151 Va. 1005 | Va. Ct. App. | 1928
delivered the opinion of the court.
Thomas B. Griffin and others, heirs at law of John T. Griffin, filed in the trial court their petition under section 5490 of the Code of Virginia against the West-land Realty Corporation. The petitioners claimed that they and the Westland Corporation were the owners of two coterminous tracts of land in Norfolk
Plats were filed by both parties, showing their respective claims to the location of the dividing line. Commencing at a point on Churehland road the boundary line running south towards the Western Branch is not in dispute for a distance of about 2,300 feet. This brings the line to a point in a marsh near the head of a gut or little creek which meanders through the marsh to the Western Branch. If the division line, which is practically a straight line from the road, is continued by its extension from the point at or near the head of the creek to the low water mark on Western
To sustain their position the petitioners traced their title to Griffins back to a land grant for 472 acres from Governor Berkley in 1665 to one Thomas Norcutt, numerous intervening deeds and other muniments of title being filed as evidence. This land grant describes the tract as beginning at the mouth of a small gut and running north 160 poles, adjoining the land of James Harris, the northern boundary running westwardly and the western line being “a creek side” down to the branch, and then on the branch to the beginning. If this beginning point can be located, and it is shown that the land of James Harris is what is now Sunnyside, then that line running north between Norcutt and Harris seems to be the boundary line sought by the parties. The petitioners get their immediate title as heirs at law of John T. Griffin. The land, along that portion of the boundary in question, was conveyed to J. T. Griffin by Jno. T. Kilby and wife by deed of September 26, 1871. It is there described as situated on the north side of Western Branch, and bounded by the branch, the lands of Jno. S. Wright, the Jordan land and
The petitioners insist that the deeds and other muniments of title filed by them show a complete and valid devolution of . title from the Norcutt patent to their immediate ancestor, and taken together with the oral testimony definitely fix the boundary line as claimed by them. The wife of John T. Kilby was a daughter of Thomas Benn, and this property came to her through her father’s will and a partition. Thomas Benn acquired it from J. G. Hatton by deed of December 2, 1841. This deed gives the eastern boundary as along the lines of adjoining proprietors only.
The defendant, Westland Corporation, holds its immediate title under a deed to that corporation, conveying the Sunnyside farm, executed by S. L. Drake, February 2, 1920, which was contemporaneous with a deed to Drake from George 1ST. Wise, special commissioner. The Westland Corporation had become interested in the acquisition of this property before this time and its president had the title examined, and a survey made in 1917. These two deeds describe the Sunnyside property as bounded (so far as material here) “on the south by the Western Branch of the Elizabeth river, and on the west by a creek and by the land of John T. Griffin,” and further containing 110.66 acres “as shown by the plat of the said Sunnyside farm made by J. R. Kirk, county surveyor, September, 1917,” the plat being made a part of and recorded with the deed. This plat, showing the boundary line following the meanderings of the creek, from its mouth at the Western Branch northwardly, was filed by the defendant
The petitioners trace their title through various deeds to the Norcutt land grant mentioned above. These
Turning again to the title papers of Sunnyside, we find the first deed in which any lines are noted is one from John Whiddon to John Grimes, of May 15, 1760. This deed recites that the property was formerly owned by Ann Mofett and became escheated to the Colony, and was conveyed under an escheat warrant to John Whiddon by a Colonial land grant signed by the Governor and dated August 27, 1754. The deed adopts the lines appearing in the grant. In the grant the name of the former owner is noted as Ann Morcett. The description in this Whiddon land grant commences at a point on Western Branch, the southwest corner of the tract, and then runs the line northwesterly to a pine, a corner tree, thence southwardly to corner red oak, thence southeasterly to a red oak near Hatton’s house, thence “south twelve poles to pine standing on a small point by a creek that makes out of the said Western Branch of the Elizabeth river, thence by sundry courses along the said creek to the said Western Branch” and then “upon the Western Branch by its natural bounds,”
In Patterson v. Overbey, 117 Va. 345, 84 S. E. 647, cited by plaintiff in error, the court had nothing before it except the construction of the description of a boundary line in one deed, in which a creek was the boundary throughout the entire line between the properties.
The petitioners met this Whiddon patent, which granted only the one hundred acres owned by Ann
Without further detailing the evidence, we are satisfied that the trial judge correctly deduced, from the documentary evidence and all the oral testimony
The burden is on the plaintiff in error to satisfy the appellate court of error in the decision of the trial court. This has not been done. The judgment of the lower court is presumed to be right. Kiser v. Hannah, 148 Va. 594, 139 S. E. 279; White v. Reed, 146 Va. 246, 135 S. E. 809.
It is claimed by the plaintiff in error that title to the small piece of arable land to the west of the established line has been acquired by adverse possession. There is some evidence showing that occupants of the Sunnyside farm from time to time have, in the course of their crop raising, cultivated beyond the line of the oak tree to the west. The burden of establishing adverse possession was upon the plaintiff in error, as defendant on the trial. The evidence does not establish that either party intended, until in recent years, to claim otherwise than up to the true line. In Virginia the possession, claimed to be adverse, must have been hostile, and the intention to hold adversely is an indispensable element of adversary possession. See Sims v. Capper, 133 Va. 278, 112 S. E. 676; Radford Veneer Corporation v. Jones, 143 Va. 124, 129 S. E. 260; Stuart v. Meade, 119 Va. 753, 89 S. E. 866; Christian v. Bulbeck, 120 Va. 74, 90 S. E. 661; Schaubuch v. Dillemuth, 108 Va. 86, 60 S. E. 745, 15 Ann. Cas. 825.
On the whole ease we find no error in the judgment of the trial court, and it is therefore affirmed.
Judgment affirmed.