McMullin v. Lewis

• Decision Date: 31 January 1872
• Citation: 5 W.Va. 144
• Court: West Virginia Supreme Court
• Parties: John L. McMullin and George M. Morrison v. John D. Lewis and H. C. Dickinson.

5 W.Va. 144

John L. McMullin and George M. Morrison

v. John D.Lewis and H. C. Dickinson.

Supreme Court of Appeals of West Virginia.

January Term, 1872

1. The rule laid dowu in the case of Overton's heirs vs. Davison, 1 Gratt., 211, as limited and explained by the case of Clements vs. Kyles, 13 Gratt., 468, adhered to; that it is proper in a controversy concerning the boundary or locality of a tract of land granted by the commonwealth, pursuant to a survey, to permit to go to the jury as evidence the calls and description of a survey made by the same surveyor, about the same time, or recently thereafter, of a coterminous or neighboring tract, upon which last-mentioned survey a grant has also issued from the commonwealth, whether to a party to the controversy or a stranger, upon such question of boundary or locality, unless plainly irrelevant, to have such weight with the jury as under all the circumstances they may consider it entitled to.

2. A case in which the surveys and grants admitted did not fall within the operation of the above rule.

This was an action of ejectment in the circuit court of Kanawha county, brought to February rules, 1861. Verdict and judgment for the defendants, Lewis and Dickinson, at November term, 1869.

On the trial the defendants offered in evidence several contiguous surveys and grants made by different surveyors other than the one who made the survey of the land in controversy, although made about the same time; the survey of the latter having been made in 1794, and of the former in 1795. The plaintiffs objected to the introduction of the contiguous surveys and grants," as incompetent evidence to prove, or aid in proving, the identity of the land in controversy; or to prove, or aid in proving, its corners or lines or any one of them, or the bounds thereof."

The court overruled the motion to the plaintiffs' objection, and they excepted.

Jan'y Term, McMullin and Morrison vs. Lewis and Dickinson. 1872

The plaintiffs brought the case to this court.

T. B. Swann and Lee for the plaintiffs in error.

Miller & Quarrier and Fitzhugh for the defendants in error.

Lee and Swann maintained:

1. That the court erred in permitting the jury to receive and consider the surveys and grants of the 30, 000 acres (to Work and Corran), the 19, 500 acres, the 27, 000 acres, and the 32, 097 acres, as competent and proper evidence to establish the identity of the 40, 000 acres surveyed and patented to Skiles, under which the defendants claimed.

The survey of Skiles, as we have seen, was made on the 24th of October, 1794, by one Maurice Reynolds, assistant of Reuben Slaughter, who was the surveyor of Kanawha county at that time; the survey of the 30, 000 acres (for Work and Corran) was made on the 10th of January, 1795, by one Charles Ferry, who was also an assistant of the said Reuben Slaughter, but who was another and different person from Maurice Reynolds, the assistant who made the survey of the 40, 000 acres for Skiles. The survey of the 27, 000 acres was made by Ferry on the 12th of March, 1795; the survey of the 19, 500 acres was made by Ferry, and bears date on the 2d of March, 1795, and the survey of the 32, 097 acres, bearing date on the 20th of May, 1795, was made by one William McCreary, who appears to have been also an assistant of the said Slaughter, but was another and different person from the assistant who made the survey of the 40, 000 acres for Skiles, and from him who made the 30, 000 acres, the 27, 000 acres, and the 19, 500 acres, the other surveys referred to.

Thus it will be observed, that although the grants of the 27, 000 acres, the 30, 000 acres, the 19, 500 acres, and the 32, 097 acres were all prior in date to that of the defendants' 40, 000 acres, yet that the surveys on which they were founded were all junior, in point of time, to that of the 40, 000 acres, and were all made by other and different surveyors than the one by whom the survey of the 40, 000 acres was made and returned. The court, however, permitted those junior surveys, made at different periods, ranging from three months to seven, from the time when the 40, 000 acre survey was made,

Jan'y Term, McMullin and Morrison vs. Lewis and Dickinson. 1872

and by different officers from the one who made the survey last named, to go to the jury in connection with the grants issued upon them, not merely as evidence of title outstanding in others superior to that under which the plaintiffs claimed, but also as evidence competent and proper to identify and locate the survey of 40, 000 acres claimed by the defendants.

It is presumed that this ruling was made upon the authority of the case of Overton's Heirs vs. Davison, 1 Gratt., 211. It is submitted that it was an entire misapplication, amounting to total perversion, of the principle laid down by the court in that case.

It is true that in Overton's Heirs vs. Davison, the court of appeals held that on the question of the locality and identity of the survey under which the demandants in that case claimed, surveys made for other parties about the same time, or recently thereafter, by the same surveyor, of coterminous or neighboring tracts upon which grants had issued from the commonwealth, were proper evidence touching such locality and identity, unless plainly irrelevant. What was meant by the court by the expressions," about the same time " or " recently thereafter," must be deduced from the case itself. The surveys which were offered in evidence for the purpose of giving locality to the survey under which the demandants claimed, were both made in the same month of the same year in which the demandants' survey was made. It was made in the month of April, 1785, but the clay of the month on which it was made is not given. The survey of Thomas, one of the two offered in evidence, was made on the 28th of April, 1785, and the survey of Lewis, which was the other, was made on the 29th of April, 1785. Thus the surveys offered in evidence were made within a few days of that whose identity and locality they were offered to prove, and all that can be deduced from the case is, that surveys made within a few days, less than thirty, of that whose identity is sought to be established, are admissible in evidence unless plainly irrelevant. Surely it cannot be maintained that under the authority of that case the survey of the 32, 097 acres made seven months after the 40, 000 acre survey, or the survey of 19, 500 acres, or that of the 27, 000 acres, both made some five months afterwards, or even that of the 30.000 acres made some three months afterwards, could he received in evidence to give locality to the tract of 40, 000 acres. There is nothing in the opinion of the court to warrant the extension of the meaning of the expressions," about the same time" or "recently thereafter," so as to cover periods so much greater than that which occurred in the particular case, and touching which they were employed. Whilst the court held that surveys made within a few days of the principal survey might be considered as made about the same time, or recently thereafter, within the meaning of the rule propounded, it is not to be taken that it would have considered a survey made some seven months after, or even cne made some three months thereafter, as being within the rule, and reason and analogy are alike against it. There must be some limit to the scope of an expression used concerning a period of certainly less than thirty, and probably less than: ten days; and where is it to be found if you shall hold that seven months, or even three, can be embraced within it? Surely there is not that savor of recency about a survey made seven months, or five months, or even three months, after the principal one which it is intended to illustrate, which should impart to it the character of legal and competent testimony on that ground alone, whilst it is confessedly res inter alios acta, and as such otherwise legally inadmissible. A: fter such a period it could not be in any sense, or by any stretch of legal intendment, a part of the res gest, nor could the making of such subsequent survey tend, by any natural process of deduction, to illustrate the identity of the former.

Again, according to the opinion of the court of appeals, the subsequent surveys, to be admitted in evideuce, must have been made by the same surveyor. What is the principle of the admissibility of such evidence indicated by this requirement? Manifestly it is that as the surveyor who does the work in the field of meting and bounding the survey which he makes, is necessarily personally acquainted with its lines and corners; if the principal survey and those which are sought to be used to illustrate it were all made by the same surveyor, the presumption is that he personally knew the lines and corners of them all; and if in the subse- quent surveys he has called for the principal survey, and if the former are identified and located, then they will furnish legitimate aid in identifying and locating the latter, and will he competent and proper evidence for that purpose upon strength of the supposed personal knowledge of the surveyor who made them all, of their respective lines and corners. But this principle is manifestly founded upon the personal knowledge of the surveyor, and can have no application to the case in which the surveys sought to be used as evidence to give location to the principal survey, although they all chanced to be assistants of the same principal surveyor. Neither Slaughter, the principal surveyor, nor Ferry nor McCreary, his deputies, who made the subsequent surveys, can be presumed to have had any such personal knowledge of the lines and corners of Skiles' 40, 000 acre survey made by Reynolds, as would impart to the certificates of Ferry and McCreary of those subsequent surveys, the character and dignity of evidence as to the lines and corners of the 40, 000 acre survey against third persons, strangers alike to all of said surveys...