Matheny v. Allen
| Decision Date | 04 February 1908 |
| Citation | 60 S.E. 407,63 W.Va. 443 |
| Parties | MATHENY et al. v. ALLEN. |
| Court | West Virginia Supreme Court |
Submitted September 11, 1907.
Syllabus by the Court.
It is a general rule that, in locating boundaries of land, resort is to be had first to natural landmarks, next to artificial monuments, then to adjacent boundaries, and last to courses and distances.
[Ed Note.-For cases in point, see Cent. Dig. vol. 8, Boundaries §§ 3-5.]
Calls for adjoiners must yield, generally, to calls for monuments, where there is repugnancy between them in a description of land.
[Ed Note.-For cases in point, see Cent. Dig. vol. 8, Boundaries §§ 6-16, 30-33.]
A call irreconcilable and incongruous with another call of a grant, which appears to have been inserted by mistake, may be wholly rejected and disregarded.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 3-5.]
Error to Circuit Court, Raleigh County.
Action by M. F. Matheny and others, against Henry Allen. Judgment for defendant, and plaintiffs bring error. Affirmed.
M. F. Matheny and Ashton File, for plaintiffs in error.
A. D. Preston and John W. McCreery, for defendant in error.
This action of ejectment was heard upon an agreed statement of facts, by the court, in lieu of a jury. The issue is so defined between the parties that both concede that a single question is involved, and therefore all matters not affecting this question are precluded from recital or consideration in this opinion. That question relates to a construction of the grant under which plaintiffs claim, and, abstractly, is this: Do calls in a grant or deed for trees as corners prevail over further call therein that a line between such trees is with an old-established line of an adjoining tract or survey, when it is found that such calls are inconsistent? In other words, in a description of land, in a conveyance, when there is repugnancy between them, which yields-calls for natural objects or calls for adjoiners?
Plaintiffs claim under a grant from the commonwealth to Richard Toler, and defendant claims under an older patent. Plaintiffs are vested, by regular conveyances and payment of taxes, with title to the Toler grant, and defendant is a tenant of those likewise vested with title to the older grant. Neither plaintiffs nor defendant, nor those under whom they respectively claim, had actual possession of the strip of land in controversy until defendant moved thereon about two months before the institution of this suit. Actual and adverse possession under the Toler grant existed from the date of that grant (August 11, 1829); while actual and adverse possession of the tract claimed by those under whom defendant holds dates only from September 4, 1849. Plaintiffs' title, notwithstanding junior to the other, therefore, by such possession, became good as against the title of the senior grant not so occupied for that period of 20 years, to so much land as is included by the description in the grant to Toler, since such possession inures to the extent of the boundaries called for by the paper under which one claims. But this brings us directly to the point at issue: What are the boundaries to the extent of which plaintiffs can claim by reason of such adverse possession, ripened into good title against the senior grant as aforesaid? If the contention of plaintiffs as to construction of the calls of the Toler grant is well founded, then the boundary called for in the deed of those under whom defendant claims, based upon title from the senior patent, interlocks with that of plaintiffs. There having been no actual adverse possession of the land embraced in the interlock, except for the brief period aforesaid, the case turns solely on a construction of the description in the Toler grant.
The description in the Toler grant, construction of which, as contended by plaintiffs, will cause interlock with the tract owned by those under whom defendant holds, and will take from them the strip of land in controversy, is as follows: "Beginning at a white oak and pine near Preston's corner *** S. 10~ W. 116 poles to two white oaks and gum; and thence S. 83~>> W. 160 poles with Preston's line to the beginning." The survey and plat in this case show that this beginning corner is several hundred feet from the Preston line; that the gum and two white oaks are at even greater distance from it; and that, to extend the line running to the gum and two white oaks to the Preston line, thence following that line to Preston's corner, and thence to the white oak and pine, makes the boundary of the land in controversy, sought to be recovered by plaintiffs. From this it will readily be observed that plaintiffs seek recovery of the land that lies between the Preston line and the line running from the two white oaks and gum to the white oak and pine, the former of which is south of the latter, but not quite parallel thereto. To put it in different phrase, plaintiffs claim that they have a right to go to the Preston line, thereby proceeding several hundred feet beyond the corner called for in the Toler grant (two white oaks and gum) then to follow the Preston line to Preston's corner, and then to connect, by a line several hundred feet in length, Preston's corner with the beginning corner called for in the Toler grant (white oak and pine). Virtually the result of this would be to add three lines to the description of the grant. True, "with Preston's line" is called for in the grant; but survey shows that it is not the line between the two white oaks and gum and the white oak and pine, and that you cannot run "with Preston's line" between those corners, as the description in the grant seems to imply. Between the last line of the grant and Preston's line there is a wide strip of land. Can plaintiffs recover this strip? Does it belong to them by reason of the title they have acquired under the Toler grant? Shall they be compelled to stop at these corner trees, for which their title papers call, or may they go southward beyond them, several hundred feet, to Preston's line, which their title papers may mistakenly suppose is between these two corners marked by the trees?
Intention to make the call for the Preston line one of the outside boundaries is argued on behalf of plaintiffs. But upon the present inquiry we can look only to the language of the grant for such intention, as nothing on this score is contained in the agreed statement of facts. Mistake is also argued; but to discover it, we are confined the same. We are therefore bound in our consideration to the face of the description; and, whatever may have been the intention at the time, we cannot now say that anything other was intended than that which is the result of the language employed, as measured by the rules of construction which the law would have us apply. The general rule, applicable to the case we find here, is stated in 5 Cyc. 915, as follows: "As a rule, lines marked on the ground for the survey or adopted by the surveyor are to be regarded rather than call for adjoiners, and when there is a discrepancy such lines govern." The same book, at page 921, says: "In case of conflict, calls for adjoiners will, as a rule, yield to calls for artificial monuments and marks." ...
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