Marshall v. Stalnaker et als.
| Decision Date | 20 February 1912 |
| Court | West Virginia Supreme Court |
| Parties | Marshall v. Stalnaker et als. |
No particular form of identification of a bill of exceptions in an order, designed to make it a part of the record, nor, in the bill, of a paper intended to be made a part of it, is necessary. Any terms of description indicating, with reasonable certainty, intention to make a paper part of a judicial record is sufficient, (p. 396).
Reference.
A reference in a bill of exceptions to a paper, as containing the evidence adduced on the trial, suffices to incorporate in it two batches of transcribed evidence, bearing the same marks of identification and obviously heard in the same trial, (p. 396).
sion.
Recovery in ejectment on the strength of prior possession without more is allowable only against mere trespassers or intruders without bona fide claims of title, and forcible entrants. The doctrine has no application in cases in which the defendant has acquired the possession peaceably and in good faith, under claim of title, (p. 398).
In the case of a dispute between adjacent owners as to the location of a boundary line, left in a state of uncertainty by the evidence, the defendant may have a bona fide claim of title to the extent of the location he contends for, sustaining his possession during the pendency of the litigation to determine the controversy, (p. 399).
Acquired.
Title by adverse possession under color of title is limited to the boundaries as finally fixed and determined. Outside thereof, adverse possession may be established by enclosure and occupancy, but not otherwise, (p. 398).
Error to Circuit Court, Braxton County.
Action by T. Marcellus Marshall against Ahab Stalnaker and others. Judgment for defendants, and plaintiff brings error.
Affirmed.
Linn, Byrne & 1 Fines and Alex Duliii. for plaintiff in error. Hall Bros, and C. F. Greene, for defendants in error.
The sufficiency of the record on which this writ of error was allowed has been challenged on grounds, pertaining to the bill of exceptions. The order intended to make it part of the record is skeleton in form, saying the plaintiff tendered "his bill of ex- ceptions in the words and figures following, towit: (Here copy the same), which is signed, sealed and ordered to he made a part of the record." The bill itself is likewise in skeleton form, certifying, among other things, "that upon the said trial evidence was given as shown in the paper marked 'Evidence' and having the name of the presiding Judge thereon including the deposition of Peter Bosley, except certain questions and answers marked 'Objection sustained'." As we find a paper, designated "Bill of Exceptions" and bearing the style of the case, and another paper purporting to be evidence and so marked, also bearing the style of the case and the name of the presiding judge, we may reasonably say these papers are those referred to in the order and bill. Nothing more than reasonable certainty is required, as we have often held. Jackson v. Railroad Co., 65 W. Va. 415; DeBoard v. Camden &c. Co., 62 W. Va. 41; McKendree v. Sheldon, 51 W. Va. 516.
The evidence, so marked, is in two batches, each marked the same way and apparently containing a portion of the evidence in the same case. Although the bill speaks of only one paper, marked "Evidence," this misdescription is obviously a trifling inaccuracy, and cannot reasonably be regarded as introducing an element of uncertainty. If we could say there are two such papers in substance and effect, as well as in mere form, the bill would be fatally defective, of course, but we are unable to do so. The recital in the bill of the omission of parts of the deposition of Bosley is the basis of a charge of incompleteness of the evidence; but, as the omitted portions were offered by the plaintiff and excluded at the instance of the defendant, they constitute no part of the evidence introduced and the latter is not affected by its omission. An order entered in the case shows the regular stenographer of the court was excused on account of sickness before the evidence was all in and another substituted. The latter certifies a lot of evidence taken by her which is not included in the paper signed by the judge as evidence nor in the bill of exceptions. Hence, in point of fact, the bill does not contain all the evidence, but the certificate of the judge, saying it does, is conclusive and unimpeachable, and the omitted evidence can neither be added nor used to condemn the bill of exceptions.
Being part of the record, the hill is a verity, "unalterable and unimpeachable. Tracy v. Carver Coal Co., 57 W. Ya. 587.
Practically all of the rulings of the court to which exceptions were taken involve principles governing the disposition of the case on its merits. Though most of them are founded upon the action of the court in overruling objections to instructions requested by the defendant, their correctness depends rather upon the character of the evidence as a whole than upon portions thereof, or conflicting theories arising out of it. The basis of the objections to them is alleged lack of evidence to justify the court in giving them or to sustain the verdict rendered in accordance with the law they apply. Hence, the entire case here practically turns upon the sufficiency of the evidence to sustain the' verdict.
The titles of the parties do not emanate from, a common source nor is either of them traced to the Commonwealth of Virginia or the state. The land in controversy is a narrow strip and the right to it depends upon the location of the troken or angular boundary line between the plaintiff's tract of 128 acres and. that of defendants containing 37 acres. Both are irregular in form, and that of the defendants adjoins the plaintiff's on the west. On the western side of the plaintiff's tract, there is a corner at the apex of an obtuse angle from which the lines run northeast and southeast. The land in controversy lies along these two lines, being a narrow strip something over one hundred poles long. Some years before the institution, of this action, the defendants cleared some of the land within the controverted territory, but, upon remonstrance from the plaintiff and his insistence upon the location of the boundary in accordance with his present claim, the defendants abandoned the strip, or permitted plaintiff to take possession of it, or so far relaxed their efforts to hold it as to enable him to obtain possession thereof. He had a tenant on it for one year. After that, his adversaries again peaceably entered upon it and have ever since been in possession. This subsequent action of theirs seems to have been, taken after thorough investigation as to their rights and under a sincere conviction of the correctness of their theory as to the line and validity of their claim to the land. As io the true location of the line, the evidence is highly contradictory, uncertain and inconclusive in character. The corners and lines directly in question are not conclusively identified or fixed as located by either of the parties. The monuments called for in the deeds at these points have been destroyed and the evidence as to the true location consists, for the most part, of surveys starting from other points and governed by the calls for courses and distances. These surveys are conflicting and inconclusive also. Surveyors say it is necessary to vary from the courses and distances called for in the title papers in order to make them accord with the claims of either of the parties. There is some testimony tending to establish certain objects as monuments on each of the contested lines, but not at all conclusive. The location of the line was. therefore, clearly a jury question.
Though the plaintiff does not trace title to the commonwealth or the state, ten years of open, notorious, exclusive and hostile possession would give title to the land in controversy, provided it is within the boundaries of his deeds; but, as the boundary line is the very matter in controversy, his possession of other portions of his land for that period would not conclusively establish his title to the portion dependent, as to the title, upon the location thereof. Assuming therefore, the sufficiency of the evidence to prove title by adverse possession, the burden is nevertheless upon him to establish the boundary lino so as to include the land in controversy, and since the evidence relating to the boundary line in controversy is inconclusive, so as to raise a question for the jury and not for the court, such possession does not incontestably prove title to the strip in controversy. "Adverse possession under and by virtue of a deed is limited to the premises actually covered thereby." 1 Cyc. 1134, sustained by numerous authorities.
But, invoking the rule enunciated in Tapscott v. Cohbs, 11 Grat. 172, and adverted to in ...
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