146 Va. 246 | Va. | 1926
delivered the opinion of the court.
The appellant filed his. bill against J. A. Reed and May E. Reed, the appellees, alleging that as the owner of 462 acres of land he was entitled to travel across the property of the appellees to a point near the Mt. Plains church on the public road leading from Mechum’s River station to White Hall. He claims this right of way by prescription, and also alleges that it is a public road across the lands of appellees.
The trial court denied the relief prayed for and dismissed the bill. It is from this decree that the appeal is taken.-
It is perfectly apparent from the evidence, which is both conflicting and confusing, that the appellant has failed to establish his claim to a right of way by prescription.
His land is separated from the land of the appellees; there is no common source of title shown. He has access to other public roads, and he has no such right of way appurtenant to his farm by implication or of necessity.
In this court, the claim that a public road was established on this location in 1861 is emphasized, and this presents a more difficult question.
The facts necessary for the comprehension of this question appear to be these: As has been stated, the lands of White, the appellant, and the lands of the appellees are not derived from a common grantor; no part of either tract appears at any time to have been the property of the same owner. Between the lands of White and the appellees there are lands formerly owned by Clarke, and now held by Humphreys. The road which it is claimed was established as a public road leads from the residence of one of the Clarke or Humphreys tracts of land, through that tract to and through the lands of the appellees to the public road at the Mt. Plains church. The Humphreys twenty-nine acre tract and the land of appellees (Reed) were once held by the same owner, who sold off this twenty-nine acre tract (now owned by Humphreys) to Clarke. This twenty-nine acre tract so sold off is separated from the Mechum’s
The record discloses these court orders:
June 8, 1859. “On the petition of Thomas J. B. Clarke, it is ordered that Joseph Dettor, one of the road commissioners of this county, be directed to view the ground for a road leading from the residence of the said Clarke to the public road running from White Hall to Mechum’s River depot — passing on the line between the lands of William Ballard and William Owens — thence through the lands of said Ballard — thence through the lands of said Owens; striking the public road near the residence of said Owens; and to report to the court the conveniences and inconveniences that will result, as well to individuals as to the public if such road be established, and especially whether any yard, garden, orchard, or any part thereof, will in such cases have to be taken.”
July 2, 1860. “In the matter of the petition of
October 7, 1861. “Clarke v. Owens, etc., on petition for a road. On hearing the parties by their attorneys it is considered by the court that the road petitioned for be established agreeably to the report of Joseph Dettor, road commissioner. And it is ordered that the petitioner, Thomas J. B. Clarke, and William Owens and wife to' open and keep in order the said road. ’ ’
It is solely upon these orders that the appellant relies to show the establishment of the road claimed. There is no report of the road commissioner, Joseph Dettor; there is no plat showing the location or width of the road; and the right of way claimed does not follow the course indicated in the petition as recited in the first order of June 8, 1859. It there appears that its beginning is at the residence of Clarke (now Humphreys) and its terminus at the public road running from White Hall to Mechum’s River depot, and that this corresponds generally with the right of way claimed. But this is all that identifies it, and it is observed that its precise terminus at Mt. Plains church is not stated. It does pass along the edge of, but is not on the lands formerly owned by, William Ballard, and its width is not shown. Then it is not shown that the report of Joseph Dettor, referred to in the order of October 7,
The appellant’s case depends absolutely upon these three orders and upon the fact that long before and ever since the orders were enteréd there has been a way leading from the Humphreys house to the White Hall and Mechum’s River road. The conflict in the evidence and the confusion in the record were so apparent to the attorneys and to the trial judge that by consent he went upon the premises for the purpose of inspection and to enable him to apply the evidence. We have no such opportunity for inspection, and find it exceedingly difficult to apply the evidence to the conceded facts. There can be no fair doubt, we think, that the burden was upon the appellant, who was the complainant, to establish the existence and location of this public road with reasonable certainty.
It was in Gaines v. Merryman, 95 Va. 665, 29 S. E. 738, that this court said: “Nor can we presume a dedication or acceptance upon the part of the proper authorities merely because records have been lost or destroyed. The destruction or loss of public records gives warrant for no such presumption, the effect of such loss being to change the mode of proof as to their contents and to admit secondary evidence in the place of an exemplification of the record.”
In Bare v. Williams, 101 Va. 800, 45 S. E. 331, this is said: “It appears from the records of the county court that in the year 1788 a public road was established from the town of Lexington to a gap on South
These expressions are quite applicable to the facts of this case. There is no evidence from which it can be confidently inferred that the location of the public road referred to was identical with the ancient right of way which led from the Humphreys residence through the lands of the appellee to the public road near Mt. Plains church. There is evidence that the location of
It seems to us that under this evidence it would be a great wrong to the appellees to hold that there is this public road of indeterminate width through and across their lands.
Even, if, however, there is room for fair difference of opinion as to the effect of the testimony introduced and the burden of proof, the uncertainties of the case are so great and so numerous as to lead to the same result. This because of the rule stated by Lord Wensleydale, in Mayor, &c., of Beverly v. Attorney General, 6 H. L. Cas. 332, in this language: “I take it to be perfectly clear that when a court of error is considering a former decision on appeal, that decision is not to be overturned unless the court of error is perfectly satisfied that the decision is wrong. Prima facie it is to be considered a right decision, and is not to be deprived of its effect unless it is clearly proved to the satisfaction of the judge that the decision is wrong; but he must consider the whole circumstances together, and if he still feels satisfied upon the whole of the case that the decision is wrong, he ought undoubtedly to overturn it; it is only to be considered prima facie right. The onus probandi lies on the opposite party to show that it is wrong, and, if he satisfies the conscience of the judge that it is wrong, it ought to be reversed.”
Judge Burks, the elder, in Herman v. City of
In Shipman v. Fletcher, 91 Va. 487, 22 S. E. 458, Riely, J., expresses it thus: “The judgment of a court of competent jurisdiction is justly entitled to great weight. It is always presumed to be right until the contrary is shown. An appellate court will not overturn it unless satisfied that it is wrong. It devolves on the party complaining to show error, and to satisfy the appellate court that the judgment or decree complained of is wrong.”
This court has repeated and enforced that rule frequently. Smith v. Smith, 92 Va. 700, 24 S. E. 280; Va. Coal Co. v. Thomas, 97 Va. 538, 34 S. E. 486; Atlantic & Danville R. Co. v. Delaware Construction Co., 98 Va. 514, 37 S. E. 13; Stevenson v. Levinson, 103 Va. 592, 49 S. E. 974; Morrissette v. Cooke, 122 Va. 593, 95 S. E. 449; Reynolds v. Adams, 125 Va. 315, 99 S. E. 695; Wood v. Lester, 126 Va. 173, 101 S. E. 52.
This is a ease for the application of that rule.- The impartial mind is left in a state of uncertainty, possibly due to the fact that the record of the proceedings in the road case has been lost or destroyed, but this court ought not to reverse the decree of the trial court unless satisfied that it is wrong. The burden which is east upon the appellant in this court is not merely to lodge a doubt, but to satisfy this court of the error assigned. It would be going too far, perhaps, to say that error must be demonstrated, for that might be construed to imply mathematical precision, but certain it is that an
While we- are in doubt, undér the facts shown, it must be conceded that the trial judge, having inspected the premises, was in a better position to determine the uncertainties of the case than we are; therefore, we are of opinion to affirm the decree.
Affirmed.