3 W. Va. 148 | W. Va. | 1869
The point requiring the determination of the court in this case is the proper construction to be put upon the partition deed of John and Samuel Lewis, in which they claiming to be the joint owners of a thousand
It will be observed that the poiut on the Kanawha river three poles above the mouth of Scary creek is definite and certain. So also is the line thence across the bottom to the base of the hill three poles above the creek. At the end of this line at the base of the hill begins the line of controversy, and for brevity I will call this point the pivot point, and the succeeding line, which is the line of controversy, the random line. ' From the pivot point to the back line of the survey the random line is to be run. Such is the descriptive call of the deed, but with these further provisions, that the said random line is to extend from the pivot point to the back line of the survey, “ such course as will throw five hundred acres of said tract of 1,000 acres belowr said division line.”
The report of the surveyor and evidence show that the back line of the survey was 508 poles long. So that the first part of the call of the random line from the pivot point to the back line of the survey is fully satisfied if it strike the back line at any point between its two extremities. This random line, therefore, may vary at one end, a distance of 508 poles, and still meet the express call for the back line as well at one end or the other or in the middle of it. And as the random-line is to include, in the part of the survey below that line the quantity of 500 acres, much latitude is allowed to vary the line on the pivot point to the whole extent of the back line of 508 poles in length, in order to include, if necessary, the 500 acres 'on the lower side of it.
I think there can be no satisfactory reason given for departing from the straight line between the two points ascertained; and if the quantity called for be found not to be embraced by the straight line the party can only obtain relief in a court of equity, on a proper case made, but in a court of law must be confined within the bounds of his partition deed, as above construed. As it appears from the evidence that the trespass alleged was done on the land in question above the random line if run straight, though below it if run crooked, to include the quantity, in which former case the defendant in error had no legal right to or possession of the land above the straight line, it is clear that the judgment should be reversed with costs to the plaintiff in error, the verdict set aside, and the cause remanded to the circuit court of Kanawha with instructions to grant the plaintiff in error a new trial upon the payment of the costs occasioned thereby.
The objection that this case, which is trespass quare clausam fregit, could not be revived in the name of the personal representative of one of the joint plaintiffs, who died pending the action and before verdict, I think is well taken, because the action survived to the other joint plaintiff, and whether it so survived or not, in neither case could it have been revived in the name of the personal representative of the deceased plaintiff. But, inasmuch as it was revived by consent in the name of the sole devisee of the decedent, it would seem highly expedient and proper that that which had been done by consent should stand, and not be permitted afterwards to be made the ground of objection by either of the parties consenting.
Judgment reversed.