City Of Roanoke v. Blair

• Decision Date: 12 September 1907
• Citation: 60 S.E. 75,107 Va. 639
• Parties: CITY OF ROANOKE et al. v. BLAIR.
• Court: Virginia Supreme Court

60 S.E. 75

107 Va. 639

CITY OF ROANOKE et al.

v.BLAIR.

Supreme Court of Appeals of Virginia.

Sept. 12, 1907.

On Rehearing, Jan. 16, 1908.

1. Evidence—Parol or Extrinsic Evidence Affecting Writings.

A written instrument, as a general rule, must be construed by the terms used therein, if plain and intelligible, and extrinsic evidence is not admissible for the purpose of adding to, detracting from, or in any way varying the plain meaning of the instrument itself.

2. Same—Construction or Application of Language of Written Instruments.

In construing a written instrument, extrinsic evidence may as a rule only be admitted for the purpose of explaining a latent ambiguity or of applying ambiguous words to their proper subject-matter.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2066-2101.]

3. Contracts — Construction — Technical Words.

Words of a definite legal significance, or which have a well-defined primary meaning, are to be understood as used in such sense, unless there appear in the writing a manifest intention of using them in a different sense.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 732-737.]

4. Boundaries—Call of Deed.

The term "east" in the call, "thence east to the lands of" a person named, used in defining the limits of a city (Act Feb. 3, 1882; Acts 1881-82, p. 52, c. 57), has a well-established legal meaning, and means due east, and is to be so understood; other words not being used qualifying that meaning.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 2, 47.

For other definitions, see Words and Phrases, vol. 3, pp. 2312, 2313.]

5. Same.

Even if the term "east, " in the call "thence east to the lands of" a person named, used in defining the limits of a city (Act Feb. 3, 1882; Acts 1881-82, p. 52, c. 57), meant "easterly, " there is nothing in the call authorizing the establishment of a curved or crooked line; since where a call is from one point to another, unless a different rule is described, the line is presumed to be a straight line.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 2, 47-49.

For other definitions, see Words and Phrases, vol. 3, pp. 2312, 2313.]

On Rehearing.

6. Appeal—Review—Scope.

Code 1887, § 3469 [Va. Code 1904, p. 1855], provides that on every appeal a summons shall be issued against the parties interested, other than petitioners, that they may be heard; section 3485 [Va. Code 1904, p. 1865] that the appellate court shall enter such judgment as the court whose error is sought to be corrected ought to have entered. Rule 8. formerly rule 9 (106 Va. vii, 57 S. E. xv), provides that on appeal, if error is perceived against any appellee or defendant, the court will consider the whole record, and reverse in the same manner as they would do were the appellee or defendant to bring the case before them. Held, in a suit to subject lots to the payment of a judgment, that where defendants appealing, and not appealing, stood on the same ground, and their rights were involved in the same question and equally affected by the decree, the Supreme Court of Appeals would settle the rights of the parties not appealing, as well as those appealing.

[Ed. Note.—For cases in point, see Cent Dig. vol. 3, Appeal and Error, § 3294.]

Appeal from Corporation Court of Roanoke.

Suit by Gertrude Blair against the city of Roanoke and others. Decree for plaintiff, and certain defendants appeal. Amended and affirmed.

Robertson, Hall & Woods, for appellants.

Robert E. Scott, for appellee.

BUCHANAN, J. The appellee instituted this suit to subject certain lots to the payment of a judgment which she alleged was a lien thereon.

It is conceded that if the lots were embraced within the corporate limits of the city of Roanoke, as defined by an act approved February 3, 1882 (Acts 1881-82, p. 52, c. 57), they are not subject to the lien of the appellee's judgment. The first question, therefore, to be considered Is whether or not the lots were within the city limits as defined by that act.

The boundary line of the city nearest the lots in question is described as follows in the act: "Thence with said Rorer and John M. Shaver's line north to the Norfolk and Western Railroad; thence east to the lands of Q. M. Word; and thence to the line of H. S. Trout, P. B. Moorman and E. H. Engle."

There is no dispute as to the point called for on the line of the Norfolk & Western Railroad, nor as to the point called for in the line of Trout, Moorman, and Engle; but the controversy between the parties is as to the proper location of the line between those points. These lines were never surveyed, so far as the record shows, until after the institution of this suit. The appellee insists that under a proper construction of the act, in the light of the contemporaneous construction placed upon it by certain officials of the city and of the county of Roanoke, and of the understanding of persons owning lands adjoining or near the line in controversy, the corporate line ran from the admitted point on the Norfolk & Western Railroad along the line of the railroad to a point where the lands of Word and Trout corner, and from that corner to the admitted point where the lines of Trout, Moorman, and Engle corner; and the corporation court so held.

The contention of the appellants is that there is no ambiguity in the language of the act defining the boundary of the city between the admitted corner on the Norfolk & Western Railroad and the admitted corner of Trout, Moorman, and Engle, and no difficulty in applying that language to its subject-matter, and that the line runs a due east course from the railroad corner to Word's line, and from the point where it strikes his line to Trout, Moorman, and Engle's corner.

It is well settled as a general rule that a written instrument must be construed by the terms used therein, if plain and intelligible; that extrinsic evidence is not admissible for the purpose of adding to, detracting from, or in any way varying the plain meaning of the instrument Itself; that in construing a writing extrinsic evidence may, as a rule, only be admitted for the purpose of explaining a latent ambiguity, or of applying ambiguous words to their proper subject-matter; and that words of a definite legal significance, or which have a well-defined primary meaning, are to be understood as used in such sense, unless there appear in the writing a manifest intention of using them in a different sense. Findley's Ex'rs v. Findley, 11 Grat. 434, 437, 438; Price's Ex'r v. Harrison's Ex'r, 31 Grat. 114, 118; Bank v. McVeigh, 32 Grat. 530, 541; Knick v. Knick, 75 Va. 12, 19-20; Nye v. Lovitt, 92 Va. 710, 24 S. E. 345, and cases cited; Sherwood v. A. & D. Ry. Co., 94 Va. 291, 301, 26 S. E. 943; Grubb v. Burford, 98 Va. 553, 557, 37 S. E. 4; Watts v. Newberry, 107 Va.—, 57 S. E. 657; Cooley's Const. Lim. pp. 91-94.

Let us apply these rules of construction to the language of the calls of the disputed line. The first call in that line is: "Thence east to the lands of Q. M. Word." The word or term "east" has a well-established legal meaning, and means due east, unless other words are used qualifying that meaning. Devlin on Deeds, § 1035; Dogan v. Seekright, 4 Hen. & M. 131; 5 Cyc. 875. There is nothing in the call to indicate that it was not intended to have its usual meaning; nor does the use of that word in other parts of the description of the boundary line of the city show satisfactorily that it should have a different meaning.

But if "east, " as used in the act, meant "eastwardly, " as insisted by the appellee, there was nothing in the call or in the act which furnished any authority for establishing a curved or crooked line as was done; for, where a call is from one point or monument to another, unless a different line is described in the instrument, the line is presumed to be a straight line. See 5 Cyc. 876, 878; Smith v. Davis, 4 Grat. 50; Marlow v. Bell's Lessee, 13 Grat. 531; Tucker v. Satterthwaite, 123 N. C. 511, 31 S. E. 722.

The counsel of appellee admit that a strict construction of the act would seem to demand that the line wherever established should be a straight line, and insist that it will be straight if run from the railroad corner to Word's and Trout's corner; but to so establish the line would not only violate the terms of the call, but ignore the contemporaneous construction relied on to justify the court in departing from the language of the call. The line as established by the court in no respect conforms to the call. It is not a straight line running east or eastwardly, but is a curved or irregular line, running with the lands of the Norfolk & Western Railway Company. By running a straight line due east from the railroad corner to Word's line, all the requirements of the call are satisfied.

But it is insisted by the appellee that the same strictness is not observed in construingacts of the General Assembly in forming counties and municipalities as in construing grants and contracts between private individuals. The case of Hamilton v. McNeil, 13 Grat. 389, is cited and relied on to sustain this contention.

The controversy in that case involved the true location of the boundary line between the counties of Pocahontas and Pendleton. It was doubtful from the language of the act defining the boundary line between the counties whether the call for beginning "on the top of the Alleghany Mountain, the northwest side of the line of the county of Pendleton, " would not require that the beginning should be at some point on the main Alleghany Mountains, as contended by one party, or would be satisfied by beginning at a point on a mountain lying west of the main Alleghany, as contended by the other party. There being this doubt, the court adopted that construction which was in accord with the general policy of the...