Miller v. Estabrook

• Decision Date: 02 April 1921
• Docket Number: 1792.
• Citation: Miller v. Estabrook, 273 F. 143 (4th Cir. 1921)
• Parties: MILLER et al. v. ESTABROOK et al.
• Court: U.S. Court of Appeals — Fourth Circuit

273 F. 143

MILLER et al. v. ESTABROOK et al.

No. 1792.

United States Court of Appeals, Fourth Circuit.

April 2, 1921

[Copyrighted Material Omitted]

E. L Hogsett, of Huntington, W. Va., and D. E. Wilkinson, of Hamlin, W. Va., for plaintiffs in error.

W. C W. Renshaw and Cary N. Davis, both of Huntington, W.Va. (J. S. Clark and H. A. McCarthy, both of Philadelphia, Pa., and Vinson, Thompson, Meek & Renshaw and Fitzpatrick, Campbell, Brown & Davis, all of Huntington, W. Va., on the brief), for defendants in error.

Before KNAPP and WOODS, Circuit Judges, and BOYD, District Judge.

WOODS Circuit Judge.

In this action of ejectment, instituted by George L. Estabrook and Sabin W. Colton, Jr., trustees, against a number of defendants, the defendant Joseph D. Miller disclaimed title except to one tract of 40 acres, and the defendant Jane Miller disclaimed title to all but three tracts of 42 acres, 14 1/2 acres, and 10 acres. On trial of the title to these tracts the District Judge directed a verdict in favor of the plaintiffs for all the minerals on 38 1/2 acres of the 40-acre tract claimed by Joseph D. Miller, and on the 14 1/2 acres claimed by Jane Miller, and in favor of Jane Miller for the tract of 10 acres and 42 acres claimed by her. The defendants Joseph D. Miller, Jane Miller, and Jennings Oil Company, their lessee, assign error in the admission and exclusion of testimony, and in the direction of a verdict in favor of the plaintiffs for minerals on the two tracts of 38 1/2 acres and 14 1/2 acres.

The plaintiffs traced their title to the two tracts of 38 1/2 and 14 1/2 acres from a grant to James Carnohan, dated November 13, 1786, for 30,000 acres, and a grant to Samuel Smith, dated June 29, 1797, which overlapped. The title under the two grants became united in Henry McFarlan in 1854, and from him plaintiffs derive their title. The plaintiffs also undertook to show common source and their superior title under it. The defendants' adverse possession would defeat plaintiffs' title, unless the District Judge was right in holding that the possession of the defendants and their predecessors in title was limited to the surface by reason of the severance of the surface and minerals.

We consider first the proof of title to the tract of 38 1/2 acres, and of the severance of the surface and minerals. The vital point in plaintiffs' case is whether there was a severance of the surface and minerals, of which defendants and their predecessors in title had due notice. They claim that a severance was effected in 1888 in the course of plaintiffs' title by the following instrument, termed a disclaimer, which recites in full the circumstances under which it was executed by A. C. Chaney then in possession of the land:

'Whereas, certain actions of ejectment are now pending in the District Court of the United States for the District of West Virginia, in favor of 'Henry McFarlan and others against Lewis Adkins and others,' 'John P. Yelverton and others against Jeremiah Witcher and others,' 'Gustavus A. Sacchi against James A. Holley and others,' 'Gustavus A. Sacchi against John M. Reece and others,' 'Gustavus A. Sacchi against A. J. Barrett and others,' for the recovery of a tract of land heretofore conveyed by Henry McFarlan and others, trustees of the Guyandotte Land Company to Gustavus A. Sacchi by deed bearing date on the 27th day of June, 1865, and recorded in the office of the recorder of Cabell county, in Book A (new series), page 1/4; and

'Whereas, Alex C. Chaney is in possession and claiming title to a portion of said land, so sought to be recovered, and is desirous of settling any and all conflicting claims to lands so occupied and claimed by him:

'Now, therefore, the said Chaney, in consideration of the premises and of being released from all liability for costs in relation to lands sought to be recovered as aforesaid, doth hereby disclaim all right, title, claim, demand, or interest in and to all and any land set out and described in said declarations in said actions of ejectment, except a piece or parcel of land situate, lying and being a survey made by Samuel Harris on the 28th day of September, 1855, for 95 acres. But the said Chaney hereby disclaims all title to or interest in all coal (except so much as shall be required for domestic purposes) and iron ore, hydrocarbon oils, salt brine, natural gas, and all other minerals in, upon or under the said tract of land herein excepted, with the exclusive right to the plaintiffs and those claiming under them for the rights of

way for tram, rail, and wagon roads through said land so excepted, and to dig for and mine coal, iron ore, bore for oil or natural gas, and the necessary conveniences on said land for storing oil and coal, and the transmission of the same by the best and most convenient means to market.

'And the said Chaney further agrees that the plaintiffs in either of said actions may take judgment against him in ejectment, for the interest by him herein disclaimed, and to that end he empowers any attorney of said court to appear for him in either of said actions, and consent that judgment be entered and that this disclaimer be filed as part of the record in such case.

'Given under my hand and seal this 18the day of September, 1888.

his 'A. C. X Chaney. (Seal.)' mark

1. It was stipulated that the courthouse of Lincoln county, where the land was located, and all the records, were destroyed by fire in November, 1909. As evidence that the defendant Joseph D. Miller derived title through Chaney the District Judge admitted the evidence of Mr. Pendleton L. Williams, an attorney, to the effect that before the destruction of the records he had made an abstract of the title to the land embraced in the Smith grant, including the land in dispute, which he produced; that his memory was not so refreshed by the abstract that he could testify to its correctness from memory; that his abstract showed the record of derivation of defendant Joseph D. Miller's title by successive deeds from A. C. Chaney; that it was his habit in making abstracts to note any defect or limitation in the deeds; and that there were no notations that would effect the derivation of the defendants' title from Chaney. This evidence and the abstract itself were admitted over the sole objection that the witness had no recollection of the record and that his memory was not refreshed by inspection of his abstract. There was no objection on the ground that the plaintiffs should have introduced the original deeds or proved their loss. We think the abstract was clearly admissible as the best available evidence of the record. 10 R.C.L. 909, and authorities cited. There was no evidence in conflict with the abstract of Mr. Williams. On the contrary, the evidence of the defendant Miller as to the source of his title and possession strongly confirmed it. Taking all the evidence together, it met the requirement that evidence as to the existence of lost documents must be clear and convincing.

2. Error is assigned 'in admitting in evidence for the plaintiffs the title papers filed as Exhibits 1 to 50, inclusive, and in admitting each of them. ' There was a general objection made at the trial to the admission of all of plaintiffs' exhibits, but no grounds were stated except as to Exhibits 1, 4, 21, and 25. Objections to evidence, without acquainting the trial court of the grounds, will not be considered by the appellate court. The objections to Exhibits 1, 4, and 25 were not pressed in this court. The objection made to Exhibit 21, copy of will of William G. Sands, in the trial court, was that 'the copy of the will offered in evidence does not show that it was ever probated in the county of Chenango, N.Y., where William G. Sands lived. ' The only objection pressed here is that there was no evidence that the will was ever probated in Lincoln county, W. Va.

'Where a party excepts to the admission of testimony, he is bound to state his objection specifically, and in a proceeding for error he is confined to the objection so taken. If he assign no ground of exception, a mere objection cannot avail him. ' Burton v. Driggs, 20 Wall. 125, 22 L.Ed. 299; Noonan v. Caledonia Mining Co., 121 U.S. 393, 400, 7 Sup.Ct. 911, 30 L.Ed. 1061.

Besides, the copy of the will, being properly authenticated under R. S. Sec. 905 (Comp. St. Sec. 1519), was admissible in evidence.

3. This brings us to the question: Was the instrument above quoted, called a disclaimer, in effect a quitclaim deed from Chaney, so that his possession thereafter would be limited to the surface alone?

In Woodall v. Clark, 254 F. 526, 166 C.C.A. 84, we held a paper in almost identical language to be in effect a quitclaim deed. Careful reconsideration has strengthened that conclusion. It is true an ordinary disclaimer is merely a pleading in a case to escape costs, but it may be much more. In Prescott v. Hutchinson, 13 Mass. 440, the court said as to a disclaimer by a tenant:

'At common law such a disclaimer was never considered as a bar to the action. So far from showing that the defendant had no right to the demanded premises, it was an acknowledgment of his title. It operated, in some respects, as a release by the tenant. If two tenants were jointly sued, a disclaimer by one of them generally vested the whole in the other co-tenant. So, if only one were sued, and disclaimed, whatever estate he had was, in effect, passed to and vested in the defendant. He might immediately enter, and would become seised according to the title set forth in his writ; and the tenant would be afterwards estopped from disputing that title. A disclaimer, instead of being a plea to the action, resembles so far a release or conveyance of the land, that, in general, no person

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