Lewis v. Yates
| Decision Date | 14 October 1913 |
| Parties | LEWIS v. YATES et al. |
| Court | West Virginia Supreme Court |
Submitted March 14, 1911.
Syllabus by the Court.
A subsequent survey calling for lines of the older one is not a monument thereof, and the call therefor is only a circumstance, admissible under some conditions, as evidence of the location of the lines of the older survey.
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.
Error to Circuit Court, Greenbrier County.
Action by Cornelia A. Lewis against W. C. & James A. Yates. Judgment for defendants, and plaintiff brings error. Reversed and remanded.
John Osborne, of Union, for plaintiff in error.
Henry Gilmer, of Lewisburg, for defendants in error.
POFFENBARGER P.
The report of the decision on a former writ of error in this case, found in 62 W.Va. 575, 59 S.E. 1073, fully discloses its nature and character and the main features of the evidence, and settles the principles involved. On the new trial then awarded, there was another verdict for the defendants, on which judgment was rendered.
The argument submitted in support of the action of the court in refusing to set aside the verdict does not question the soundness of the principles enunciated and applied in the former decision. It abandons the argument in the former case founded upon conflict between the Patterson survey and the Banks survey lying to the northeast thereof, and the location of the Hamilton survey, as contended for on the former writ of error. It impliedly, if not expressly, admits the necessity, in the event of the adoption of the theory of the defendants, of either shortening lines of the Powell 470-acre survey, thereby reducing its quantity about one-half, or removing the Frogg and Wolfenbarger surveys a great distance to the southeast, contrary to the location thereof, as shown by monuments that are practically unquestioned.
The location of the irregular southern boundary line of the Patterson survey in accordance with the claim of the defendants, as controlling the location of the Powell 470-acre survey, is vigorously insisted upon. The Patterson survey lies east of the Powell survey, and is one of its monuments, or, at any rate, its northwest corner and southwest corner are called for as corners of the 470-acre Powell survey. The beginning point of the Patterson survey is its southeastern corner, where two hickories and poplars on a hillside are called for. The line runs thence S. 80 W. 52 poles to a black oak, white oak, and hickory, N. 54 W. 34 poles to a black oak, S. 80 W. 18 poles to a double maple and S. 30 W. 30 poles to two white oaks, the southwest corner. The survey was made April 29, 1791. The two Powell surveys were made March 23, 1798. The 400-acre one is described as running with lines of the Patterson survey, above set forth, and calls for their courses, distances, and timber. On February 7, 1799, what is evidently a part of the Powell 400-acre survey was again surveyed for Harrison and Dixon. Their survey was estimated to contain 106 acres, and purports to run with this irregular southern boundary of the Patterson survey, calling for the same courses, distances, and timber. Though made about one year later than the two Powell surveys, it does not call for the Powell 470-acre survey, which corners on the Patterson 200-acre survey at the same point at which it claims to do so. Another Harrison and Dixon survey, calling for 205 acres bears the same date as the one just described. According to its description, it adjoins the Patterson survey and the other Harrison and Dixon survey on the east, and comes out of the Powell 400-acre survey. These two Harrison and Dixon surveys, having a combined acreage of 311 acres, taken out of the Powell survey of 400 acres, have been located, and their location harmonizes with the contention of the defendants, if the northern line of the smaller one is identical with the southern boundary line of the Patterson survey. To make them coincide, however, it is necessary to shift the Powell 470-acre tract nearly 100 poles west of the location given it by its southeastern line run from the corner of the Woofenbarger tract, and nearly or quite 50 poles south, and thus shift the location of the Frogg and Wolfenbarger land to the south and west equal distances. Otherwise it would shorten some of the lines of the Powell 470-acre tract, one of them nearly 100 poles, and greatly reduce its quantity. The line called for between the northeastern corner of the small Wolfenbarger tract and the southwest corner of the Patterson, in the surveys of the 470-acre and 400-acre Powell tracts, is described therein as being 120 poles long. In the Harrison and Dixon survey, the distance from the small Woofenbarger tract to what is therein called the corner of the Patterson survey is given as 26 poles. All of these inconsistencies and conflicts argue very strongly a mistake in the call of the Harrison and Dixon survey for the southern boundary of the Patterson survey, or a subsequent wrong location of the Harrison and Dixon survey.
The last-named survey was shown to have subsequently passed into the ownership of one Hayes, and in a deed from Nathan Henning to Chas. A. Stuart, purporting to convey the Powell 470-acre tract, it is described as beginning at two white oaks, corner to the Hayes land. This is one of the circumstances strongly relied upon in the brief for the defendants in error. In addition to this, it was shown in evidence that a small white oak was found at the point claimed by the defendants as the location of the southwest corner of the Patterson survey bearing ancient marks on one side thereof, the side toward the corner as claimed by the plaintiff, and counting more than 100 years. One or more of the surveyors said the annulations indicated an age greater than that of the Patterson survey. There is no proof that this tree Was marked as a corner tree,...
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