Mylius v. Raine-Andrew Lumber Co.
| Decision Date | 09 May 1911 |
| Parties | MYLIUS v. RAINE-ANDREW LUMBER CO. |
| Court | West Virginia Supreme Court |
Submitted March 4, 1910.
Syllabus by the Court.
In the trial of an action, involving title to land, dependent upon the location of boundary lines and application of the title papers to their subject-matter, it is not error to instruct the jury to give controlling influence to lines and corners marked upon the ground and identified, in so far as the lines were actually surveyed, and to courses and distances, in those instances in which the lines were not actually surveyed nor marked upon the ground.
It appearing that a large tract of land was subdivided into a number of lots and a plat thereof made, in accordance with which deeds were executed, and which is referred to in the deeds for the description of the lots, and that the exterior lines were only partially surveyed and only a few of the interior lines actually run, and there is inconsistency between the plat and some of the lines so surveyed, the court may properly instruct the jury that, in locating any lot, it is to be governed and controlled by the plat, except in so far as it is in conflict with the lines actually run and marked upon the ground.
Instructions to a jury must be broad enough in their scope and effect to present all material phases of the issue to which they relate. By whomsoever prepared, they are the instructions of the court, and, if they obviously tend to mislead the jury by reason of their narrowness, though correct as to one or more phases of the case developed by the evidence, it is error to give them.
On the trial of an issue as to which there is conflict in the evidence, the instructions, if any, must submit the conflicting theories the evidence tends to prove. Presentation of one of them and silence as to the other are tantamount to a comment on the weight of the evidence.
Instructions confined to a subsidiary and inconclusive issue, founded upon the evidence, and ignoring the direct and vital issue, tend to mislead the jury and cannot properly be given.
If a deed contain a general description of property, conforming to the manifest intention of the parties, as shown by the situation and circumstances surrounding them and the purpose they had in view, and also another description, clearly inconsistent with such circumstances and purpose, and false in that it applies wholly or partially to property not owned by the grantor, nor intended to be conveyed by him, but already owned by the grantee and not intended to be purchased by him, such latter description must be rejected as false and as having been inserted in the deed by accident or mistake.
The construction of a deed, not dependent in any way upon extrinsic evidence, and also of a deed dependent upon extrinsic evidence, when the facts are undisputed, is a question for the court and not for the jury.
The rule requiring a claimant under an inclusive grant to show that the land in controversy lies without the boundaries of the land excepted from the grant, as having been previously surveyed, as well as within the boundaries of the grant, has no application, if the grant has been subsequently forfeited for nonentry for taxation and sold in a judicial proceeding at the instance of a commissioner of forfeited and delinquent lands, as a whole, and without exception of any portion thereof, and it does not appear that the excepted lands were granted between the date of the inclusive grant and the date of the commissioner's deed.
By virtue of the provisions of section 19 of chapter 105 of the Code of 1906, a deed made, by a commissioner of forfeited and delinquent lands, under such judicial proceeding, constitutes a new grant by the state, passing to the grantee all right and title of the state to the land, whether held by reason of its never having been previously granted, or its subsequent acquisition by forfeiture or purchase.
Deeds made by commissioners of school lands, ineffectual to pass title to waste and unappropriated lands, for want of legislative authority to dispose of them in the manner in which forfeited lands were sold, are validated by section 19 of chapter 105 of the Code of 1906.
The opinion of a surveyor as to the true location of a boundary line is inadmissible as evidence.
If, in an action involving title to land, admissions and conduct of one of the parties, relating to locations and boundary lines are relied upon, it is not error to permit him to introduce an agreement with a third party, concerning the land, which tends to nullify the effect of such admissions and conduct.
Error to Circuit Court, Randolph County.
Action by Charles E. Mylius against the Raine-Andrew Lumber Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Fred O Blue, C. H. Scott, and Harding & Harding, for plaintiff in error.
W. B. Maxwell and D. H. Hill Arnold, for defendant in error.
Charles E. Mylius recovered a judgment against the Raine-Andrew Lumber Company, a corporation, for $8,000, in an action of trespass quare clausum fregit, in the circuit court of Randolph county, which has been brought here for review on a writ of error.
The declaration charges the cutting and carrying away of a large amount of timber, and the defense is want of title in the plaintiff to the land on which the timber grew. The question for determination, therefore, is as completely one of title as if this were an action of ejectment. A large tract of land, 19,000 acres, was granted by the commonwealth of Virginia to Henry Phillips September 22, 1795. Having become forfeited for nonentry for taxation, prior to the year 1840, it was sold, as forfeited land, under judicial proceedings regularly had, so far as the record shows; but, before sale, it was divided, by the commissioner of forfeited and delinquent lands, into 23 lots, numbered from 1 to 23, respectively. In making this division, the commissioner actually ran some of the lines, but others were not run, and some lots were entirely, and others partially, platted on paper, without actual survey, and all were sold according to the plat. L. D. Morrall became the purchaser of lots Nos. 11, 12, 14, 15, 22, and 23, containing, respectively, 800, 1,000, 500, 800, 540 and 921 acres and John Wyatt purchased, among others, lot No. 13, and these sales were confirmed and deeds made, referring to the plat. Lots Nos. 11 and 15 passed to Baker Bros. by successive conveyances prior to 1879. E. D. Parren, prior to 1875, became the owner of lots Nos. 14 and 22. The title to these last two lots was forfeited and sold, under judicial proceedings, on March 27, 1876, one Isaac Baker becoming the purchaser of lot No. 14, and T. J. Arnold of 348 acres, part of lot No. 22, adjoining lot No. 14. The Bakers, having become owners of lots Nos. 11, 14, and 15 prior to August, 1879, conveyed the same to Charles E. Mylius and others. Afterwards, Kupfer and Farnsworth became interested in these lands. Mylius, by a partition deed dated March 1, 1891, conveyed to Kupfer 743 acres out of the northern ends of lots Nos. 14 and 15; the southern line of this conveyance extending east and west across the same, and he having previously conveyed to Kupfer an undivided one-fourth of lots Nos. 11, 14, 15, and 20. He, Farnsworth, and Mylius, by deed dated June 1, 1893, partitioned the same, and Farnsworth thereby became sole owner of 495 acres, cut off of the southern end of lot No. 11, and Mylius and Kupfer owners of the residue of lot No. 11 and the whole of lots Nos. 14 and 15. In connection with the conveyance from Mylius to Kupfer, a plat was made, known as the "Sherwood plat," which was referred to in the deed and also in the partition deed above mentioned. The western part of lot No. 13, adjoining lot No. 14, became the property of the defendant, the Raine-Andrew Lumber Company, by a deed from Jennings Bros., dated May 22, 1901; they having obtained it by deed from Jacob Carr and others, dated June 26, 1900. Kupfer conveyed to the defendant all the 743 acres except a small parcel thereof at the northwest corner, by deed dated April 27, 1901, and Mylius conveyed to it 160 acres, adjoining the Kupfer land and also the Jennings-Carr lands, by deed dated October 29, 1901. This land came out of lots Nos. 14 and 15, and probably No. 11, as shown by the Goff plat, and lies on the east side of what is called "Glady Fork." The defendant cut and removed timber from a part of lot No. 14, which, it is charged, was not included in any conveyance to it.
The plaintiff brought two actions, one on the 27th day of May 1903, in which he laid his damages at $3,000, and the other on the 24th day of June, 1905, in which he laid the damages at $10,000. As these two actions involve the same timber, and the second covered the subject-matter of the first, they were consolidated and tried as one, and the controversy is whether the timber cut was within the boundaries of the lands retained by Mylius, and this turns partly upon a dispute as to the location of lot No. 14; all the timber in controversy having been taken from 172.5 acres of land, lying within its boundaries as platted by Goff, Commissioner, and partly upon the location of the land conveyed to the defendant by Jennings Bros. and Mylius, respectively. The corner called for in the deeds made by David Goff, who made or caused the original plat to be made, according to which they were executed, designated, as the common corner of lots Nos. 11, 12, 14, and 15, a maple. While no maple is found on the ground, the defendant claims the one referred to in the plat and deeds stood at a point near the middle of lot No. 11, as it is located by the courses and distances specified in the Goff...
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