Conner v. Jarrett, 8736.

CourtSupreme Court of West Virginia
Citation200 S.E. 39
Decision Date22 November 1938
Docket NumberNo. 8736.,8736.
PartiesCONNER. v. JARRETT et al.

200 S.E. 39

CONNER.
v.
JARRETT et al.

No. 8736.

Supreme Court of Appeals of West Virginia.

Nov. 22, 1938.


Concurring Opinion Dec. 19, 1938.

[200 S.E. 40]
Syllabus by the Court.

1. In an action at law a demurrer to the evidence of the defendant may be interposed by the plaintiff when he has made out a prima facie case by his own evidence, entitling him to recover; with this limitation, either party to an action at law may demur to the evidence of his adversary and require joinder therein.

2. Upon a demurrer to the evidence all the evidence introduced at the trial should be incorporated in the demurrer, and will be treated as being so incorporated where, upon such demurrer by the plaintiff, it appears that the court, in passing upon the demurrer, considered all the evidence for the defendant and all the evidence for the plaintiff not in conflict with the competent evidence for the defendant.

3. Upon a demurrer to the evidence, all the evidence introduced at the trial should be considered by the court, and all reasonable inferences therefrom considered in favor of the demurree, and judgment rendered in his favor, unless the evidence of the demurrant in conflict with that of the demurree plainly and decidedly preponderates in favor of the demurrant on some decisive point, in which case the demurrer should be sustained and judgment rendered for the demurrant.

4. Courses and distances called for in a deed must, in cases of conflict, yield to marked lines and monuments called for therein.

5. "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." Matheny v.

Allen, 63 W.Va. 443, 60 S.E. 407, 129 Am. StRep. 984.

6. Where a line is called to run from a given point to a stake on the bank of a non-navigable stream, and from that point three lines are called to run up the stream by courses and distances which, surveyed on the ground from said stake, closely correspond to the course of the stream, the latter lines will, in the absence of a clear showing of intent to the contrary, be held to follow the stream ad medium filum aquae.

Error to Circuit Court, Kanawha County.

Action in ejectment by Howard G. Conner against Earl Jarrett and Dorothy K. Jarrett. To review a judgment in favor of the plaintiff, the defendants bring error.

Judgment affirmed.

Taylor & Taylor, of Charleston, for plaintiffs in error.

H. L. Snyder and Mohler, Peters & Snyder, all of Charleston, for defendant in error.

FOX, Judge.

Earl Jarrett and Dorothy K. Jarrett prosecute this writ of error to a judgment of the circuit court of Kanawha County, entered on the 13th day of September, 1937, in an action of ejectment in which Howard G. Conner was plaintiff and the Jarretts were defendants. The judgment complained of was rendered on a demurrer to the evidence interposed by the plaintiff below.

The controversy in general involves the ownership of a small lot of land on Mink Shoal Branch, a tributary of Elk River, and particularly the location of three lines representing the boundary between the lands of the litigants, and must be determined, as we view the case, from three deeds which will be hereafter mentioned and discussed.

The lands of both the plaintiff and defendants below have a common source of title, within the meaning of the rule in ejectment actions, that where there is a common source of title, proof of title need not go beyond that common source. Winding Gulf Colliery Co. v. Campbell, 72 W.Va. 449, 78 S.E. 384; James Sons Co. v. Hutchinson, 73 W.Va. 488, 80 S.E. 768. The rule is based on the doctrine of estop-

[200 S.E. 41]

pel, and where it is established by proof that both parties to an action of. ejectment derive title from the same third person, such proof is prima facie sufficient to establish such common source without proof that such third person had title to the land conveyed by him. Laidley v. Land Co., 30 W.Va. 505, 4 S.E. 705; Low v. Settle, 32 W.Va. 600, 9 S.E. 922; Car-rell v. Mitchell, 37 W.Va. 130, 16 S.E. 453. The deed establishing common source is that of R. H. Early to Greenbury Melton, dated April 5, 1855, conveying a tract of 2913/4 acres of land. On April 16th, 1877, Melton conveyed to Felix Myer, out of this boundary, a tract of 8 acres and 20 perch, the first four calls of which deed are: "Beginning at a stake and corner to Original survey and with same N 50 E 12 poles to stake and pointers on bank of Mink Shoal Branch thence up same N 50 W 41 poles 14 links to sycamore thence N 35 W 10 poles to stake thence N 51 W 36 poles to stake corner M Hass * * *", and title to this land passed by mesne conveyances to the plaintiffs in error, defendants below. On February 6, 1883, Melton conveyed to James F. Rock, out of the 2913/4 acre tract, 59 acres of land, the first and last four calls of which are, as set out in the deed of conveyance, as follows: "Beginning at a stake in a wagon road at the foard of the said Mink Shoal Branch in a line of a survey of 8 acres of Felix Myers and running thence up the Road N. 273/4° E. 11 poles & 10 links to a stake in the Road * * * S. 12° E. 22 poles to a stake on the West bank of the said Mink Shoal Branch corner to the aforesaid 8 acres thence with three lines of same still down the branch S. 51° E. 371/2 poles to a stake S. 35 E. 10 poles to a sycamore on the east bank of the branch S. 50° E. 41 poles & 14 links to the beginning * * *." It will be observed that the last three calls of the Rock deed are identical with the second, third and fourth calls of the Felix Myer deed as to course, and vary only as to the distance in the call of N. 51 W., the Myer deed calling for 36 poles, and the Rock deed 371/2 poles, and in the Myer deed the sycamore called for at the end of the call N. 51 W. is not located at any particular place, whereas in the call of the Rock deed, it is located on the east bank of Mink Shoal Branch. However, no question is raised as to the two sets of calls not being identical, and none could be reasonably asserted. It is apparent, therefore, that the location of the disputed lines must be governed by the calls of the Felix Myer deed, it being senior to the Rock deed, and that deed expressly calling for the lines of the senior grant. Miller v. Holt, 47 W.Va. 7, 34 S.E. 956; Robinson v. Sheets, 63 W. Va. 394, 61 S.E. 347.

The plaintiff below, admitting that the calls of the Felix Myer deed for the 8 acres and 20 perch must govern in the location of the lines of his own land, says: first, that the first call of the Myer deed terminates at a natural monument, the bank of Mink Shoal Branch, and must control, and establishes the utmost limit to which the eastern lines of the Myer tract, can extend, and that the call running in an easterly direction would end when it reached the west bank of the branch, and firmly and irrevocably fixed the corner of the Myer tract at that point; second, that under recognized rules of surveying, and established principles of law, a line calling for the bank of a non-navigable stream will be extended to the center of the stream; and third, that the second, third and fourth-calls of the Myer deed must, notwithstanding the definite courses and distances used be construed as running with the stream ad medium filum aquae, and therefore the center of Mink Shoal Branch is the true line of his land. To combat these claims, the defendants below depend upon surveys of courses and distances called for in their deeds, upon testimony tending to show marked line or corner trees in the line claimed by them, and certain statements of their predecessors in title tending to support their contentions. There is some evidence as to possession coming from both sides of the case, but it tends to confuse rather than enlighten the court. It is not clear that there ever was continuous and uninterrupted possession for the statutory period, by either party, of any part of the land in dispute, and we think the trial court was correct in ignoring all evidence as to possession. The same may be said of the statement of the plaintiff, Conner, that he did not claim a small strip of land between what is called an old road and Mink Shoal Branch, which, under the order of the court, was awarded to him. This whole controversy was one involving the location of a boundary line and should be decided on that basis.

At the conclusion of all the testimony offered in the case, motions for a directed verdict were made by plaintiff and defendants, respectively, and overruled; the

[200 S.E. 42]

plaintiff then demurred to the evidence of the defendants, and over their objection, they were required to join in the demurrer. The court, according to its order, "having maturely considered all the evidence submitted to the jury, both that submitted on behalf of the defendants and as well so much of that submitted on behalf of the plaintiff as is not in conflict with the competent evidence submitted on behalf of the defendants, and also the law as applicable to the same", sustained the said demurrer and rendered judgment for the plaintiff on the conditional verdict of the jury in his favor for a fee simple estate in the tract of 59 acres of land described in his declaration, and $75 damages, the court fixing the median line of Mink Shoal Branch from the state highway culvert crossing said branch up to the Mike Haas line, as the division line between the lands of the litigants. Exception to this action of the court was taken at the time.

The errors assigned by the plaintiffs in error are: (1) Refusal to direct a verdict in their' favor; (2) the entertaining of plaintiff's demurrer to the evidence and requiring their joinder therein; and (3) the action of the court in sustaining the demurrer and rendering judgment for the plaintiff. The first and third assignments cover the same subject and will be considered together. We will first consider the second assignment.

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