing to set aside the verdict as contrary to the evidence.
It was said in Hill’s Case, 2 Gratt. 594, and the language was approved in Read’s Case, 22 Gratt. 944, that ‘ ‘ where the jury and the judge who tried the cause concur in the weight and influence to be given to the evidence, it would be an abuse of the appellate powers of this court, remote as it is from the scene of the transaction, having the evidence only on paper, divested of many elements which enter into every jury trial, and which, from their nature, cannot be presented on paper, to set aside a verdict and judgment, because the judges of this court, from the evidence written down, would not have concurred in the
■ And a similar statement of the powers and practice of this court with respect to new trials was made by Judge Christian in Blosser v. Harshbarger, 21 Gratt. 214.
Having reached the conclusion that the verdict of the jury was warranted by the evidence, and that we are not authorized»-, in view of the long and well settled practice of this court, to interfere with the verdict by setting it aside and awarding a new trial, even if we were so disposed, it becomes unnecessary to consider the defence of adversary possession.
The only other matter left for determination relates to the propriety of instructions numbered 5, 6, and 7, which were given for the defendants. In this the court below committed no error.
As to instructions 5 and 7, there being evidence before the-jury upon which to predicate them, it was the duty of the court to give them upon the request of the defendants. Where there is evidence tending to make out the supposed case, of however little weight the evidence may appear to the court to-be entitled, or however inadequate in its opinion to make ‘out the case supposed, it is safest and best for the court not to refuse to give an instruction asked for if it propound the law correctly. Michie v. Cochran, 93 Va. 641; Hopkins, Brother & Co. v. Richardson, 9 Gratt. 485; and Kimball & Fink v. Friend, 95 Va. 125.
- As to instruction Ho. 6, it is in accordance with the views of this court as laid down on the former appeal, and considered in connection with instruction Ho. 13, given for the plaintiff arid explained by it, instruction 6 could not have possibly prejudiced the plaintiff.
The judgment of the Circuit Court must be affirmed.
Affirmed.
Note by the Reporter.—No map of the land was furnished with the record.