Meadow River Lumber Co. v. Smith

• Decision Date: 30 May 1944
• Docket Number: 9554.
• Citation: 30 S.E.2d 392,126 W.Va. 847
• Parties: MEADOW RIVER LUMBER CO. v. SMITH et al.
• Court: West Virginia Supreme Court

30 S.E.2d 392

126 W.Va. 847

MEADOW RIVER LUMBER CO. v. SMITH et al.

No. 9554.

Supreme Court of Appeals of West Virginia.

May 30, 1944

Herbert M. Blair, of Weston, for appellant.

S H. Sharp, of Marlinton, and J. H. White, of Fayetteville, for appellees.

LOVINS Judge.

Sun Lumber Company complains of an adverse decree rendered by the Circuit Court of Greenbrier County.

This controversy involves the title to timber on a 100-acre tract of land, which is within the exterior boundary lines of another 5,000-acre tract. A decree of the Circuit Court of Greenbrier County which, in effect, sustained a demurrer to a bill of review and denied leave to file the same, was reversed and the cause remanded. Meadow River Lumber Co v. Smith, 121 W.Va. 14, 1 S.E.2d 169. The record on the former appeal is here considered, but a restatement of the facts there shown is unnecessary, they having been stated in the opinion on the first appeal.

Myrtle Smith asserts that she is the owner of a life estate in a tract of land of 100 acres, and her six children claim the fee therein as contingent remaindermen. The basis of their claim is a deed from C. L. McClung to his eight children including Myrtle Smith (nee McClung), bearing date November 2, 1897, and admitted to record on the 16th day of November of the same year. This deed, ineptly drawn, names eight children of C. L. McClung as grantees and in the body of the instrument the names of the grantees are repeated, followed by language purporting to describe the land granted each. Specific words of grant do not appear in the deed, it being provided that the grantor "*** has this day sold unto the parties of the second part one serten tract of land to each one of the above named parties to wit the lands herein and after mention is to be laid off by three good disinterested men chosen by a majority of those above named parties this is to be done inside of one or too years from the time of the dath of C. L. McClung and partey of the first part of this Deed this lands is to to be laid of so as to join each one's tract of land Deede to said parties heretofore by C. L. McClung the land is herein described and bounded by the party of the first part or near as it can be done, ***".

The purported description of the land claimed by Myrtle Smith and the remainder men is as follows: "Mirtle A. McClung is to is to have 100 acue lade of out of the south eastern end of the 578 acre survay pattented to David Hannah and Ald F. McClung, ***".

The tract of land was neither inclosed nor occupied by Myrtle Smith, C. L. McClung having retained a life estate therein, and it was not laid off as provided in the deed.

In 1909, C. L. McClung conveyed to J. O. and L. E. McClung all timber, except that reserved for mine purposes by a former deed, then standing on a tract of approximately five thousand acres, the boundary lines of which include the 100-acre tract claimed by Myrtle Smith and the remaindermen. The timber so conveyed passed by mesne conveyance to Meadow River Lumber Company, Sun Lumber Company being its immediate grantor. C. L. McClung departed this life on February 13, 1923, and the Meadow River Lumber Company acquired its title to the land about March first of the same year. The timber on the 100-acre tract of land was removed by Meadow River Lumber Company between the years 1926 and 1929, and the evidence shows that no claim adverse to the lumber company was made prior to its removal.

Three actions were instituted for the purpose of recovering damages for the removal of the timber. Two ended before this suit was instituted, and the third and last action was dismissed after the institution of the instant suit on the ground that the issues therein had been determined in a chancery suit.

This suit was instituted by Meadow River Lumber Company against Myrtle Smith, Sun Lumber Company and others to enjoin the prosecution of the last action, to cancel the deed from C. L. McClung to Myrtle Smith and, in the alternative, that if Myrtle Smith and the remaindermen be adjudged the owners of the timber cut and removed from the 100-acre tract, that a decretal judgment be entered against Sun Lumber Company for the amount recovered by Myrtle Smith and the remaindermen.

The bill of review being filed in accordance with the mandate of this Court, answers were filed by all defendants, including a formal answer by the guardian ad litem of the infant remaindermen. Demurrers to two of the answers having been overruled, Sun Lumber Company replied specially to the joint and separate answer of Myrtle Smith and her co-defendants. Depositions were taken for the purpose of locating and identifying the 100-acre tract of land, which included the testimony of three surveyors, one of whom had not surveyed the land but had prepared a map from data and field notes of surveys made by other persons, and who testified that he believed the map to be accurate, and that, in his opinion, the said tract was identified in accordance with practicable methods of surveying. Another witness, B. M. Higginbotham, being one of the two surveyors who made the survey and report considered by this Court and mentioned in its former opinion, testified that he had surveyed the 100-acre tract and the adjoining 185-acre tract, to be presently discussed, and had made other surveys in the vicinity of the land in controversy; that the survey and report correctly showed the location of the boundary lines and thus identified the land; that said survey was made according to the directions in the deed; that it had made in accord with the approved and practicable methods of surveying; and that the tract was laid off in compact form. L. G. Swing, the other surveyor who made the survey and report hereinabove mentioned, testified that he had surveyed some but not all of the lines of the 100-acre tract; that he believed that the work done by him and Higginbotham was in accordance with the practicable requirements of surveying; and that the tract was correctly located. All admitted that the north line of the 100-acre tract could be placed at various locations and with termini different from those fixed by them in their survey and report, and that the tract so laid out by north lines at different locations would contain one hundred acres in the southeast end of the Hanna and McClung patent. Another surveyor, Linger, called by Sun Lumber Company, testified with respect to the location of the northern line to the same effect. Higginbotham stated that no surveyor would locate the north line differently from the way he had, even though it was possible to do so. The 100-acre tract as located by all three of the surveyors first mentioned is an irregularly shaped tract, the boundary lines of which are indicated on the map following:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

The location of the line from "C" to the stake just northwest of the letter "H" on the map is the only line which is not definitely located, the other six lines of the 100-acre tract being a part of the lines of the Hanna and McClung patent. Myrtle Smith and her co-defendants also rely on the provisions of the deed under which they claim requiring the 100-acre tract "to join" another tract of 185 acres previously conveyed by C. L. McClung to Otey G. McClung, Trustee. The 185-acre tract is purportedly shown on the map hereinabove mentioned. Higginbotham testified that he located the boundary lines of the 185-acre tract by a survey according to the description in the deed from C. L. McClung to Otey G. McClung, Trustee, which description is as follows:

"one sertin tract of land lying in Greenbrier Courst and adjoining the land of C. L. McClung and others bounded and described as follows, to-wit: Beginning at Lemmons McClung lower connor on Mill Creek it being near Stuart down frum the uper south easterin corner of the Allen McClung survay of 250 acres then this survay is to be Rn form Mill Creek up the op of Clemmins Ridge wherei said Ridge joups and up said Ridge to M. R. McClung line and with the same to the top of Big Mountain and up said Mountain to the top of Shummake Knob at thepatten line athe Skudder survay and and with said patten line to Lemmon McClung linee and with Lemmons McClung line to the beginning suposed to contain form one to too hundred acues of Pine Kick land ling on the head of Mill Creek ***."

In making the location of the 185-acre tract, the surveyor relied on another deed from C. L. McClung to Lemmon A McClung, in which the description is devoid of any courses or distances, and mentions only three natural monuments, two creeks and a certain elevation named Sumac Knob. Presumably, Sumac knob is the elevation mentioned in the description above as "Shummake Knob", which is located on line 13-14 opposite point "16" on the map. There is evidence tending to show that the 185-acre tract did not extent to point "C", and that the northwest corner of the tract was located at or near Sumac Knob. This testimony is based on the survey made by a...