Trimmer v. Martin, 141 Va. 252

Trimmer v. Martin

141 Va. 252 | Va. | 1925

Sims, P.,

after making the foregoing statement, delivered the following opinion of the court:

There are a number of questions presented by the assignments of error, but in the view we take the consideration of only one of such questions is necessary for the decision of the case, and that is as follows:

1. Was the verdict, in its location of the line involved as the true dividing line between the lands of the plaintiff and defendant, contrary to the law and the evidence?

The question must be answered in the affirmative.

So far as the evidence discloses, neither the plaintiff nor defendant acquired any title by adverse possession, either by actual or constructive possession under claim or color of title, for the requisite statutory period. Both derived title solely under, and, therefore, had to rely solely upon, the deed of partition and the Wingfield plat therein referred to and made a part thereof, to define the true boundaries of their respective lands. Griggs v. Brown, 126 Va. 556, 102 S. E, 212; *258Bradshaw v. Booth, 129 Va. 19, 38, 105 S. E. 555; and cases cited in those decisions. The partition deed and plat constitute the title papers—the sole source oí title— of both the plaintiff and defendant. The title papers contain no designation of any corner or line monument whatever anywhere on or along the dividing line in question as fixing its location. The only data on the subject designated in the title papers are corners of the land with adjacent land owners away from the aforesaid dividing line, and the courses and distances from the said corners to the respective ends of said dividing line, and the fact that that line is a single straight line, all as shown on the Wingfield plat. That plat, to any competent surveyor, designates such courses and distances, even where not written out on the plat; since they may be readily ascertained therefrom by the use of the surveyor’s instruments. The established rule, that the location on the ground of courses and distances designated in the title papers must give way to known or reputed monuments, has reference only to monuments which are designated in the title papers. Evidence of the location of monuments not designated in the title papers may be properly considered in certain eases, for certain purposes, but not in such a case as that before us, to alter the designation of the courses or distances of the boundary lines contained in the title papers, under which alone both plaintiff and defendant derive title. Hence, none of the evidence with respect to the location on the ground of certain corner stakes, or of the oak tree, marked fore and aft, or of other things appearing on the ground, mentioned in the evidence, but not designated in the title papers, can have the effect of altering the aforesaid courses and distances as designated in the title papers in the instant case, fixing the location of the respective ends of the aforesaid dividing line.

*259Leaving out of consideration the last mentioned evidence, it is plain that there is no evidence whatever to support the verdict in its location of the line in controversy. On the contrary, the testimony of the plaintiff’s own chief witness, the surveyor for the plaintiff, is to the effect that there is no practical difficulty in the way of locating on the ground the line in controversy as designated in the title papers, and that the verdict line nowhere coincides with the line in controversy, as so designated, except where they cross each other. (See the sketch preceding this opinion, on which the line in controversy is designated in the title papers, as results from the location which such surveyor made on the ground of the ends of such line, is approximately shown as A-B, and the verdict line as A’ B’.)

The consideration that one of the circumstances which induced such surveyor to make the verdict line deviate at one end (at A’ on the above sketch) from the true location of it there as designated in the title papers, was in order to give the plaintiff the twenty-four acres called for in the title papers, does not alter the correctness of the conclusion just stated, because no need of change of the line for that reason would have arisen if the other end of the line were located at the point designated in the title papers (at B on the above sketch). It is true that the plaintiff in his petition alleges that the true line begins at the point where the verdict line begins (at B’ on said sketch), and runs thence to the oak tree; and in that condition of the pleadings he cannot be heard to complain that that end of the verdict line deviates from the true location of it there as designated in the title papers; but that furnishes no evidence to support the line in its aforesaid deviation at the other end of it.

The case must, therefore, be reversed, because there *260is no evidence such, as the law requires to support the verdict. We shall not enter a final judgment, however, as we feel that the ends of justice will be best attained by remanding the cause, with leave to the plaintiff to amend his petition in its allegation of the location of the true line claimed by him as designated in the title papers, and let the case be retried, in accordance with the views expressed in this opinion, upon the issue of fact as to the correct location on the ground of the boundary line in question as designated by the data furnished by the title papers, without the admission of any parol evidence as to any corner or line monument, or mark, on the ground of such dividing line not mentioned in the title papers. This, of course, does not mean that extrinsic evidence will not be admissible to locate on the ground such of the corners C, D, E or P (see portion of Wingfield plat copied above), as may be found material to be located as designated in the title papers, under the well settled rule on that subject. Bradshaw v. Booth, supra, 129 Va. at p. 38, 105 S. E. 555.

The case will also be remanded with leave to the plaintiff, if he so desires, to amend the allegations of his petition with respect to his interest in the land, so as to conform to the fact in that particular shown in evidence; and with direction that the wife of the plaintiff be joined as coplaintiff with her husband, if she shall so move the court. This will doubtless dispose of all questions arising out of those matters presented by the assignments of error, so that there is no occasion t.o deal with any of such questions in this opinion.

The case will be reversed and remanded, as above stated.

Reversed and remanded.