Gauley Coal Land Co. v. O'Dell

• Citation: 144 W.Va. 730,110 S.E.2d 833
• Decision Date: 03 November 1959
• Docket Number: No. 10995,10995
• Court: West Virginia Supreme Court
• Parties: GAULEY COAL LAND COMPANY, a Corporation, et al. v. W. A. O'DELL et al.

Page 833

110 S.E.2d 833

144 W.Va. 730

GAULEY COAL LAND COMPANY, a Corporation, et al. v. W. A. O'DELL et al.

No. 10995.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 1959.

Decided Nov. 3, 1959.

Syllabus by the Court

1. 'One or more monuments of a tract of land having been ascertained, the courses and distances are entitled to controlling effect in the location of others as to the identity of which the evidence is slight, circumstantial and conflicting.' Pt. 2, syllabus, Lewis v. Yates, 72 W.Va. 841 .

2. 'Equity will not entertain a suit to remove cloud upon title to real estate, if the sole matter in dispute is the location of boundary lines, or to enjoin an alleged trespass on the disputed land, in the absence of an averment that an action at law is pending or is about to be brought to determine the title.' Syllabus, McDonald v. Boggs, 97 W.Va. 201 .

3. 'Where, a trial court acting as a court of equity, has entered a decree in a case in which the court has no equity jurisdiction, this court will reverse the decree and remand the case to the trial court for transfer to the law side of the trial court, with an opportunity for amendment of plaintiff's pleadings, as plaintiff may be advised and as may be proper.' Pt. 3, syllabus, Kertesz v. Falgiano, 140 W.Va. 469 .

R. J. Thrift, Jr., Fayetteville, Summers H. Sharp, Marlinton, for appellants.

Charles E. Mahan, J. H. White, Fayetteville, John B. Breckinridge, Summersville, for appellees.

BERRY, Judge.

This is a suit in equity instituted in the Circuit Court of Nicholas County, West Virginia, by the appellees, plaintiffs below, Gauley Coal Land Company, a corporation, New Gauley Coal Corporation, a corporation, and Imperial Smokeless Coal Company, a corporation, against the appellants, defendants below, W. A. O'Dell, Anna Jane O'Dell, Loren W. O'Dell, Dayton O'Dell, Ada O'Dell Poling, J. W. Martin, and Harry Smith. The parties will be referred to hereinafter as plaintiffs and defendants, as designated in the trial court.

The plaintiffs, Gauley Coal Land Company and New Gauley Coal Corporation own in fee simple undivided interests of 78% and 22% respectively, a tract of land consisting of approximately 243 acres known as the 'J. O. McClung Homeplace', which includes a 5 acre tract on the southeast side of same, known as the 'J. O. McClung Homeplace Extension', and the plaintiff, Imperial Smokeless Coal Company, is lessee of the land in question.

The plaintiffs alleged in their bill of complaint that defendants owned land adjoining the plaintiffs, the exact location unknown, but that defendants are guilty of trespassing on a part of the 243 acre tract to which they had a clear and legal title and cut timber on same; that defendants are not in possession of same; and the bill prays for an injunction, that the defendants be restrained from trespassing on the land of plaintiffs, from cutting timber thereon, that the title of plaintiffs be quieted and that cloud on the title be removed therefrom and for an accounting. The defendants demurred to plaintiffs' bill of complaint and amended bill of complaint, which amended bill of complaint had added Anna Jane O'Dell as a party defendant due to the fact that she was one of the grantees to the property in question, for the reason that the bill and amended bill show that the matter in controversy involved a disputed title to real estate and that equity is without jurisdiction to determine same, which demurrer was overruled by the trial court and a temporary injunction was granted. Thereupon, the defendants, W. A. O'Dell and Anna Jane O'Dell, filed an answer stating that Loren W. O'Dell, Dayton O'Dell and Ada O'Dell Poling have no interest in the matter in controversy; that defendants W. A. O'Dell and Anna Jane O'Dell are the owners of the residue of the 250 acre tract of land consisting of about 150 acres; that they have had actual possession of said land for many years under their deeds; that they employed J. W. Martin and Harry Smith to go upon said land belonging to the defendants and cut timber thereon. Defendants, other than W. A. O'Dell and Anna Jane O'Dell, took no part in the case, and the word 'defendants' used herein refers primarily to those two. The defendants also moved the court to direct an issue out of chancery for a trial by a jury because the testimony of plaintiffs and the testimony of the defendants would raise a serious conflict in evidence introduced as to the boundary line between their property. This motion was overruled by the trial court. The trial chancellor proceeded to hear the evidence in the case at the completion of which he found in favor of the plaintiffs and granted to them the relief prayed for in their said bill of complaint and amended bill of complaint, fixing the boundary of plaintiffs' 243 acre tract by metes and bounds, adopting and making a part of the decree a map which was introduced into evidence by one of the plaintiffs' witnesses, making the temporary injunction permanent, dismissing the defendants, Loren W. O'Dell, Dayton O'Dell and Ada O'Dell Poling, but no accounting was decreed. The description of the 243 acre tract in question, contained in the decree, is apparently in conflict in some particulars with the original map which was made a part of the decree.

The ground of equity jurisdiction relied upon by the plaintiffs in this case is that they have a good and perfect title to the land in question and that the defendants do not have title or color of same; that plaintiffs are in possession and have been in possession of said land for many years and defendants are not in possession and have not been in possession of the land in question. The demurrer to the bill and amended bill was properly overruled by the trial court because the bill alleged that the plaintiffs had a clear legal title and that the defendants were not in possession and did not have a legal title, and the demurrer admitted all facts well pleaded. Ephraim Creek Coal & Coke Co. v. Bragg, 75 W.Va. 70, 83 S.E. 190. However, the question of title and boundary line between plaintiffs' and defendants' land was clearly raised in the answer filed by the defendants and such defense may be properly raised by an answer and it will defeat the jurisdiction of a court of equity as to the title at whatever stage of the suit it appears. Columbia Gas & Electric Co. v. Moore, 81 W.Va. 164, 93 S.E. 1051.

The record in this case is lengthy, consisting of about 1,000 pages, and the evidence is conflicting, unclear and inconsistent in some instances. However, it is quite clear from the record that the plaintiffs claim one line as a boundary line and the defendants claim another between certain properties which were conveyed many years ago. The difference between the two lines is a distance of some 750 feet. If the plaintiffs' contention is correct, the defendants were trespassing on plaintiffs' land by cutting timber thereon, but if the defendants' contentions are correct they were not guilty of trespassing because they were cutting timber on their own property. There are two parallel lines shown on a map introduced by the plaintiffs marked Exhibit 'A' about which there is no controversy between the parties to this suit. These lines, one known as the Price Line, located on the northwest side of the map and the other known as the Moore-Welch Line, which is located on the southeast side of the map, are over 7,000 feet apart. The entire acreage between these lines and other connecting lines indicated on the map consists of about 2,000 acres.

The first deed having a bearing on the present controversy was made in 1859 from S. McD. Moore to Reubin Siers. This tract of land was surveyed by the plaintiffs' engineers, and the beginning point on the Price Line shown as point 3 on plaintiffs' Exhibit 'A' calls for two hickories on Colt Ridge. Point 3 is not in controversy and is a fixed point agreed upon by both plaintiffs and defendants in this suit. However, the plaintiffs' engineers, in surveying this tract, overran in a southwest direction the distance called for by about 800 feet. They overran the next line which runs southeast by about 700 feet, the reason being given that it was an attempt to locate monuments. It is not clear whether or not they located the monuments called for in the deed with any degree of certainty in this survey. However, it is clear that if this survey had been run southwest for the distance called for in the deed, 291 poles, and then run southeast for the distance called for in the deed, 275 poles, it would have crossed Hominy Creek, as called for in the deed, at about 80 poles from the end of the 275 poles called for where a monument of a white lynn and dogwood was located. Apparently the white lynn and dogwood were not located. These trees may have been destroyed during the period of about 100 years, but Hominy Creek would not have been destroyed during this time. If Hominy Creek is accurately located on the map, the crossing of Hominy Creek, as called for in this deed, could not have been from the northwest corner because the Price Line is fixed and it would be necessary to move the Price Line southeast over 2,000 feet in order to cross the creek at a point 80 poles from the Price Line, and the crossing line would then extend south of the bottom line of the survey about 2,000 feet beyond the end of the southeast line, contended for by plaintiffs, and terminate in other property a little over 500 feet northwest of the agreed Moore-Welch Line. The next call in this deed is a parallel line to the Price Line, with the first call running northeast 43 degrees for 291 poles to a stake near a maple and chestnut oak. The plaintiffs' survey shows the maple and chestnut oak some 750 feet southeast of where the parallel line would terminate under defendants' view, and in order to reach there would require a call for about north 52 degrees east. If this line came to the maple and...