Hatfield v. Workman

• Decision Date: 19 December 1891
• Citation: 35 W.Va. 578,14 S.E. 153
• Court: West Virginia Supreme Court
• Parties: Hatfield. v. Workman et al.

14 S.E. 153

35 W.Va. 578

Hatfield.

v.Workman et al.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1891.

Estoppel—Boundaries—New Trial.

1. Where a large tract of land was laid off, for the convenience of selling, into smaller tracts by running a base line and laying down the division lines by protraction, which division lines were never actually survoyed, and the coterminous owners of two of said tracts attempt to survey and mark tho true division line between their said lots, and in so doing a mistake is made in running said line so as to include a large portion of one of said lots within the other, there being no dispute as to the true boundary, when said mistake is discovered neither of the parties is estopped thereby from claiming his rights, nor can it be construed as a license from the one party to the other to cut timber between the true line and the mistaken boundary.

2. In a case where all the evidence introduced on the trial is clearly insufficient to warrant a verdict in favor of the plaintiff, and the jury nevertheless finds a verdict in favor of the plaintiff, it will be error to overrule the motion of the defendant to set the same aside, and grant him a new trial. Wandling v. Straw, 25 W. Va. 692.

(Syllabus by the Court.)

Error to circuit court, Boone county.

Action by William Hatfield against William Workman, James Pugh, and A W. Forsy the for trespass in cutting downand destroying certain trees and underwood. Verdict and judgment for plaintiff. Motion for new trial denied. Defendants bring error. Reversed.

Abram Hurlew, for plaintiffs in error.

L. E. & W. E. Chilton, for defendant in error.

English, J. This was an action of trespass, brought by William Hatfield against William Workman, James Pugh, and A. W. Forsythe, in the circuit court of Boone county, to recover damages for cutting down and destroying one curly walnut tree of the alleged value of $2,000, and underwood of various kinds of the alleged value of $500, then and there growing, standing, and being in and upon a certain tract' of land there situate, of which the plaintiff was seised and possessed, and taking and carrying away the same, and converting and disposing thereof to their own use, by which the said land and realty was greatly injured, to the plaintiff's alleged damage of $2,000. On the 10th day of April, 1S88. the defendant William Workman appeared by his attorney, and pleaded not guilty, and issue was thereon joined. On the l6th day of July, 1888, Samuel Bradley, the county surveyor of Boone county, was directed, after giving the parties or their attorneys 10 days' notice, to do such surveying as either party might require, which surveyor's plat and report, in pursuance of said former order, was returned and filed on the 16th day of October, 1888; and on the 18th day of April, 1889, said ease was submitted to a jury, which resulted in a verdict in favor of the plaintiff for the sum of $625; and thereupon the defendants, by counsel, moved the court to set aside said verdict, and grant them a new trial, upon the grounds that said verdict is contrary to the law and the evidence in the case; which motion, being heard, was overruled; to which ruling of the court defendants, by their counsel, objected and excepted; and judgment was rendered against the defendants William Workman and F. A. Forsy the for the sum of $625, with legal interest thereon from the 19th day of April, 1889, till paid, and costs; and from this judgment the defendants obtained this writ of error.

The evidence adduced in the cause by both plaintiff and defendants was certified by the court, which discloses the fact that both plaintiff and defendants derive their title to the land in controversy from a common source, to-wit, from Alfred Beckley, the commissioner of forfeited and delinquent lands for the county of Fayette, the land conveyed being part of 174, 673 acres patented on the 9th day of January, 1796, to Thomas Rutter and Reuben Etting, assignees of William Du vail, forfeited for failure to enter the same on the commissioner's books, and for the non-payment of taxes; which land, for convenience in selling, was platted in various tracts, which were numbered, and the division line between lots Nos. 26 and 27, or rather the proper location thereof, causes the controversy in this case. Lot No. 27 was purchased by one William Walker from said Alfred Beckley; said William Walker conveyed 3, 000 acres thereof adjoining the line between said lots 26 and 27 to Joseph Workman; and by subsequent conveyances a portion of said lot No. 27 was conveyed to the defendant in error William Hatfield, and also by several conveyances said lot No. 26 was conveyed to the plaintiff in error William Workman, which two tracts of land adjoined each other along the original division line between said lots 26 and 27, which were laid off as aforesaid by Alfred Beckley, commissioner as aforesaid. It appears that said Beckley, in dividing said lands into lots, only ran a base line along one side thereof, which was divided into sections a mile in length, and at the end of each mile was a marked tree. The beginning corner at a maple and sugar was well known and recognized, and the corner of lot No. 2fi was fixed at the two-mile tree, and the division line between lots 26 and 27 was never surveyed, but was laid down by protraction. Said lot No. 26 was laid down as a regular parallelogram, fronting three miles on the base line; and having the beginning corner fixed, and the courses and distances given, no surveyor could make a mistake in locating the same. With these data, S. E. Bradley, the surveyor or Boone county, in pursuance of an order of court, surveyed and platted said lots 26 and 27, and in his report located the true division line between said lots 26 and 27, and he further reported that the valuable walnut tree over which said suit occurred between said Hatfield and Workman et al. was found to be 284 poles from said division line, in said lot No. 26. The plaintiff, however, in order to show that this walnut tree was located in said lot No. 27, attempted to show that a line had been agreed upon between the respective owners of said lots which included said walnut tree within the bounds of said lot No. 27; and Andrew Workman was introduced as a witness, and was asked: "Please state if you know any thing about certain tracts of land in Boone county. West Virginia, known and designated as lots 26 and 27. If so, who formerly owned them, and who owns them now?" and answered: "I know the lots perfectly well, where they lie, and that they join each other, and are situate in the south-west of the county of Boone, on the waters of Pond creek of Little Coal river, and of the Laurel Fork of Spruce Fork of Little Coal river, and near Buffalo creek. A company consisting of myself, Joseph Workman, and others bought lot No. 27 and lot No. 23. 1 do not know who bought lot No. 26. Afterwards a man by the name of David Man-gus owned the tract No. 26, and adjoining the tract No. 27. I do not know who owns the lot No. 26, and I think William Hatfield, the plaintiff, owns the larger portion of tract No. 27. I sold the tract to him; that is the greater portion of the tract I owned." He was also asked: " Please state if any line was ever agreed between the owners of lot No. 26 and lot No. 27. If so, when, between whom, and where was the division line fixed?" and answered: "There was aline agreed be-tween David Mangus and myself. David Mangus at that time owned lot 26, and I owned a part of lot No. 27. The agreed line was made about forty years ago. We got Isaac Morgan, a surveyor, to run the line between us. Myself and Joseph Mangus carried the chain, and David Maugus marked the line. We began on the division line on a creek called the ' Skinned Poplar of Laurel Fork of Spruce Fork of Little Coal River, ' nearly due east up what we called in that day and time the' Big Lock Ridge, '" etc. And in answer to question 5 he says: "I knew a very large black-walnut tree standing on the head of Cow creek, in a hollow called the ' Right-Hand Fork of Cow Creek.' The line we run, which is above described, left the said walnut tree standing in lot No. 27 as we run it, and I owned part of lot No. 27 at that time." And on cross-examination he was asked, " Did you, or did you not, think that you were running on the line laid down by Commissioner Beckley in his division of this tract into lots?" and answered, "That was what we were aiming to do. We wanted to And where our land joined." He was then asked, "Was there any disputed line between yourself and Mr. Mangus?" and answered, "There was no disputed line." He was then asked, "From information that you have since received, have you, or have you not, found that you were deceived in the distance from the starting-point on Buffalo to the place where you started on the division line between lots 26 and 27? " and answered, " From the...