King v. Norfolk & W. R. Co

• Decision Date: 20 July 1893
• Citation: 90 Va. 210,17 S.E. 868
• Court: Virginia Supreme Court
• Parties: KING. v. NORFOLK & W. R. CO. et al.

17 S.E. 868

90 Va. 210

KING.

v.NORFOLK & W. R. CO. et al.

Supreme Court of Appeals of Virginia.

July 20, 1893.

Construction of Deed —Description— Adverse Possession.

1. Where a deed is made to correct a mistake and supply an omission in a previous deed between the same parties", it is proper to construe the two deeds together.

2. Where a deed to a railroad company describes the land conveyed by reference to the line of the road of such company as then located, but not built, the boundary lines are not affected by a subsequent change in the location of the road.

3. Complainant's ancestor conveyed to defendant railroad company's predecessor in interest certain land, with a provision that the grantor should have the right to use any portion of the land not required by the grantee for railroad purposes; the grantor to yield possession when the land might be needed by the company. Held, that a failure by the railroad company, for 40 years thereafter, to inclose, improve, or occupy a part of such land, did not affect its rights in the land.

Appeal from circuit court, Washington county; John A". Kelley, Judge.

Bill by Joseph L. King against the Norfolk & Western Railroad Company and others. From a decree for said railroad company, complainant appeals. Affirmed.

Vance, White & Buchanan, for appellant.

Fulkerson, Page & Hurt, for appellees.

FAUNTLEROY, J. This is an appeal from a decree of the circuit court of Washington county, rendered on the 4th day of February, 1892, in the case of Joseph L. King, Complainant, vs. Norfolk & Western R. Co. et al., Defendants, in said court pending. By a deed dated 18th June, 1848, James King conveyed to the Virginia & Tennessee Railroad Company a parcel of land 370 feet wide and 1, 500 feet long, which said length, the evidence shows, was threetimes the length that the said James King's ownership and right to convey extended, and ran the distance of 1, 000 feet, into the lands of S. E. Goodson, the coterminous landowner. This deed was acknowledged Jane 18, 1848, and was recorded December 31, 1857. The land conveyed by the said deed is described in the deed as a parcel of land containing about 10 acres, and lying on the line of the Virginia & Tennessee Railroad, near the lines betw⁷een the states of Virginia & Tennessee, and bounded as follows: "Commencing at a stone on the state line, 185 feet from the center line of said road, and at right angles to the same, and running at right angles, across said center line, a distance of 370 feet: thence, parallel to the said line of road, a distance of 1, 500 feet; thence, at right angles across the road, a distance of 370 feet; thence, parallel to the line, 1, 500 feet, to the point of commencement, —containing ten acres in addition to the 80 feet before conveyed for the right of way to said road: provided, however, that the said company shall have no power to sell or convey said land to any other person, nor shall the said company have the right to use any portion of said land for any other purposes than those strictly connected with the business of the road, nor shall the said company have the right to erect any buildings on said lands, designed for a residence for the agents or servants of the company, or for any other purpose. It is further understood that the said James King shall have the right to use any portion of the land not required by the said company, he yielding possession of the same whenever the land shall be needed by the company." And with the further proviso that "for the sum of $250.00 the said James King conveys to the Virginia and Tennessee Railroad Company the right to erect on a portion of said track, not exceeding 3 acres, the buildings necessary for accommodations of their agents and servants."

By deed dated the—day of June, 1852, James King conveyed to the Virginia & Tennessee Railroad Company a parcel of land 370 feet in width, and extending from the line of S. E. Goodson to the line between the states of Virginia and Tennessee. This deed was not recorded, but is wholly in the handwriting of James King, and was in the possession of the appellee, the Norfolk & Western Railroad Company, the successor of the grantee, the Virginia & Tennessee Railroad Company. This possession is prima facie evidence of its delivery by the grantor to the grantee. 2 Greenl. Ev. § 297. The deed of June, 1848, and the deed of June, 1857, were made more than 40 years ago. James King, the grantor in both the said deeds, lived over 14 years after the deed of 1852 was made, and died on the 24th July, 18G0, leaving his will, which was duly proven and admitted to record, never having, either in his lifetime, or in his said last will, raised any question, or set up any claim, as to the boundaries of the land conveyed to the Virginia & Tennessee Railroad Company by the deeds of 1848 and 1852; and the appellant, Joseph L. King, allowed 23 years to elapse after the death of the said James King, the grantor in the said deeds, before the filing of his bill in this cause. During the long period of over 40 years the railroad company has been in the possession, use, and control of the land; and no attempt has been made or asserted by the appellant or by James King to use the said land, or to make improvements thereon. The deed of June 18, 1848, conveyed 1, 500 feet of land along appellee's road, when, in fact, the grantor, James King, owned only 500 feet between the state line and Goodson's line. The deed of June, 1852, corrected this mistake by convoying the land, 370 feet in width, between the state line and Goodson's line. By the specifications in the deed of June 18, 1848, the grantor failed to convey to the state line, and the land conveyed touched the state line only at the point of beginning, and thereby left unconveyed a wedge-shaped, triangular piece of land between the land conveyed and the state line. The deed of June, 1852, corrected this by beginning on Goodson's line, and conveying to the state line. From the face of the deeds, and from the evidence in the cause, it is manifest that the purpose and the achievement of the deed of June, 1852, correct the two aforesaid mistakes in the deed of ...