Gwynn v. *(English

• Decision Date: 26 June 1889
• Citation: 32 W.Va. 487
• Parties: Gwynn v. Schwartz.*(English, Judge, absent.)
• Court: West Virginia Supreme Court

32 W.Va. 487

Gwynn

v. Schwartz.*(English, Judge, absent.)

Supreme Court of Appeals of West Virginia.

Submitted January 25, 1889.

Decided June 26, 1889.

1. New Trial Writ of Error.

When in any civil suit there is an order made granting a new trial, a writ of error will lie from such order, either before or after the new trial has been had, and without regard to the finding on such new trial, (p. 491.)

2. New Trial.

The verdict of a jury ought not to be interferred with, and a new trial awarded by the court, when the evidence is contradictory, if, when most favorably considered in support of the verdict, it does not still appear, that the verdict was plainly not warranted by the evidence, (p. 494.)

3. Boundaries Courses and Distances.

In the description of lands as to questions of boundaries the rule is settled in Virginia and West Virginia, that natural landmarks, marked lines and reputed boundaries will control mere courses and distances or mistaken descriptions in surveys and conveyances. (p. 496.)

4. Boundaries-Quantity of Land.

The statement of the quantity of land supposed to be conveyed, and inserted in deeds by way of description, must not only yield to natural landmarks and marked lines, but also to descriptions in deeds by courses and distances. (p. 497.)

5. Boundaries Courses and Distances.

Disputed boundaries between two adjoining lands may be settled by express oral agreement, executed immediately and accompanied by possession according thereto. (p. 500.)

6. Boundaries Evidence.

Long acquiescence by one adjoining proprietor in a boundary established by the other is evidence of such agreement so fixing the division-line between them. (p. 500.)

7. Boundaries Evidence.

Such acquiescence may be shown by the adjoining land-owners having actual possession and cultivating to such line; or, if the line ran through woods, by the proprietor, who established such division-line, with the knowledge of the adjoining land-proprietor always clearing up to this line and, with his like knowledge cutting timber and peeling bark up to this division, the other land-owner making no objection to such claim or such acts of ownership, though he was present when such acts were being done. (p. 502.)

8. Boundaries Evidence New Trial.

Such acquiescence, in this State for a period of over ten years will justify a jury in inferring, that such parol agreement establishing such division-line existed; and a verdict based on such inference ought not to be set aside as plainly contrary to the evidence, (p. 503.)

Statement of the case by Green, Judge:

This is an action of ejectment brought August, 1884, in the Circuit Court of Mason. The declaration was in proper form, and to it the defendant pleaded not guilty, on which issue was joined. There was no controversy in the court below, nor is there any in this Court about the pleadings. When the case was tried first, the jury on February 10, 1886, found: "We, the jury, find the defendant not guilty," and thereupon the plaintiff, Amos Gwynn, moved the court to set aside the verdict and award him a new trial, because the same was contrary to the law and the evidence, which motion the court sustained, on condition the plaintiff pay unto the defendant his costs expended in the trial of the cause at that term of the court; and the defendant took a bill of exceptions to this action of the court, in which all the evidence before the jury and all the proceedings had in the trial of the case are set out. No instructions were asked by either party. The whole controversy was as to the proper location of the division-line separating the farms of the plaintiff and the defendant.

The evidence shows, that one D. C. Sayre owned a tract of land of 7, 000 acres on Little Mill creek in Mason county. On August 8, 1856, he gave to his two grandchildren, Daniel W. Vanmetre and Miriam. McOullough, about 400 acres, as he supposed, ' dividing it into two nearly equal parts. He conveyed one of these to Daniel W. Vanmetre, and on the same day he conveyed the other part to Joshua McOullough. March 3, 1880, Daniel W. Vanmetre and wife conveyed the land so conveyed to him to the plaintiff, Amos Gwynn, by a deed, which was duly admitted to record. Joshua S. McOullough conveyed the land so conveyed to him to Henry J. Sine by a deed dated December 12, 1866, duly recorded; and Henry J. Sine and wife by deed duly recorded conveyed said land to the defendant, Levi Schwartz. The whole controversy in this case is in reference to the true division line between these two tracts of land.

On reading these two deeds one is struck with some peculiarities in them. Though they were both deeds of gift, yet on the face of the deeds they appear to be sales; for the consideration named in each of them is $300.00 cash, and both of them contain general warranties of title. In the next place, while each deed states, that the land conveyed is "about two hundred acres," yet it is perfectly obvious according to the metes and bounds, that the land conveyed to Joshua S. McOullough now owned by the defendant, Schwartz, contained ten or twelve acres more than the land conveyed to Vanmetre now owned by the plaintiff. The two tracts are of the same shape, (parallelogram,) 310 poles long, one being 106 poles wide, and the other 100 poles wide. Again, it would seem from these deeds, that the division-line between the two tracts the subject of dispute now was not actually run, when the deeds were made. The deed to McOullough gives the length as 310 poles, while the deed to Vanmetre gives the length as 300 poles. In fact, the inference to be drawn from the reading of these deeds is, that very few, if any, of the metes and bounds of these two parcels of land were then actually run, as no corners are stated to have been made or marked. The courses of the tract in the deed to McOullough are as follows: "Beginning at the lower corner of a tract sold to Miriam Sayre in Little Mill creek bottom, and running with said line west three hundred and ten poles to the closing line of the 7, 000 acre tract, and with said line north eighteen degrees wrest, one hundred and six poles; thence east three hundred and ten poles to the centre of Little Mill creek, thence up the same with its meanders to the beginning." While the courses of the Vanmetre tract are thus given in his deed:" Beginning at the lower corner of a tract sold to Joshua McOullough in Little Mill creek, and running with said McCullough's line west three hundred poles to the closing line of the 7, 000 acre tract, thence with said line north, eighteen degrees west, one hundred poles, thence east three hundred poles to the middle of Little Mill creek, thence up the same with its meanders to the beginning."

The surveyor, in his report made to the court in this case, states, that the parties to this suit plaintiff and defendant point out to him a birch on Little Mill creek, which they agreed was the lower corner of the tract sold to Miriam Sayre in " Little Mill creek bottom" and therefore the beginning corner of the defendant's (Schwartz's) tract of land. The surveyor then ran a line nearly west that is, N. 88 deg. 40 min. W. along what was said by the said parties to be a line of the Miriam Sayre tract, till it intersects the closing line of the 7, 000 acre tract of Daniel C. Sayre at a hickory marked as a corner, which it was agreed by the said parties was the second corner of the defendant's (Schwartz's) tract of land.

If there had been no parol evidence in this case, as neither of the deeds giving the boundaries of the tract of land owned by the defendant, Schwartz, or by the plaintiff, Gwynn, give any marked corners but only the metes and distances of each tract, all that could he done to ascertain the boundaries of these tracts of land and the true division-line between them would have been to run out these two tracts of land according to the courses and distances contained in the deeds. The true division-line between these tracts would then have been S. 88 deg., 40 min. E., so as to be parallel with the first line of the tract conveyed to McCullough; for though this line was said in the deed to run west, yet it did not run quite west but N. 88 deg., 40 min. W., and it is therefore to be supposed that the division-line between these two tracts, stated in the deed to run east, really ran S. 88 deg., 40 min. E. or parallel with the first line. The division-line described in one of these deeds as 300 poles and the other 310, would according to both deeds terminate at Little Mill creek.

The plaintiff insists, that the division line between the tracts of the plaintiff and defendant must be found by so running out the courses and distances of the deed, under which he and defendant claim. This, if done, would show the verdict of the jury in favor of the plaintiff to be correct, and the judgment of the court below, of September 15, 1886, would be affirmed. The defendant however insists, that there was before the jury abundant evidence to justify the verdict of the jury on the first trial for the defendant, and that the court ought then to have entered up a judgment for the defendant instead of granting on the motion of the plaintiff a new trial, as it did on February 20, 1886. All the evidence given at this trial is certified by the court; and in deciding, whether the Circuit Court erred in awarding such new trial, we are bound to give full weight to the defendant's evidence; and, when the evidence in favor of the plaintiff conflicts with that of the defendant, we must reject the plaintiffs evidence.

When the evidence is thus viewed, we may regard this as the case as proven by the evidence in the estimation of the jury: that D. C. Sayre, before he executed to his grandchildren said two deeds dated August 8, 1856, under which the plaintiff and defendant respectively claim, marked as a corner of the division-line between the said two tracts of land a hickory on the closing line of the 7, 000 acre tract, and...