Buck v. Newberry
| Decision Date | 22 April 1904 |
| Citation | 47 S.E. 889,55 W.Va. 681 |
| Parties | BUCK v. NEWBERRY. |
| Court | West Virginia Supreme Court |
Submitted January 18, 1901
Syllabus by the Court.
1. In an action of trespass for cutting trees, and the deed of the plaintiff excepts certain tracts within the outside boundary of the land, the plaintiff must show that the trees cut were not on the excepted land.
2. In an action of trespass for cutting trees, under a plea of the statute of limitations, the defendant must show the date of such trespass, and, where part of the cutting of trees was more, and part less, than five years before suit, he must show what part is barred by the statute.
3. Rarely can the Supreme Court set aside a verdict dependent on weight of evidence, and approved by the circuit judge. The Code of 1899, c. 131, § 9, does not, even if it could do so, under the Constitution, direct the courts as to what effect they shall give evidence upon a motion for a new trial.
Error to Circuit Court, Wyoming County; J. M. Sanders, Judge.
Action by Frank Buck against Harman Newberry. Judgment for defendant, and plaintiff brings error. Affirmed.
Campbell Holt & Campbell, H. K. Shumate, and J. W. McCreery, for plaintiff in error.
Douglas & McGrath, for defendant in error.
Frank Buck brought an action of trespass quare clausum fregit against Harman Newberry, in the circuit court of Wyoming county, for breaking and entering and cutting trees upon a close of Buck containing 63,000 acres, part of a tract of 480,000 acres of land granted by Virginia to Robert Morris 23d March, 1795. A deed from Phillip A. Trimble to Buck under which Buck claimed, reserves from the 63,000-acre boundary four different tracts, which had been previously conveyed to other persons, aggregating 14,000 acres. Newberry pleaded the general issue of not guilty and the statute of limitations. A jury having found for the defendant, the court overruled a motion of Buck for a new trial based on the claim that the finding was contrary to the evidence, and gave judgment for the defendant, and Buck brought the case here.
The case involves only questions of fact, under a large amount of oral evidence. Is the place where the trees were cut within the Morris grant? Is that place within or without the four tracts excepted in the deed from Trimble to Buck? Did the defendant cut the timber? Was the cutting within five years before the suit? These are the questions. No actual possession being shown, it is admitted that, to recover, Buck had to show title to the ground on which the timber was cut and, to do this, he had to show that the Morris grant covered it. This was a jury question. It depended on oral evidence of surveys, corner trees, and other corners, water courses, ridges, and other circumstances. The evidence to locate the survey, and especially as to a certain line on which the controversy hinged, was not clear, but easily admitted of two opinions. We cannot overrule the jury and the circuit court under this head.
There was no adequate evidence to show that the timber cut was not upon the land excepted in the deed from Trimble to Buck.
The burden was on Buck to show that the cutting was on his land, and, as thousands of acres within the bounds of his deed were never conveyed to him, he must show that the timber was not on those excepted lands. Stockton v. Morris, 39 W.Va. 432, 19 S.E. 531. The cases given on the two hearings of that case will sustain this position.
As to limitation: The evidence shows that...
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