77 W. Va. 765 | W. Va. | 1916
Of the several tracts proceeded against in this canse, three only are involved in this appeal, namely, one of 100 acres, one of 600 acres, and one of 50 acres, all described as situated on the West fork of Little Coal River, and as forfeited in the name of Floyd Cook, for the non-payment of the taxes thereon for the year 1896, and to which the bill alleges the defendants J. M. Johnson and the appellant, the Pocahontas Coal and Coke Company, have conflicting claims.
The decrees of July 15, and of August 31, 1908, appealed from, denied the right and title of the Pocahontas Coal and Coke Company to the 600 acre tract, alleged to be within the boundary of a tract of 50,096 acres, and other tracts, as claimed by it, and decreed that appellee Johnson had the better right thereto and was entitled to redeem the same from the forfeiture thereof, and that he be permitted to redeem the. same upon payment of the amount of taxes, damages, and costs decreed.
In his petition and ¡answer Johnson deraigned his title to the land proceeded against, immediately by deed dated June 27, 1898, from F. C. Leftwich, special commissioner, pursuant to a decree of the circuit court of Boone County, made April 13, 1897, in the chancery'cause of Stewart against said Cook, described as the same land conveyed, to Cook by one L. D. Coon, March 1, 1887, and from thence back through the deed, from said Coon by sundry mesne conveyances to a deed dated September 5, 1843, from Alfred Beelcley, commissioner of forfeited and delinquent lands for Fayette County, to Benjamin H. Smith, for lot number 21, of the subdivision "of the Rutter and Btting survey of 174,673 acres, granted to them by patent dated January 9, 1796, the same having been forfeited prior to that deed for non-payment of taxes prior to 1841, and proceeded against as forfeited, and sold and conveyed as aforesaid; and an indefinite claim is also made of some right under James A. Holley, alleged to have been ia
On the other hand the Pocahontas Coal and Coke Company, appellant, denaigns its title from numerous sources, as follows: By patent from the Commonwealth of Virginia to Edward Dillon, dated April 16, 1796, and from thence by regular chain of mesne conveyances and immediately from Edward W. Clark, and others, trustees, for the Flat Top Coal Land Association, by three deeds, the first -October 15, 1901, the second December 31, 1901, and the third, correcting the second, December 29, 1902; all of which conveyances, beginning with the deed of October 15, 1895, from Charles Reeder and wife, to Edward W. Clark, made pursuant to a decree of specific performance, except the two latter deeds of 1901- and 1902, describe ¡and convey the said Dillon patent of 50,096 acres, as it was surveyed by William T. Sarver in 1872, and which tract was never forfeited, and on which appellant, and those under whom it claims have regularly paid all the taxes charged and chargeable thereon, down to the date of the filing of its petition, to have said land dismissed out of said cause. The deeds of 1901 and 1902, referred to, purport to describe and convey said Dillon tract to appellant, not by reference to the Sarver survey, but according to the survey thereof made by M. A. Miller, surveyor, in 1884, and as so described they clearly cover the land in controversy.
The only irregularity shown in the payment of said taxes on this tract was for the year 185 — , for which, on October 19, 1855, it was sold by the sheriff of Wyoming county, and purchased by Anthony Lawson and Evermont Ward, and to whom it was conveyed by L. B. Chambers, clerk of the county court of said county, by deed of December 22, 1857, and which is one of the deeds in the chain of title deraigned by appellant. Besides the said deeds appellant also alleged and proved the death of the said Edward Dillon, and a deed from his heirs to the trustees of the Flat Top Coal Land Association, of February 11, 1897, under •whom appellant derived title to said tract. But this deed also describes said tract with reference to the said Sarver survey of 1872.
Besides these sources of title .appellant alleged and proved
Another muniment' of title relied on by appellant is the decree of the circuit court of Boone County, of October 10, 1898, in the -case of State v. Marietta Eaton and sixteen other cases, in which the said Clark, Bell, and Doran, trustees, intervened, and adjudging them, and those under whom they claimed title, to have had the actual, open, notorious, visible, continuous and exclusive possession of what is known as the Edward Dillon grant of 50,096 acres for much more than.ten years next before the institution of each and all of said .suits, and to have paid all taxes charged and chargeable thereon from the year 1867, (the date of the sale- thereof for taxes) down to the then present time, (except state taxes on 9000 acres thereof in Boone County, for the years 1881, 1882, and 1883), holding the same under title regularly derived from and under a grant of the Commonwealth of Virginia to Edward Dillon, dated April 16, 1796, and that each and all of the several tracts sought to be sold in the said several suits were located inside said Dillon grant, and were parts thereof, and that said trustees by virtue of their title, possession, and payment of taxes on said tract, and the provisions of section 3, of article 13, of the Constitution, had become vested of the State’s title to all of the tracts so proceeded against, and that the same were not liable to be sold, and dismissing each of said tracts out of said suits, and that said tracts be not sold and that the title of said trustees thereto be quieted. As against the State and all other parties to said decree, appellant pleads estoppel against them to set up any right to proceed against any part of the land embraced within the boundary of said Dillon tract of 50,096 acres.
The Rutter and Etting patent of January 9, 1796, under whom Johnson claims, was older by more than three months than the Edward Dillon patent of April 16, 1796. The two tracts overlap each other, but whether the Dillon tract was in a position at or prior to the time of the forfeiture and sale of the Rutter and Etting tract in 184 — , to take the title
The principal points of contestation here, as in the court below, have been whether -two of the western lines of the Dillon tract, as surveyed by Sarver in 1872, are coincident with the Jines called for in the original survey and patent based thereon ; and if not so, -whether appellant by its title papers is bound by the lines as run by said Sarver, surveyor, or may disregard the same and go to the true lines of the original patent ?
As stated, all the deeds and title papers under which appellant claims, including the contract between Reeder and Clark, of February 29, 1884, and the deed from Reeder and wife to B. W. Clark, of October 15, 1895, made pursuant to the decree of specific performance of the United States Circuit Court, which deed in fact- makes no specific reference to the Dillon grant, purport to sell and convey that tract by reference to and according to the survey thereof made by the said Sarver, the general description, Dillon grant or patent, being followed by the specific terms, as surveyed or according to the survey thereof -made by the said Sarver. The said contract says in terms: “It is understood that the party of the second part (Clark) is satisfied with the survey already made by Wm. T. Sarver of the exterior bounds of said tract of land, and that the surveying to be done is only such as may become necessary to ascertain what lands within said boundary are held by a better title than that of the said Reeder by reason of adverse title and possession.”
It is a well settled rule of boundary law that when general or comprehensive words are followed by particular or specific words of description the general description will as a general rule be restrained by the particular words. Lincoln v. Wilder, 29 Me. 169, citing p. 180, Roe v. Vernon, 6 East. 51, and Moore v. Griffin, 22 Me. 350; Jones’s Devisees v. Carter, 4 H. & M. 184; Robinson v. Braidien, 44 W. Va. 183. We see nothing in the facts of this case to bring it within any known
The question is therefore presented, where does the Sarver survey locate the two disputed lines of the western boundary of this Dillon tract? After leaving the acknowledged corner at “ C ” on the seyeral maps filed in the record, designated as a precipice of rocks at the mouth of a branch of the South branch of Cole, and following the footsteps of the original surveyor, the call of the Dillon patent is: “S. 62 degrees W. 1400 poles crossing some small branches and an East Fork of Little Cole River, and a South-West Fork thereof to a Sycamore marked FF .and WD, a birch and two sugar trees on the bank of the South West Fork, about three computed miles below Farley’s Rooting Camp on said stream and near a stream and near a number of pealed trees; S. 12 degrees W. 1080 poles crossing branch of Buffalo Creek, a branch of G-uyandott at one and a half miles to an ash, white walnut, two lynns, a sugar tree and buckeye in the head of a hollow, the head waters of Peter Huff’s Creek’’, point'“E” on said maps. The reverse of these calls in the Sarver survey and
If the calls of the patent from the corner at “ C ” are followed strictly it is conceded they would take us to the point “D” on these maps, where appellant claims the true corner of the Dillon lands in fact is. The patent call is for a birch and two sugar trees on the bank of South West Fork and near a stream and near a number of peeled trees; but when Miller, agent and surveyor for appellant' was there in 1884, these monuments were not found. He seems to have run from the corner at “C” on a bearing South 66° W. the difference in degrees being accounted for by the variation of the magnetic needle between the date of the original survey in 1796, and the date of his survey, 1884, eighty eight years. The next line Miller ran on a course South 10° and twenty-two minutes, while the call of the patent is South 12° W. to the
To sustain them in their position counsel for appellant cite and rely upon the general rule, laid down by some of our decisions, that when the location of the natural objects, or lines of a survey, called for, is doubtful or uncertain, resort may be had to extraneous or oral evidence, to show the actual intention of the parties, and that doubtful lines and corners must give way to the more certain courses or monuments called for in the title papers. Adams v. Alkire, 20 W. Va. 480; Lewis v. Yates, 62 W. Va. 575, 576; Mylius v. Raine-Andrew Lumber Co., 73 W. Va. 674; Id. 69 W. Va. 346; also Waterman v. Andrews, 14 R. I. 589; Lincoln v. Wilder, supra; Northern Pac. Ry. Co. v. United States, 191 F. R. 947.
But so far as the Sarver survey and the subsequent contracts and deeds based thereon are concerned the principles of these decisions can have no application. The record leaves no room for doubt as to the actual location of the corner at
Upon these considerations the appellant must fail and the decree be affirmed, unless it is entitled to succeed upon a title or claim to some extent, at least, independent of those depending on the contract and deed of Reeder and wdfe. - It is quite clear that its position is no better under the deed of 1897, from the Dillon heirs, for that deed also is limited to the survey made by Sarver. The disclaimer of Coon of 1884 is no better; it is not a grant, and if it was it is conditioned on there being an interlock between the Reeder title and the block of 1600 acres claimed by him. The later deed of Coon, relied on, we do not find in the record. Coon’s title is referred for its foundation to the Rutter and Etting grant, overlapping the Dillon grant. So we do not think the claims of appellant under these titles are sustained.
But the test remains to be applied to appellant’s claim made under the A. H. Dodge 500 acre tract, the A. H. Dodge 1502 acre tract, and that made under the deeds of 1901 and
But whether the evidence of payment of taxes on the 500 acres is sufficient or not, we think is unimportant in this case, for we have come to the conclusion that the Pocahontas Coal and Coke Company,, if not under any other title, was, at and before the date of the decree appealed from, under the deeds of Edward W. Clark and others of1901 and 1902, and possession and payment of taxes on the land, in a position to take by transfer the State’s title to the forfeited land covered by the Johnson title papers. The decrees adjudging his land forfeited and him entitled to redeem it, and denying appellant relief, were pronounced July 15, 1908, and August
One of the questions considered in reaching this conclusion was whether there was sufficient evidence of payment of taxes on the whole tract covered by the Dillon survey and these deeds of 1901 and 1902, to entitle appellant to the transfer of the State’s title. There is abundant evidence of possession within the boundaries of the original grant, and the evidence also satisfies us that appellant had actual, adverse and continuous possession by tenants of at least a part <pf the 500 acre A. PI. Dodge land, covering a large portion of the Johnson 1600 acres, forfeited in the name of Cook; and besides the evidence of payment of taxes by appellant or its predecessors, on that particular tract, the evidence is complete that continuously and from the date of the deed from L. B. Chambers, clerk of the county court, to -Ward and Lawson, of December 22, 1857, to the date of the decrees appealed from, the whole of the tract covered by the Dillon patent, 50,096 acres, was transferred to the land books, and continually maintained there, in the name of Ward and Lawson, or those claiming under their deed, including the Pocahontas Coal and Coke Company, appellant, and that there never was any forfeiture of that land, or any part of it for non-payment of taxes on the whole tract. And we ought to say in this connection, perhaps, that the evidence satisfies us that regardless of the Sarver survey, that the original boundary of the Dillon tract was as claimed by appellant. It was so surveyed by surveyor Harris in 1860. There is no satisfactory'evidence that Sarver found the original timber at the dogwood marked by him as a corner of said tract; his report filed and relied on by Johnson says he found the original corner, but the
Our conclusion is that to give appellant the right to the State’s title to the forfeited Cook or Johnson land, it was not necessary that the acreage assessment should have been changed after the deeds of 1901 and 1902. Under the circumstances this was not required. The taxes on the original boundary had been and continued to be paid, and to have added to the original acreage would have amounted to double taxation. Having carried the entire tract on the tax roll for all the years preceding the decree complained of, and paid • all the taxes thereon, more was not required.
These conclusions call for a reversal of the two decrees appealed from, ,and the pronouncement here of such decree as we think the circuit court should have rendered. The decree here-will be that the decree of the circuit court be reversed, and that all the land within the boundaries of the 100 acres, the 600 acres, or the 50 acres, forfeited in the name of Floyd Cook for the non-payment of the taxes thereon for the year 1896, and purchased by the State, as lies South of the line “C”, “D”, and within the Dillon patent, as surveyed by M. A. Miller, and as laid down on the maps or plats “M. A . M. No. 5” and map No. 1, filed with the deposition of J. E. Wagner, be dismissed out of the suit, and that the appellee Johnson be not allowed to redeem the same from the forfeiture thereof. But ,as there may be portions of the said forfeited tracts lying outside of the boundary of the Dillon land and. the land covered by said deeds of 1901 and 1902, and outside of the said line “C” “D” laid down on said plats, and which said Johnson may be entitled to redeem, the cause
Reversed, decree rendered and cause remanded.