Blain v. Woods, 11089

Citation115 S.E.2d 88,145 W.Va. 297
Decision Date18 July 1960
Docket NumberNo. 11089,11089
CourtSupreme Court of West Virginia
PartiesIra E. BLAIN et al. v. W.H. WOODS.

Syllabus by the Court

1. The trial court's refusal to permit the jury to view the property in an action to determine the boundary line is within the sound discretion of the court and cannot constitute error when the court properly directs a verdict for one of the parties.

2. "Error, predicated upon the introduction of improper evidence which has been permitted to go to the jury without objection or exception, cannot be considered in the appellant court.' Point 4, syllabus, Williams v. [Lincoln] County Court, 90 W.Va. 67 .' Pt. 1, syllabus, Chesapeake & Ohio Ry. Co. v. Johnson, 137 W.Va. 19 .

3. A court of record speaks only through its record and where it is stated in an order of a court of record that a proper verdict was returned by the jury and signed by the foreman thereof, the return of the verdict cannot be questioned in an appellate court.

4. The general rule where title to property is involved is that where both parties acquire title from a common grantor plaintiff is not required to go back of the common source.

5. 'The opinion of a suveyor as to the true location of a boundary line is inadmissible as evidence.' Pt. 11, syllabus, Mylius v. [Taine-Andrew] Lumber Company, 69 W.Va. 346 .

6. Only lost monuments may be proved by reputation and it is neither necessary nor proper to attempt to prove existing monuments in such manner.

7. 'It is a general rule that, in locating boundaries of land, resort is to be had first to natural landmarks, next to artificial monuments, then to adjacent boundaries, and last to courses and distances.' Pt. 1, syllabus, Matheny v. Allen, 63 W.Va. 443 .

8. 'Where the evidence plainly and decidedly preponderates in favor of a party it is not error to instruct the jury to return a verdict for him. On a motion for a directed verdict the court should be guided by what its action would be if a verdict should be returned for the opposite party and a motion made to set aside the verdict.' Pt. 4, syllabus, Bank of White Sulphur Springs v. Lynch, 93 W.Va. 382 .

Horace S. Meldahl, Charleston, for plaintiff in error.

Jackson, Kelly, Holt & O'Farrell, David D. Johnson, Charleston, William H. Rardin, Point Pleasant, for defendants in error.

BERRY, Judge.

This is a statutory proceeding under Code, 55-4-31, as amended, to establish a boundary line between property located in Mason County, Clendenin District, West Virginia, owned by the petitioners or plaintiffs, Ira E. Blain and Mattie A. Blain, and the defendant or respondent, W. H. Woods. This case was tried in the Circuit Court of Mason County, West Virginia, and at the conclusion of all the evidence the trial court directed a verdict in favor of the plaintiffs and entered final judgment thereon on May 5, 1959, to which judgment this Court granted a writ of error and supersedeas on October 5, 1959.

The parties received their lands from common grantors, Randall M. Hogsett and Edna Hogsett, his wife. The first conveyance was made from the Hogsetts to the Blains on July 28, 1944, and four years later, on June 10, 1948, the Hogsetts conveyed to Woods a tract of land which was adjacent to the tract conveyed by them to the Blains. The deed from the Hogsetts to the Blains in 1944 was not by courses other than by cardinal points of the compass, although monuments and distances found and fixed by the parties were used and the tract conveyed consisted of about 5 acres. The deed from the Hogsetts to Woods in 1948 was by courses and distances with some monuments and contained about 80 1/2 acres but the call for the line in question in this proceeding is not ascertainable by said deed as a separate line due to the fact that it was apparently involved in other lands not adjacent to the land of the Blains. However, the northernmost line of part of the Blain tract which is adjacent to land conveyed to Woods does have a call in the deed from the Hogsetts to Woods in 1948, which is ascertainable, and is as follows: 'S. 88~ E. passing over an iron stake set on top of the bank of the road and with the land of Ira Blain (at one time a part of this tract) and passing just northerly of a large sycamore tree near the bank of a small creek, in all 34 poles to northwest corner of the Newman land, same being a corner to Iran Blain; * * *'.

The point of beginning in the deed from the Hogsetts to the Blains, a locust post on the eastern line of the Baltimore and Ohio Railway Company's right of way, is not in controversy, both parties being in agreement as to the location of this monument. The plaintiffs contend that the line in question in this litigation as surveyed starts at this monument and runs north 82~ E. 297' to an iron pin which was placed in the ground as a monument or marker by Hogsett and Blain at the time the conveyance was made in 1944, but Woods claims that the line in question runs from the agreed monument with a hedge to a point about 43 feet south of the iron pin or stake placed in the ground by Hogsett and Blain. This controversy involves a wedge shaped parcel of land which would be the property of the plaintiffs if the boundary line in question is where Blain contends it is located, but would be the property of Woods if it is where he contends the line in question is located. The question of adverse possession does not arise in this case because both parties apparently mowed or cut the grass on the area involved and no one has lived in the house located on defendant's property since 1955.

It might be well to state here that the hedge along which Woods contends the line in question runs was not located in its present position at the time the Blains obtained their deed from the Hogsetts in 1944, but was located south of a garage which was later converted into a dwelling, at which time Blain had an old colored man remove the hedge to the north side of the garage in connection with converting it into a dwelling.

Before the trial of this case Blain had an engineer survey his property. This engineer later testified at the trial and stated that he started his survey at the second monument in the deed from the Hogsetts to the Blains in 1944, being a stake corner in the J. L. Buskirt line and he ran the lines called for in said deed in reverse, by courses and distances, and in this survey located most of the monuments called for in said deed and located the line in question in this controversy as being N. 82~ E. 297' between the point of beginning in the deed from the Hogsetts to the Blains and the iron pin placed there by them at the time the deed was made. The original deed called for 18 rods between these points which was the exact distance found by the surveyor. The next call found by survey was N. 11~ 10 minutes W. 264' to a corner post along the state road right of way, which corresponds with the original deed. The next line, the northernmost line of the Blain property is S. 88~ 40 minutes E. and runs north of a sycamore tree 558' to a fence corner. The original deed called for 32 rods and the distance measured by the surveyor is about 20' farther than that called for in the original deed but it ended at the fence corner.

It is interesting to note that this S. 88~ 40' E. line is almost the exact call in the deed from the Hogsetts to Woods made in 1948 and which Woods admits was his line at that time.

The other lines run by plaintiffs' surveyor conform closely to the original deed made in 1944 and close at the point of beginning. The fact that plaintiffs' surveyor ran the lines in reverse seems to be a point of contention in the brief filed on behalf of Woods, but of course it would make no difference which way the lines were run so long as the calls conform with the original deed.

A contention is also made with regard to an old military line being mentioned in the deed from the Hogsetts to the Blains in 1944, it apparently being the contention of the defendant that this old military line was several miles away. However, it should be noted that the military line is also referred to in the deed from Randall M. Hogsett, Jr. and Myrtle Hogsett, his wife, to W. H. Woods in 1953, and from Charles J. Hyer, Special Commissioner to W. H. Woods in 1955, which apparently referred to property at about the same location because each one reserved from the conveyances the 5 acre tract conveyed to the Blains by Hogsett, Sr. in 1944.

The defendant Woods also had a surveyor survey the property of the plaintiffs and the only differences in the two surveys are in a northermost line of the Blain property, which is called for as S. 88~ E. 34 poles in the Woods deed of 1948 and in the line in question which Woods' surveyor fixes along the hedge where Woods claims the line is located. In order to locate the line in question along the hedge where Woods claims it is, it was necessary for his surveyor to run a line south of the sycamore tree from a point at the fence corner on the eastern end to the western end of the northernmost line of the Blain property; but this northernmost line was definitely fixed in the deed to Woods in 1948 as north of the sycamore tree. This line, as now claimed by Woods in this suit, terminates at a point on the western end over 40' south of the western corner claimed by Blain by existence of his deed of 1944 and fixed by a course of S. 88~ E. in Woods' deed of 1948. This dropping of the line was done in order to make the line conform to the hedge line claimed by Woods which makes this line extend about 40' south of the iron pin and several feet longer than the line in question claimed by Blain and as indicated in his deed from the Hogsetts in 1944. The distance from the western corner of the northernmost line of the Blain property to the iron pin is 16 rods and of course it is about the same distance from...

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13 cases
  • Thomas v. Ramey
    • United States
    • West Virginia Supreme Court
    • October 10, 1972
    ...action would be if a verdict should be returned for the opposite party and a motion made to set aside the verdict.' See Blain v. Woods, 145 W.Va. 297, 115 S.E.2d 88. In the instant case, the plaintiff crossed Heber Street at a marked crosswalk. The automobile traffic approaching the crosswa......
  • CONLEY v. Conley, Bankruptcy No. 2:04-20367.
    • United States
    • U.S. District Court — Southern District of West Virginia
    • September 29, 2010
    ...Citi's primary contention is its first one, that the Branham survey is “inadmissible.” 4 (Citi Br. at 16). Citing Blain v. Woods, 145 W.Va. 297, 115 S.E.2d 88 (1960); Mylius v. Raine-Andrew Lumber Company, 69 W.Va. 346, 71 S.E. 404 (1911), it asserts “the opinion of a surveyor as to the tru......
  • Boggs v. Settle
    • United States
    • West Virginia Supreme Court
    • March 23, 1965
    ...law. State ex rel. Ashworth v. Boles, W.Va., 132 S.E.2d 634, 635; Bowles v. Mitchell, 146 W.Va. 474, pt. 1 syl., 120 S.E.2d 697; Blain v. Woods, 145 W.Va. 297, pt. 3 syl., 115 S.E.2d 88; Davis v. Fire Creek Fuel Co. et al., 144 W.Va. 537, pt. 9 syl., 109 S.E.2d 144; State ex rel. Kuhn v. Ad......
  • Somon v. Murphy Fabrication & Erection Co.
    • United States
    • West Virginia Supreme Court
    • March 1, 1977
    ...are given superiority over the calls in the event of a conflict. Vandetta v. Yanero, W.Va., 200 S.E.2d 674 (1973); Blain v. Woods, 145 W.Va. 297, 115 S.E.2d 88 (1960); Matheny v. Allen, 63 W.Va. 443, 60 S.E. 407 Thus, we have a concurrence of the calls in the two deeds along the disputed ar......
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