Douglas Land Co v. T. W. Thayer Co

• Decision Date: 12 September 1907
• Citation: 58 S.E. 1101,107 Va. 292
• Parties: DOUGLAS LAND CO. v. T. W. THAYER CO.
• Court: Virginia Supreme Court

58 S.E. 1101

(107 Va. 292)

DOUGLAS LAND CO.

v.T. W. THAYER CO.

Supreme Court of Appeals of Virginia.

Sept. 12, 1907.

1. Boundaries — Evidence — Documentary Evidence.

Where, in partition, several tracts were allotted to the parties, and the deeds to them called for the lines of designated patents, the patents were relevant evidence on the issue of the boundary line between the tracts.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Boundaries, § 160.1

2. Same—Acts or Parties —Evidence —Admissibility.

Where, in a suit involving the boundary line between plaintiff's and defendant's lands, it appeared that an agent of defendant, while endeavoring to determine the true line, adopted a corner and marked timber to identify it, proof that a third person, who owned land adjoining the land of defendant, pointed out to the agent the corner, was admissible in support of plaintiff's claim that the line from the corner was the correct line.

3. Same.

In a suit involving the location of a boundary line, the admission in evidence that a witness received from plaintiff's counsel, in the presence of the counsel and general manager of defendant, instructions with respect to the running of a line from designated points, was not erroneous, where the counsel and manager of defendant likewise directed the running of the line.

4. Same—Documentary Evidence.

In a suit involving the location of a boundary line, a deed of a part of the land allotted to plaintiff's predecessor in title, in a suit for partition, and which called for the dividing line between that allotment and defendant's land, was relevant to show that the vendors in the deed claimed the line as called for in the deed.

[Ed. Note.—For eases in point, see Cent, Dig. vol. 8, Boundaries, § 160.]

5. Same--Acts op Parties.

In a suit involving the location of a boundary line, the testimony of a witness that he had heard an agent of defendant say that it had twice run the boundary line was relevant to show the acts done by defendant in its efforts to locate its boundary lines.

6. Writ of Error — Erroneous Admission of Evidence—Right to Complain.

A party eliciting evidence to establish a fact cannot avail himself of an objection to evidence of the adverse party establishing the same fact.

【TEd. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3597.]

7. Boundaries—Evidence—Admissibility.

Where, in a suit involving the location of a boundary line, there was evidence to prove that the lines and corners of an entry were identical with the calls of a patent, the entry was admissible, especially where some of the marked trees in the entry were called for in the deeds under which the parties claimed.

8. Writ of Error—Exclusion of Evidence —Review.

Where the record is silent as to what answers were expected to be elicited from questions propounded, the sustaining of objections to the questions was not reviewable.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 30, Appeal and Error, §§ 2905-2909.]

9. Witnesses — Competency—Transactions with Deceased Persons.

One having no interest in a suit involving the location of a boundary line, and connected with it only as surveyor and witness, may testify with reference to the direction given him by the general manager of defendant as to how a line should be run, though the general manager is dead.

10. Boundaries —Evidence —Conduct of Parties—Admissibility.

In a suit involving the location of a boundary line, the testimony of a surveyor with reference to the direction given him by the general manager of one of the parties as to the running of a line is admissible as against the objection that the manager had no authority to make parol disclaimer of the title of his employer.

11. Same—General Reputation — Admissibility.

Parol evidence of the general reputation and tradition with respect to the corner of an ancient patent and the old line between Virginia and Tennessee is admissible.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Boundaries, § 155.]

12. Writ of Error—Admission of Evidence —Exceptions—Review.

Where, in a suit involving the location of a boundary line, evidence of the location of a corner of an ancient patent had been admitted without objection, an exception to evidence of the general reputation and tradition with respect to the corner was not available.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4161.]

13. Evidence—Opinion Evidence—Admissibility.

The opinion of a witness that a corner of an ancient patent was on the old state line is incompetent.

14. Writ of Error—Harmless Error—Erroneous Admission of Evidence.

Where, in a suit involving the location of a boundary line, evidence that third persons had made statements to the. agent of defendant which had been acted on by him in attempting to locate the boundaries was admitted, evidencen that the third persons had made similar statements to others was not prejudicial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4161.]

15. Evidence—Self-Serving Declarations. In a suit involving the location of a boundary line, the testimony of a witness that a particular line was plainly marked is admissible as against the objection that the evidence is self-serving, on the ground that the line had been recently marked.

16. Boundaries—Evidence—Admissibility. Where the call in a deed is for a line over

"Cat Face" to a tree, evidence of the location of the natural monument referred to by the designation "Cat Face, " together with the traditional derivation of the name, was admissible to identify and locate the call.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 155, 178.]

17. Writ of Error—Admission of Evidence —Exceptions—Review.

Where the exception to the refusal of the court to strike out evidence does not point out the specific evidence objected to, the exception cannot be regarded.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1620.]

18. Trial — Instructions — Ignoring Evidence.

Where, in a suit involving the location of the boundary line between tracts as partitioned among the heirs of a decedent, the controlling inquiry was as to the location of the line fixed by the commissioners and confirmed by the court, an instruction ignoring the theory that the parties had acquiesced in the line for which one of the parties contended, and yielding precedence to the supposed intention of the commissioners, was erroneous.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 613.]

19. Same—Undue Prominence to Particular Matters.

An instruction must not call special attention to a part only of the evidence and the fact which it tends to prove, and disregard other evidence relative to the issue.

[Ed. Note.—For cases in point, see Cent, Die. vol. 46, Trial, § 577.]

Error to Circuit Court, Washington County.

Action by the T. W. Thayer Company against the Douglas Land Company. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.

Daniel Trigg, Fulkerson, Page & Hurt, and J. C. Padgett, for plaintiff in error.

White & Penn, for defendant in error.

WHITTLE, J. This case involves the location of the true dividing line between the lands of Mrs. Monroe and George Douglas, Jr. (predecessors in title respectively of the defendant in error, the T. W. Thayer Company, plaintiff in the lower court, and the defendant, the Douglas Land Company, the plaintiff in error), both of whom derived title from a common source, their father, George Douglas, as established by the commissioners and confirmed by tbe circuit court of Washington county in the suit to partition the lands of George Douglas, deceased, amongst his heirs.

The plaintiff brought an action of trespasson the case against the defendant and its lessee, the Laurel River Lumber Company, to recover damages for the alleged cutting and removing of timber from its premises, and to an adverse judgment against the defendants this writ of error was allowed.

The lands which were the subject of partition consisted of three tracts—one containing 62, 800 acres, another 10, 712 acres, and the third 13, 655 acres. The first two tracts, which embrace the land in controversy, were patented to James Heron December 14, 1795. The three tracts were divided into four parcels. The eastern portion of the largest tract was allotted to William Douglas, the central portion to Mrs. Cruger, and the western to Mrs. Monroe, while the two smaller tracts were allotted to George Douglas, Jr. The partition was confirmed in 1846, and carried into deeds in severalty by a special commissioner appointed by the court for that purpose. The deed to Mrs. Monroe calls for the northwest and southwest corners of the 62,-800-acre tract, and also for the eastern lines of two older patents, Hunt's and Furman's. The calls in the deed to George Douglas, Jr., are for the northeast corner of the Hunt patent and Mrs. Monroe's western division line. The disputed lines are from "M" to "C" (contended for by the plaintiff), and from "O" to "5, " and thence to the end of the dotted line (claimed by the defendants), as shown on the "Buchanan Map, " a copy of which is filed with this opinion.

The action of the court in admitting in evidence the Hunt and Furman patents constitutes the first ground of exception.

As remarked, the lines of these patents are called for in the partition deeds, and they are, therefore, relevant evidence to sustain the theory of the plaintiff as to the true line between the claimants. The land included in the Furman patent adjoins the Hunt patent on the south, and the eastern boundary lines of the two patents are coincident, and according to the claim of the plaintiff constitute in part the western line of the 62, 800-acre patent The patents and deeds in the line of the Douglas title refer to the Hunt land and Furman land interchangeably as the nunt and Furman land, and evidence was admissible to prove that both tracts...