Maxwell v. Kent
| Decision Date | 18 June 1901 |
| Citation | 39 S.E. 174,49 W.Va. 542 |
| Parties | MAXWELL v. KENT. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. In an action of ejectment, in which the controversy turns wholly upon the location of a boundary line between the lands of the litigating parties, and competent, material, and weighty evidence is adduced by both parties in support of their respective claims as to the true location of the line, and there is a verdict for the defendant, such verdict should not be set aside as being against the weight of the evidence.
2. An instruction given at the request of the defendant, and covering only a part of theory of the defense to which it relates, and tending to prove which there is evidence in the case, is open to criticism because of its narrowness; but if not general instruction stating the law upon such theory is given in the case, and the instruction is not in such terms as to give undue importance to the evidence referred to in it, and it is manifest that the giving of such instruction has not operated to the prejudice of the plaintiff, the judgment will not be reversed on account thereof.
3. If in an action of ejectment, the case is such that the rights of neither of the parties are in any way dependent upon any forfeiture under the laws relating to taxes, and there is no evidence in the case of the payment of taxes on any of the property by either of them; and the jury are instructed, at the instance of the defendant, that, if they believe from the evidence the land in controversy is included in the defendant's deed, and he has been in actual possession of any part of the land embraced in the boundary described in his deed, said possession extends to his exterior boundaries and if continued for a period of 10 years, and having paid all the taxes on the same for that period of time, they must find for the defendant,--the giving of such instruction although obviously objectionable, is not a reversible error when it appears that the plaintiff could not have been prejudiced thereby.
4. A ruling of the court below to which no exception is taken will not be noticed in the appellate court.
5. When evidence is excluded, and the action of the court in excluding it is relied upon in the appellate court, it must appear on the record that the evidence rejected was or would have been relevant, material, and important, to make its rejection available as a ground of error.
Error to circuit court, Raleigh county; Joseph M. Sanders, Judge.
Action by Alfred B. Maxwell against John T. Kent. Judgment for defendant, and plaintiff brings error. Affirmed.
McCreery & Keatley and A. P. Farley, for plaintiff in error.
McGinnis, McGinnis & Ball, for defendant in error.
In March, 1898, A. B. Maxwell brought an action of ejectment in the circuit court of Raleigh county against John T. Kent, claiming in his declaration a long strip of land,--about 222 poles in length, and averaging something over 9 poles in width; the southwestern boundary line thereof being straight, and the opposite line irregular, and 9 poles distant from the other at the western end, and 8 poles distant from it at the other end. Only part of this strip containing 10 3/5 acres, is in controversy,--less than 3 acres of it near the eastern end of the strip. About six years before the suit was commenced, Kent cleared the disputed land, and so moved the division fence between him and Maxwell as to inclose it with his land, and has since cultivated it. The question involved is purely one of boundary lines; the land mentioned in the declaration being claimed as part of a large tract of 226 acres belonging to Maxwell, and bounded as follows: Beginning at a white pine on the Giles, Fayette, and Kanawha turnpike road; thence N., 22~ E., 179 poles, crossing White Stick creek at 25 poles, and the location of said road at 140 poles, to two white oaks, one of them marked "F," on the division line between Stuart and Beckley; thence with the same reversed, N., 68~ W., 202 poles, recrossing the road to a large chestnut and gum; then leaving said line S., 22~ W., 179 poles, crossing White Stick creek at 108 poles, to a locust stake near the top of a high ridge; thence S., 68~ E., 202 poles, crossing Berry's branch, to the beginning. The earliest deed in the record, relating to this tract, bears date March 17, 1854. Adjoining this tract on the southeast, and owned with it by Maxwell, lies another tract, of 15 1/4 acres, bounded as follows: Beginning at a corner of the last-mentioned tract, on a white pine on the Giles, Fayette, and Kanawha turnpike road, and with said road N., 43 1/2~ E., 69 poles, crossing White Stick creek at 50 poles; N., 11~ E., 48 poles; due north, 14 poles; N., 50~>> E., 18 poles; N., 21~ W., 10 poles; N., 33~ W., 11 poles, to the intersection of the first-mentioned tract, and with the same reversed, S., 22~ W., 156 poles, to the beginning. The white pine and locust stake corners of the 226-acre tract are in dispute. They are, respectively, the southeastern and southwestern corners. The controversy turns upon the location of these two corners. According to the calls of the deed, the tract is a parallelogram in form, and the other two corners are well known, and not disputed by either party. All of its lines exceed in length the distances called for in the deed; the northern and southern lines being 20 poles too long, and the eastern and western 32 poles too long, as contended for by the plaintiff, and about 20 or 21 poles according to the contention of the defendant. Plaintiff claims the white pine stood at a certain point in the road, and was grubbed out many years ago. Starting from that point, the line crosses White Stick creek at 41 poles instead of 25, and the road at 168 poles instead of 140. There is also a discrepancy in the length of the lines of the 15 1/4 acre tract, the beginning corner of the survey of which is the same white pine. However, there is evidence tending to prove the white pine corner is at the point claimed by the plaintiff. By deed dated November 15, 1853, Alfred Beckley, who originally owned the 226-acre and 15 1/4 acre tracts, and the lands adjoining on the south, east, and west, conveyed to Thomas Warden a tract of land containing 192 1/4 acres, known as the "Tyree Tract," and lying east of the Maxwell lands. Its description calls for the same white pine as one of the corners (the south western), while its eastern line begins on the division line between Stuart and Beckley, is parallel with the eastern line of the 226-acre tract, is 200 poles long, and runs to a white oak marked "B" for the southeastern corner, and thence N., 68~ W., 162 poles, to a stake 1 1/2 poles to the right, north, of the white pine. The white oak marked "B" is well known, and there is a marked line from it to the point claimed by the plaintiff as the place at which the white pine stood. Allowing 3~ for variation, this line was run N., 65~ W., and indicates that the claim of the plaintiff is correct. The distance to White Stick creek is stated in this deed to be 60 poles, following the road, and in the deed to the 15 1/4-acre adjoining tract to be 50 poles, but is found by measurement to be about 60 poles. John Greer, an old man, testifies that a pine tree marked as a corner, and standing at the point contended for by the plaintiff, was seen by him when a boy, and was then known as the "Eugene Fleason Corner"; that it had often been pointed out to him by interested parties, now dead, as the Fleason corner; and that he and a man by the name of Blankenship grubbed the tree up many years ago. Samuel L. Davis testifies that he had known it as the "Fleason Corner," and had helped to make one or more surveys running to that corner, and on one occasion helped Alfred Beckley to survey the Tyree tract, in which survey they ran to said point, and Alfred Beckley had spoken of the corner at that time. Edwin Prince, a former owner of the Tyree tract, had regarded that point as the corner. There was other evidence tending to support the claim of the plaintiff on this point, and but little direct evidence, other than what has been noted, tending to disprove his claim as to this corner. For the location of the other disputed corner, the plaintiff relies principally upon the fact that a line run from the white oak marked "B" through the point claimed by him for the white-pine corner will close with the line from the gum and chestnut (the western line) at a point 211 poles distant from said gum and chestnut corner; that being the length of the eastern line as claimed by him. At this point of intersection there is no stake or anything to indicate that it is the corner, except that it is near the top of a ridge; nor is there any marked line to it from the alleged white-pine corner, although it runs part of the way through uncleared land. The defendant claims this corner is some 20 or 25 poles further north on the line running from the gum and chestnut. Two other tracts, formerly owned by Alfred Beckley, corner with this 226-acre Maxwell tract at the southwest. One is known as the "J. O. Addison Tract," lying on the west; the line dividing it from the Maxwell tract being the line from the gum and chestnut, 179 poles long, and terminating at the locust stake. In the line of the Addison tract a white-pine corner is called for in the deed, by running from the locust-stake corner N., 67~> W., 140 poles. This white-pine corner seems to be well known, and a line run from it S., 66~ E., 150 poles, terminates at the point claimed by the defendant for the locust-stake corner. South of the Addison tract, and cornering at the locust stake, lies the Otis Colwell tract. Its eastern line is a continuation of the line from the gum and chestnut. The locust...
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