71 W. Va. 285 | W. Va. | 1912
Proceeding according to chapter 105, Code 1906, the State in November, 1909, filed its bill in the circuit court of Tucker County to sell for the benefit of the School Fund, a tract reported by the Commissioner of School Lands as waste and un
The sufficiency of the bill, which we think good, was challenged by demurrer, and defendants also answered. On filing their answers defendants moved an immediate submission of the cause for final hearing; but without formal action on this motion, the court below, without objection, deeming it a proper case, referred the cause to a commissioner, with direction to report upon the several subjects of inquiry required in the order.
It is- contended here, on behalf of defendants, appellants, and as ground for reversal, that it was error to have so referred the cause, before proof by plaintiff of the allegations of its bill, and a decree adjudging it entitled to the relief prayed for. We think there is nothing of merit in this contention. In the first place the denials in the answer are not of that specific and unequivocal character to show clearly that plaintiff was not entitled to relief. For instance, the bill charges that the deed from Stark L. Baker, Commissioner, December 3, 1900, on which defendants rely as source of title to the main body of the land, does not cover any part of the land in controversy, but describes land located in a different locality than that proceeded against. As the case was presented by the pleadings and exhibits it was utterly impossible for the court, without a reference to a commissioner, and a survey and location of the lands provided for, to adjudicate the rights of the parties. Lines and boundaries are uncertain. The true location of the line between Randolph and Tucker Counties, and whether any of the land proceeded against was located in Tucker County, so as to give the court jurisdiction, was controverted, and a survey was necessary to settle that fact. So a reference was proper for this as well as other reasons, according to general rules governing courts of equity. State v. King, 64 W. Va. 546, point 6; State v. Jackson, 56 W. Va. 558. Morever, section 8, chapter 105, Code, and sections 9 and 10 of the same chapter, seem to contemplate an order of reference in all proceedings under this chapter, not only to enable the court to determine
Of the 610 acres, more or less, proceeded against, the commissioner found, and the court decreed, that after deducting lands owned by defendants and others, to which good title had been acquired, there remained subject to sale as waste and unappropriated land belonging to the State, 308.61 acres, which should be sold for the benefit of the school fund. Defendants, Moore, Maxwell and Deity, trustee, have appealed.
In 'their answer to the bill defendants rely solely, as source and color of title, first, on a deed from Valentine, special commissioner, made June 22, 1901, pursuant to a decree of confirmation of prior date, alleged to cover 79 95/160 acres ; second, a deed from Stark L. Baker, commissioner of school lands, to J. H. Moore, December 3, 1900, describing by metes and bounds a tract containing 1,000 acres; and third, two deeds, one made by said Moore to defendant Maxwell and H. A. Moore, jointly, about January, 1902; the other by said N. A. Moore, reeonveying to his grantor, his interest in the land described in the first deed, both deeds describing the land purporting to be conveyed by identically the same boundaries as those recited in the bill describing the tract proceeded against. Respondents Moore and Maxwell allege in their answer that on July 20, 1907, they conveyed all their interest in said land to Christian Deity, trustee, and thát they have no interest therein except as vendors for the lien retained for the purchase money.
The decree of sale, following the commissioner’s report, eliminates the 79 acre tract, claimed by the defendants, and no part of that tract is decreed to be sold. It is clearly shown by the evidence before the commissioner, and the report of the surveyor filed therewith, that the deed from Stark L. Baker, commissioner, to Moore, covers no part of the land decreed to be
To defeat the State’s suit, defendants rely upon color and claim of title, possession, and payment of taxes for a period of five years, and transfer of the State’s title, by virtue of section 3, Article 13, of the Constitution, and section 6, of chapter 105, Code 1906. Of the three classes of persons favored by the constitution and statute, it is clear from the record that appellants do not fall within the first class, for they do not show color and claim of title for ten years. We think the evidence does show that they paid taxes for five consecutive years, as contemplated by the statute; but they do not show, as they must to bring themselves within that class, that they had actual continuous possession of the property under color or claim of title for the period of ten years. The deed from Baker, commissioner, would not do for time, as that deed was made December 3, 19001, and this suit was brought in November, 1909; and ten years possession is not proven or claimed. Besides, this deed does not cover the land in controversy. Nor, for the same reason, will the alleged deeds, inter partes, of January, 1902. give color or claim for the requisite period.
It is substantially conceded also that defendants do not fall under the second class covered by the constitution and statute, for they showed no title regularly derived mediately or immediately, from or under a grant from the Commonwealth or of this State. Conceding that the Baker deed would amount to a grant of State’s title, a fact not conceded, it does not cover
The strongest case made by appellants is under the third, or last class of favored persons. All that was required to put them under that class was that they should have had claim to and actual continuous possession of the land, under color of title, for any five successive years, after the year 1865, and have paid all the taxes charged and chargeable thereon for that period. We are of opinion that the, deed from J. H. Moore to Maxwell and N. A. Moore, and by the latter to J. H. Moore,, furnished color of title for the requisite period; but actual continuous possession thereunder for five successive years was a pre-requisite condition to the transfer of the State’s title. Was such possession shown? This is the pivotal point in the case. The constitution and statute require actual continuous possession. Such possession is denied by the bill. In reply to this charge, defendants in their answer say: “That during the year 1902 that a man by the name of Summerville lived on these lands and during the years 1903 and 1904 that D. P. Hansford lived on them and since that time up until the present date, Haymond Hansford has had actual, open, notorious and exclusive possession of the same. That ever since they have owned these lands, respondents have had a party living on the same and have had parts of the same under cultivation. Respondents, however, say that no part of the 79 acres, which is all the land they own in Tucker County or have any claim to, has ever been under possession, except that they have had a tenant to look after the same and keep away trespassers.”' Here is an admission of no actual possession upon the 79 acre' tract. Moreover, the alleged possession of Summerville, in-. 1902, and of Hansford, during 1903 and 1904, is not alleged to-have been under appellants. The allegation that Hansford had actual, open, notorious and exclusive possession after the-year 1904, falls short of the requisite elements. But what are-the facts about the possession? ’ The commissioner on the-evidence before him found against the appellants. They have-excepted to his report. The evidence of the witnesses before the-commissioner, including appellants themselves, is quite indefinite and uncertain. Appellants seem to have relied mainly
Is this character of evidence of possession sufficient to overthrow the finding of a commissioner and the decree appealed from? We think not. Before the State can lose its land the claimant must at least show a clear right by the actual continuous possession and payment of taxes for the required period. Support of appellants’ contention is sought in State v. Harman, 57 W. Va. 447, point 11 of the syllabus. That point of the syllabus is: “Actual possession within one of two or more adjoining tracts of land of the same owner is possession of all of them.” But the trouble about this position is, that the evidence does not clearly show actual continuous possession for the required time of any adjoining tract or tracts. There was no survey of the adjoining tracts of which possession is claimed, nor .is the point and time of possession definitely located and fixed. The burden was certainly upon the appellants. Besides, it may be questioned whether the principles in the Harman Case had application here. The facts are different. But we do not decide this point. It is unnecessary. Clear proof of such possession has failed.
What is meant by actual continuous possession, within the meaning of the constitution and statute? Does the uncertain desultory kind of possession proven in this case answer the requirement? We think not. Our decisions say that surveys, cutting wood, occasional occupancy, with payment of taxes will not do. Core v. Faupel, 24 W. Va. 246; Oney v. Clendenin, 28 W. Va. 35. In Wilson v. Braden, 56 W. Va. 372, 49 S. E. 409, it was said: “A mere claim to possession accompanied by occasional cutting of timber, the prevention of trespasses, the payment of taxes and the assertion of title is not sufficient, but it must be such occupation, use or holding of the property or change in its character, as will make such claimant during such statutory period continuously subject to be- treated as a trespasser.”
We do not think appellants have brought themselves within
Affirmed.