112 Va. 649 | Va. | 1911
delivered the opinion of the court.
Mrs. Willietta Doughty instituted this action of ejectment against J. H. Whealton and D. N. Wisherd, partners trading as Whealton & Wisherd, and lessees of Marion Scott, to recover the possession of certain marsh land described in the declaration. Upon the trial of the cause-there was a verdict and judgment in favor of the plaintiff for the ■187% acres of land sued for and $125.00 damages on account of its detention. To that judgment this writ of error was awarded.
It appears that Marion Scott and defendant in error are the owners of adjoining farms in Northampton county, facing to the east on what is commonly known and designated as the “Broadwater,” which covers at high tide the marshes lying between the highland and the ocean, a distance of about eight miles; that under a lease from Scott, dated February 27, 1907, plaintiffs in error entered upon the marsh lying to the east of the highland belonging to their lessor, for the purpose of planting and propagating oysters thereon; that through said marshes, of which the 187% acres in dispute here is a part, more remote from the highland deep channels run, one of which is referred to in the old deeds in evidence as “the river running down the peninsular,” or “the river running along the seaside”; but near the highland a great number of drains, or as locally designated, “guts,” run in irregular courses through the marshes; and that plaintiff in error’s lessor, Marion Scott, claims the disputed marsh as a part of his farm by reason of his riparian rights, while defendant in error asserts title to and possession thereof, not only by reason of her riparian rights, but by adversary possession, for the statutory period, under a claim of right thereto.
The boundary line between the Scott farm and that of defendant in error, marked by trees and a ditch, runs from a county road in an easterly direction until it reaches the marsh land in dispute, lying in front and to the east of the farm of Scott and south of what would be a prolongation- of the boundary line between the highland of his farm and that of defendant in error; and the disputed marsh land is bounded on the north by said prolongated line, on the east by the “Broadwater,” on the south by Magothy bay, and on the west by that part of Scott’s farm conceded to be his. Along the east boundary of Scott’s highland separating it from the marsh is a “gut” or channel which “heads up” from Magothy bay to or beyond the point at which the line which separates the highland of Scott and that of defendant in error reaches the “gut,” and along the line separating the highlands of the two farms there is a puncheon fence for a short distance extending to the water in the “gut,” put there some years ago for the purpose, it is claimed, so to inclose the marsh land as to keep off the stock of the adjoining land owner and to enable defendant in error to use and enjoy the marsh in question as a pasture for her own
•The giving by the trial court to the jury of instructions “A,” “B,” “C” and “D” for defendant in error, and the refusal to give instructions 7, 8, 9 and 10, asked by plaintiffs in error, is assigned as error.
Instruction “A” is as follows: “The court instructs the jury that if they believe from the evidence that the plaintiff, Mrs. Willietta Doughty, was in actual possession of the land in controversy and claimed title thereto by virtue of deed of partition with James P. Fitchett, and the defendants in this action entered and took possession of any part of the said premises within fifteen years next preceding the institution of this action, then they should find for the plaintiff, unless they should further find that the defendants are the true owners of said land or were authorized by the true owner to enter thereon, and the burden is on the defendants to prove by a clear preponderance of evidence that they are the owners or were authorized by the true owner ■ to so enter.”
“Where the claimant of title relies upon a deed of conveyance, it is well settled both by reason and authority that in order to be effective as evidence of title it must either in terms or by reference to other designation give such description of the subject matter intended to be conveyed as will be sufficient to identify the same with reasonable certainty.” Warville on Ejectment, sec. 295.
The words, “what is the whole is to be determined by the limits owned or claimed,” used in instruction “C,” would be unobjectionable in a proper case, as where a plaintiff or a defendant in an ejectment proceeding was, upon reasonable grounds, contending that the land in controversy was within the description of boundaries given in his title papers, but to say that what is the whole of defendant’s land is to be determined by the limits claimed, though those limits are outside the boundaries described in his title papers or of his actual possession finds no sanction either in reason or authority. These words quoted from instruction “C” were taken doubtless from the case of Taylor v. Burnsides, 1 Graft. 191, and sanctioned in many other cases
In this case it is conceded that “wild and uncultivated lands cannot be made the subject of adversary possession while they remain completely in a state of nature.” A change in their condition, to some extent, is essential. City of Richmond v. Jones, 111 Va. 214, 68 S. E. 181; Harman v. Ratcliff, 93 Va. 249, 24 S. E. 1023; Turpin v. Saunders, 32 Gratt. 36.
In 1 Cyc., p. 990, it is said, that although there are some decisions apparently to the contrary, the weight of authority sustains the rule that the mere occasional cutting of timber on land is not alone such evidence of ownership as to amount to a possession adverse to the true owner, and the additional circumstances that the claimant . . . pastured his hogs or cattle there occasionally, or did other similar acts, will not constitute actual possession; and on p. 392 it is said that the occasional or periodical entry upon land to cut wild grass is not an act manifesting a purpose to take possession as owner, and does not constitute actual possession. Among the decided cases cited in support of the text just quoted is the case of Lambert v. Stees, 47 Minn. 141, 49 N. W. 662, where it is held that the fact that a person cuts hay on uninclosed land, lets his cattle roam over and pasture upon it just as they pasture on adjacent uninclosed lands, and prevents people from cutting and stealing wood on the land, is not sufficient to constitute adverse possession. See also Wheeler v. Winn, 53 Pa. 122, 91 Am. Dec. 186.
All the authorities agree that acts done upon land, requi
The case of Drake v. Curtis, 1 Cush. (Mass.) 395, is authority for the proposition that the ordinary presumptions and conclusions of law, arising from possession and use, can have no application in regard to open and uninclosed flats; that the constant use of such flats by one not entitled to claim or hold them as the riparian proprietor for the ordinary purposes of navigation, can give no exclusive or adversary possession. In the opinion in that case by Shaw, C. J., it is said: “The rule is simple, but is rendered complicated and difficult of application by the infinitely diversified forms which the seashore may present.”
As we have seen, the marsh land in controversy in this case is not within the descriptive boundaries of defendant in error’s title papers offered in evidence, and, therefore, if she has title to the marsh it must be by reason of her riparian rights under the statute law of the State and not by reason of a prescriptive right by virtue of the statute of limitations.
In Austin v. Minor, 107 Va. 101, 57 S. E. 609, the property in dispute was a marsh, valuable only for hunting, fishing and trapping, and to a limited extent as a range for hogs, one of the questions presented for decision being whether the property was capable of such enjoyment as accompanied by a claim or color of title would ultimately ripen into a good title; and the opinion by Keith, P., says, that if the tide ebbs and flows over this property it is doubtful whether a title by adverse possession can be acquired to it, separate and distinct from the rights of the riparian owner. Rowe v. Strong, 107 N. Y. 350, 14 N. E. 294.
The evidence in this case as to adversary possession in the
For the reasons already stated instruction “C,” given for the defendant in error, was also erroneous and should not have been given.
Instruction “D” in the form in which it was offered should have been refused. The fact that Edward T. Nottingham, the grantor of Marion Scott, did not claim title to the land in question, but in fact acknowledged that he was not the owner of it and disclaimed title thereto was competent evidence to be considered by the jury along with the other evidence in determining who was the true owner, and was property admitted for the consideration of the jury; and we think that instruction 10; asked for by the plaintiffs in error and refused by the court, should have been given, and that it sufficiently presents the law upon this aspect of the case. Sutherland v. Emswiller, 111 Va. 507, 69 S. E. 363.
The crucial question in the case is whether or not the “gut,” drain or channel which “heads up” from Magothy bay to or beyond the line which divides the highlands of defendant in error and plaintiffs in error’s lessor ebbs dry at ordinary low water for an appreciable distance from said line, and if the jury’s finding from the evidence be that said “gut,” drain or channel does so ebb dry, the law of the case
As the judgment of the circuit court has to be reversed, the verdict of the jury set aside and the cause remanded for a new trial to be had not in conflict with the views expressed in this opinion, we deem it unnecessary to consider the "other questions presented in the petition for this writ of error.
Reversed.