Camden v. West Branch Lumber Co.
| Decision Date | 27 February 1906 |
| Parties | CAMDEN v. WEST BRANCH LUMBER CO. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
The actual possession of the owner of a tract of land, lying adjacent to another tract of uncleared land, the title to which is vested in another person by a grant from the state is not extended over a portion of such other tract by the acquisition of a junior patent, covering such portion and purporting to vest title thereto in the owner of such first mentioned, tract, however long such possession may continue. To work an ouster of the elder patentee and hold adversely to him, the junior patentee must take actual possession of some part of the land included in the junior patent and within the boundaries of the senior patent.
For evidential purposes in an action of unlawful entry and detainer between the owner, or a claimant under color of title, of a large tract of land and another person possession of a small portion of such tract by a tenant of such owner or claimant, under a lease restricting the right of occupancy and use of the land by the tenant to such small portion, is, in legal effect, possession by the owner or claimant of so much of the entire tract as is not in the actual, hostile possession of some other person.
In an action of unlawful entry and detainer, it is not reversible error to refuse to allow the introduction, by the defendant of a deed or contract showing he does not own, and is not in possession of, a portion of the land sued for.
Error to Circuit Court, Braxton County.
Action by J. N. Camden against the West Branch Lumber Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.
Mollohan McClintic & Mathews, for plaintiff in error.
W. E. Haymond, and A. W. Corley, for defendant in error.
The West Branch Lumber Company, a corporation, complains of a judgment rendered against it in an action of unlawful entry and detainer, instituted by J. N. Camden, in the circuit court of Braxton county, by which judgment, possession of a tract of land containing 200 acres, claimed by said corporation, was given to said Camden. The errors assigned relate to instructions given and evidence excluded.
The plaintiff below, defendant in error, derived his title from Andrew Perrine, who obtained a grant for said 200 acres of land from the commonwealth of Virginia on the 2d day of April, 1855. Perrine then owned a tract of 75 acres granted to Mifflin Hines in 1819, and conveyed to his ancestor, Lewis Perrine, by deed dated September 1, 1837, a boundary line of which touched at one point said tract of 200 acres. Camden introduced the patent for the 200 acres issued to Andrew Perrine; a deed executed by A. S. Knight, Virginia Knight, W. R. Perrine and others, heirs of Andrew Perrine, dated January 17, 1887, conveying to J. S. Hyer and A. C. Dyer said tract of 200 acres; a deed from J. S. Hyer and wife and A. C. Dyer and wife, dated July 18, 1890, conveying said 200 acres to J. N. Camden; a deed from Lewis Perrine and wife, dated September 1, 1837, conveying said 75-acre tract to Andrew Perrine; a deed from George McElwain and Andrew Perrine, dated January 10, 1843, conveying to Andrew Perrine 61 acres of land, a part of a tract, containing 116 acres. The defendant below derived its claim of title as follows: A grant of a tract of 5,000 acres made by the commonwealth of Virginia on the 13th day of April, 1786, to Samuel Young; sale and conveyance of said tract, as delinquent and forfeited land, under proceedings had in the circuit court of Braxton county in 1841, by the commissioner of delinquent and forfeited lands, to Gideon D. Camden, by deed bearing date April 13, 1842; a deed from said Camden to Francis Albright, dated April 15, 1842; a deed from Norman D. Squires, recorder of Braxton county, William L. J. Corley, and Morgan H. Morrison to Henry Brockerhoff and others, dated September 9, 1870; a deed from William L. J. Corley, clerk of the county court of Braxton county, to A. N. Ervin, dated January 3, 1879; a deed from A. N. Ervin and wife to Margaret C. Brockerhoff, dated September 6, 1879; a deed from Andrew Brockerhoff and others to the West Branch Lumber Company, dated December 20, 1889. All of the above mentioned deeds refer to the land by them conveyed as the land patented by Samuel Young and evidence was introduced on the trial tending to prove that the 200-acre tract of land in controversy lies within the 5,000-acre tract granted to Samuel Young in 1786, and was not excepted therefrom.
Plaintiff below proved that Andrew Perrine had resided for many years on said 75-acre tract of land at the time he obtained the patent for said 200-acre tract; but did not then take and hold actual possession of the latter tract. He never at any time resided on it, but kept the taxes on it paid and cleared a small space on one corner of it. A clearing made on the 75-acre tract extended slightly over on to said 200-acre tract. When this was done does not appear, but it must have been prior to 1890, as it was done by Andrew Perrine, who died before that time. Nothing in the evidence indicates whether this occupancy contained for any length of time. Soon after Camden purchased the land he sold the timber on a part of it to B. H. Camden, and H. P. Camden, who, about 1892 or 1893, took off of it the timber purchased by them, and, while these timbering operations were in progress, some houses were built on the land for use in connection with them. Near that date, the West Virginia & Pittsburg Railroad was built through said tract, and a number of persons, employed in the construction of the road, settled at various points on the land along its line. After the completion of the timber operations and the construction of the railroad, some of the people, who had come there as employés, remained upon the land; and whose tenants they were, and who had possession of the houses and small cleared lots after these operations ceased, were controverted matters in the trial. The only evidence tending to show any occupation of the land prior to the cutting of the timber and the building of the railroad is that of Jacob A. Hosey, who says he built a house on it for Hudson Knight, a son-in-law of Andrew Perrine, before the war, but never completed it and it was never occupied. This man built some of the houses for the railroad company or its contractors. Elizabeth Mowery moved in the old house built by Hosey before the war, when B. H. and H. P. Camden were taking the timber from the land, and she says B. H. Camden told her she could stay there as long as she wanted to, and furnish lumber to put a floor in the house. She further says she put out fruit trees which still remain on the place; that she kept the property for four years, and that A. W. Corley, agent for J. N. Camden, told her to come there and stay as long as she wanted to. At another place about a quarter of a mile distant from the house which Mrs. Mowery occupied, a Mrs. Treanno was residing in a house on the land in controversy at the time this action was commenced, claiming to be the tenant of J. N. Camden. She also went on the property while the timber operations were in progress, with the consent of B. H. Camden, as an employé of the Camdens, or one of their contractors. She then occupied a small house near the one occupied by the Camden laborers and contractors, and, after they left, moved into the house which they vacated. A. W. Corley testifies that she was there in July, 1892, with his consent, as tenant of Camden. Her name was then Mrs. Hicks and some time afterwards Mose Treanno married her, and moved into the house with her. Around this house there was a small piece of cleared land under fence, containing five or six acres. Mrs. Treanno exhibited in connection with her testimony some letters from J. N. Camden to her showing that they recognized each other as landlord and tenant, respectively. The letter of earliest date was written in 1901, but she claims to have had some older that had been destroyed. A. W. Corley testified that he, as agent of J. N. Camden, gave permission to one Chapman, who had a contract for grading some part of the railroad, to erect shanties and such other houses on the land as might be needed for the accommodation of his employés in that work.
The defendant introduced in evidence a number of leases executed by Brockerhoff and others, claiming the title, held by the defendant company. These are as follows: One executed by M C. Brockerhoff to Moses Treanno, dated the ______ day of June, 1895; one executed by said Brockerhoff to Jesse Hosey, bearing date June 1, 1895; one executed by said Brockerhoff to Elben and Clarke Cogar, bearing date December 25, 1897; another executed by the West Branch Lumber Company to J. H. Spencer, dated May 9, 1900; another by the West Branch Lumber Company to John Paulhamus & Son, dated January 1, 1900; another by Paulhamus & Son to F. W. Carpenter, dated February 15, 1901. Jesse Hosey testified that he had moved into a house, belonging to Chapman, the railroad contractor, in 1893; that neither Mrs. Treanno nor Andrew Mowery was living there at that time; and that the only person occupying any part of the 200 acre tract at that time was Carlisle Cogar, who was running a camp for men employed by McIntire, who was engaged in the Camden timber operations. Hosey continued to reside there, and, on the first day of June, 1895, entered into the written contract of lease with M. C. Brockerhoff, which the defendant put in evidence as above stated. He further stated that, before he moved on to the 200 acre tract, he had resided on another part of the 5000-acre Albright survey, which included said 200-acre tract, under a written contract...
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