Bogg v. (No

• Decision Date: 28 September 1926
• Docket Number: (No, 5730)
• Citation: 102 W.Va. 240
• Parties: James M. Bogg v. W. F. Morrison et al.
• Court: West Virginia Supreme Court

102 W.Va. 240

James M. Bogg

v.W. F. Morrison et al.

(No, 5730)

Supreme Court of Appeals of West Virginia.

Submitted September 22, 1926.

Decided September 28, 1926.

1. Boundaries Location of Beginning Corner Near Mouth of

Run Cannot be Established as Conclusion of Law Because Deed Described it as Water Birch on Bank of River and Line as Running Thence up Such Run With Line of Another; Phrase "Up a Run'' Does Not Necessarily Mean Following Meanders of Water Course, Especially Where Another Expression Militates Against it. Where, in ejectment, there is a sharp controversy over the location on the ground of a beginning corner of a dividing line (the correct location of which line is the issue in the case), the location thereof at a point near the mouth of a run cannot be established as a conclusion of law because the deed describes the beginning corner as a water birch on the bank of a river and running thence up a run with the line of another to another corner. The phrase "up a run" does not necessarily mean following the water course literally with the meanders thereof; and especially where there is another expression in the deed which militates against it. (p. 244.)

(Boundaries, 9 C. J. §§ 7, 348.)

2. Same Where Location of Beginning Corner was Disputed

and, Description Thereof in Deed Was Ambiguous, Instruction That Plaintiff Had Burden of Proving Dividing Line Claimed by Him by Preponderance of Evidence, and, if He Failed to Find for Defendant, Was Not Error. In such case it is not error to instruct the jury that the burden is on the plaintiff to prove by the preponderance of the evidence the location of the dividing line as claimed by him, and if he fails to carry that burden they should find for defendant, (p. 247.) (Boundaries, 9 C. J. § 29 6.)

3. Ejectment If Trial Results in Hung Jury, and on Second

Trial, Without Objections, Same Pleadings Are Used, Error in Permitting Disclaimer to be Filed Without Withdrawing Plea of Not Guilty Not Objected to, is Not Ground for Setting Aside Verdict for Defendant.

If in the trial of ejectment and after a plea of not guilty has been interposed, defendant tenders and is permitted to file and have spread upon the record a disclaimer of part of the land sued for, without objection or exception upon the part of plaintiff, and the parties proceed to trial upon the issues thus made, resulting in a hung jury; and later the case goes to trial before another jury, without objection, upon the pleadings so made up, resulting in a verdict for defendant, the error in permitting the disclaimer to be filed without first withdrawing the plea, tacitly agreed to by plaintiff, is not good ground for setting aside the verdict, (p. 249.) (Ejectment, 19 C. J. § 325.)

4. Same

A disclaimer which disclaims all title to and possession of land lying beyond a line designated with certainty on the trial map and giving the courses, distances and termini thereof, is sufficiently definite, (p. 250.)

(Ejectment, 19 C. J. § 130.)

5. Boundaries Where Issue Was on Location of Dividing Line

and Verdict Was for Defendant Who Had Filed Disclaimer of All Lands Beyond Line on Official Map Used at Trial, Judgment May be Entered Fixing Line Laid Down in Map As True Division Line.

And where in ejectment the issue depends upon the location of a division line and the verdict is for the defendant, and there is a disclaimer by him of all the lands described in the declaration beyond a line designated and fixed on the official map used as such in the trial, it is sufficient on which judgment may be entered fixing the line so laid down on the map as the true division line. (Volley v. Pease, 72 W. Va. 321.) (p. 250.)

(Boundaries, 9 C..J. § 355.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of Syllabi.)

Error to Circuit Court, Braxton County.

Ejectment by James M. Boggs against W. F. Morrison and others. To review a judgment setting aside a verdict for defendants they bring error.

Judgment reversed; verdict reinstated;

judgment entered here.

Brown, Jackson & Knight and Lon H. Kelly, for plaintiffs in error.

Haymond & Fox, for defendant in error.

Lively, Judge:

Morrison and others, defendants below, here plaintiffs in error, and hereinafter called "Morrison" or "defendants", prosecute error to the action of the circuit court in setting aside a verdict in their favor in an action of ejectment instituted by defendant in. error, James M. Boggs, hereinafter called "Boggs" or "plaintiff". The location of a division line is the basis of the controversy. The trial map will make the controversy clearer.

Morrison asserted that the true location of the division line is from a water birch on the bank of Elk River, thence in a straight course southeast to a maple on top of the divide between Raccoon Creek and Mill Creek, laid down on the trial map as the line from B to A; while Boggs claims the line as beginning at D on the map, a, water birch (now gone) near the confluence of Shop Run and Elk River, thence running with Shop Run to a maple at Cobbs Rocks (on divide between Elk River and Mill Creek), thence to sugar near low gap laid down on the map; or a straight line from the water birch corner at D to the black oak at A. It is not perfectly clear which of these two last mentioned lines Boggs claims as the true line. His original declaration described the line as beginning at a sycamore (D), thence S. 39 E. 189 poles to the large black oak on top of the hill (A), thence N. 30 E. 275 poles &c. but in an amended declaration the dividing line is described as beginning at a water birch at the mouth of Shop Run (D), thence up said Run with Silas Dean's land line to a maple on the divide between Raccoon Creek and Mill Creek (presumably A), thence S. W. 60 poles to a sugar near a low gap (marked on the map), thence back up to A and thence N. E. 275 poles &c. His counsel says that if the jury had adopted the beginning corner at "D" (and which he claims should have been done as a matter of law), the jury could have found either of the said two last mentioned lines as the true dividing line, under the evidence, which would have been final. So, whether the true beginning point of the dividing line is at "B" on the map or at "D", about 29 rods below and down the river from "B", is vital. Plaintiff says the evidence without contradiction establishes the beginning corner at " D ", and the court should treat the same as established as a matter of law. The jury evidently came to the conclusion that "B" was the true beginning corner, for Morrison disclaimed ail the land above and north east of the line from "B" to "A" on the map, and pleaded not guilty as to all the land below and southwest of that land. The jury's verdict is simply, "We the jury find for the defendants."

Boggs further says, in addition to his claim just stated, (the overwhelming establishment of the beginning corner at "D" making it the true corner as a matter of law), that the instructions given for Morrison were misleading and erroneous, and the verdict was contrary to the instructions given for the plaintiff.

These were the principal grounds (others will be stated) upon which the motion to set aside the verdict was based, and the court set aside the verdict presumably upon one or both of these grounds. It is urged by Boggs that the trial court committed no error in setting aside the verdict on the grounds stated.

The title to the land in controversy comes from a common source. It is a part of a 200-acre tract owned by James A. Boggs, who in 1848 conveyed it to John J. Dean. Becoming involved financially, John J. Dean conveyed the 200 acres to Holt, trustee, to secure payment of a debt owing to James A, Boggs. Prior to execution of the deed of trust he entered into some verbal arrangement with his two sons George and Silas C. whereby he agreed to give them the land if they would pay or help pay the indebtedness. These sons divided the land by parole agreement, and the dividing line made by them is the dividing line now in controversy. Where did it begin, how did it run through the 200-acre tract, and where did it end? Later, in 1857, Holt, trustee, sold the land under the trust deed and it was purchased by James A. Boggs, and the title reinvested in him. In 1865, James A. Boggs deeded a portion of the 200-acre tract to his brother Francis C. Boggs. Morrison and the other defendants are successors in title to Francis C. Boggs. Later, in 1889, James A. Boggs' land was sold in a creditor's suit and plaintiff, J. M. Boggs, became the purchaser, the deed to him describing the land as '' containing 100 acres being a residue of a tract of land of 200 acres after abating one-half thereof conveyed by J as. A. Boggs to F. C. Boggs, said 100 acres being part of the 200 acres conveyed by II. A. Holt, trustee." The deed from James A. Boggs to Francis C. Boggs in 1865, under which Morrison's title is derived, describes the land conveyed as '' Beginning at a water birch on the bank of said river (Elk) and running thence up a run with a line of Silas C. Dean's land to a maple on top of the divide between Raccoon Creek and Mill Creek, corner to George Dean's land, & running thence to a sugar tree near a low gap, George Friend's corner, thence with the lines of Friend to Peter Reips land & thence with said Reips lines to James Smiths land & thence with said Smiths lines to Enoch Cunningham's land & thence with said Cunningham's line to said river & thence up said river with the meanders thereof to the beginning, containing 200 acres more or less.'' It will be observed that the description of the boundaries after the sugar tree near a low gap is reached is unimportant, for there the original 200-acre James A. Boggs tract is left and other land, foreign to this controversy, is included. But it is to be noted that when the line reaches Elk River, it runs with the meanders thereof, and. not with the general direction or by straight line; whereas, the description of the line from...