Norfolk v. Petitioner

• Decision Date: 25 March 1919
• Docket Number: No. 3546.,3546.
• Citation: 83 W.Va. 701
• Court: West Virginia Supreme Court
• Parties: Norfolk & Western Railway Company v. Christian et al.

83 W.Va. 701

Norfolk & Western Railway Company

v.Christian et al.

No. 3546.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 1919.

Decided March 25, 1919.

1. Ejectment Boundaries Instruction.

A peremptory instruction to the jury in an ejectment suit to find for plaintiff, and motion for a new trial, both predicated on the theory that the boundary line in question had been definitely and surely established by the surveyor with reference to natural land marks, marked lines and reputed boundaries, when the title papers call for no such marks, lines and boundaries, and the evidence of the defendant tends to discredit the existence and location of any such monuments, are rightfully refused and overruled by the trial court. (p. 705).

2. Deeds Calls General Description.

Where in the original survey of a right of way for a railroad, one of the calls is N. 70° 28' East 535.7 feet, this particular call in the deed is not overcome and shown to be a mistake by some general description in the deed and the measurement and survey thereof by a subsequent surveyor, when the general description is as consistent with the particular description in the deed as with the theory of mistake of such surveyor. (p. 705).

3. Ejectment Plea of Not Guilty Issues Disclaimer.

In ejectment the plea of not guilty puts in issue the right and title of the plaintiff to all the land sued. for, and if the defendant would limit the issue and avoid error in a general verdict, he should by disclaimer filed in due time disclaim all the land beyond the line or lines to which he claims, (p. 708).

4. New Trial As to Part of Issues.

In awarding a new trial because of error in such general verdict the court cannot limit the issue to a disclaimer to be filed unless justice demands it and such course can be pursued without confusion, inconvenience and prejudice to any other party to the action. (p. 708).

5. Evidence Expert Testimony Admissibility.

Opinion evidence of competent experts may be properly called for when the questions presented are of such a nature that persons generally would not be as competent to pass judgment thereon as such experts. (p. 709).

Error to Circuit Court, McDowell County.

Ejectment by the Norfolk & Western Railway Company against Sarah Christian and others. Verdict for defendants, motion for new trial overruled and plaintiff brings error.

Reversed, verdict set aside, new trial awarded.

Anderson, Strother, Hughes & Curd and Theodore W. Reath, for plaintiff in error.

Strother, Taylor & Taylor, for defendants in error.

Miller, President:

The railway company in November, 1908, sued defendant Christian and nineteen others in ejectment, in the circuit court of McDowell County, to recover so much of the land claimed by them as lay north of the southern line of the original right of way of the laeger and Southern Railway Company, to which plaintiff had succeeded in right and title, particularly that portion thereof conveyed to the said laeger and Southern Railway Company by Ellen and Preston Beavers by deed dated July 18, 1899. The description of said southern line and the end lines of said right of way as described in the declaration and the deed introduced in evidence is as follows: "Beginning at a point on the division line between the lands of J. G. Watts and said Ellen Beavers distant 40 feet from measured at right angles to the center line of the laeger and Southern Railway as now located and running thence parallel to and distant 40 feet from said center line as follows; By a line curving to the right with a radius of 756.3 feet for a distance of 22.2 feet, S. 50° 46' E. 196.2 feet thence curving to the left with a radius of 676.8 feet for a distance of 148.7 feet S. 63° 22' E. 774.9 feet thence curving to the left with a radius of 915.4 feet for a distance of 449.3 feet; thence still curving to the left with a radius of 1392.3 feet for a distance of 435, 3 feet, N. 70° 28' E. 535.7 feet; thence curving to the left with a radius of 597.3 feet for a distance of 134.1 feet, thence still curving' to the left with a radius of 915.4 feet for a distance of 236.0 feet; thence still curving to the left with a radius of 3779.8 feet for a distance of 274.4 feet to a point on the dividing line between the lands of said Ellen Beavers and J. E. Harman or A. D. Beavers, distant 40 feet from measured at light angles to said center line; thence along said division line S. 78° 30' W. 95 feet crossing said center line to another point distant 40 feet measured at right angles to said center line." The deed from Beavers and wife for additional description of said right of way referred to a map thereto attached to be taken and read as a part thereof.

There was a plea of "not guilty" as to most of the defendants, accompanied with a notice of claims for improvements made by them respectively on their respective portions of the land sued for, and motions to strike out said pleas made by plaintiff were overruled, and other motions were also made and ruled upon not necessary to be considered on the present hearing.

On the 23rd day of October, 1911, when the case was finally called for trial, the record shows that Christian and some twelve other defendants asked and were granted leave to file disclaimers to certain portions of the land sued for, and also to file claims for improvements. But no disclaimers appear to have been actually filed, and immediately following that part of the order allowing the filing of disclaimers it is recited that defendants again for plea say that they are not guilty of unlawfully withholding the premises in the plaintiff's declaration described, and of this they put themselves upon the country, and that the plaintiff did the like, and issue was thereupon joined, and thereupon a jury was empaneled and sworn to try the issue thus joined, and after hearing the evidence, the arguments of counsel and the instructions of the court their verdict was, "We the jury, upon the issue joined find for the defendant." And thereupon plaintiff moved the court to set aside the verdict, and for a new trial, based on several grounds, and the court took time to consider thereof, but owing to the request of counsel on both sides, the motion was not finally disposed of until February 20, 1917, when it was overruled, and the judgment was that plaintiff take nothing by its action and pay defendants their costs.

The deed from Ellen and Preston Beavers to the laeger and Southern Railway Company conveyed with covenants of general warranty, not merely a right of way but the entire estate and interest in the land granted, and the only issue involved was the true location of the southern line thereof as originally located and described in the deed of July 18, 1899, and the map attached thereto. Among the witnesses introduced and relied on by plaintiff to establish the location of this line were Wysor, assistant engineer, an C. S. Spurlockand C. A. Bailey, engineers, who assisted in surveying and locating the original center line of said Railway Company, and Wiltsee, engineer of the plaintiff company, who made a re-survey of the line for the purpose of this suit and also the part of the entire right of way adjoining the land in controversy. These witnesses located said southern boundary line of the original right of way by reference to the hub established by the engineers who ran out and established said center line, a black oak stump at the easterly end and an apple tree near the other end of the line, called for in the original field notes and proved by said Bailey and Spurlock. These monuments were not called for in the deed from Ellen and Preston Beavers nor in any of the title papers under which plaintiff claims, but were called for and referred to in the original field notes of the surveyors, which enabled these witnesses, they said, to locate definitely the true center line called for in said deed.

On the other hand the defendants introduced one Wygal, an engineer employed by E. S. Hood in 1903, to locate said original right of way and to lay out and plat for him with reference thereto certain adjoining lands into town lots, some of which were afterwards conveyed to some of the defendants and now involved in this suit. Wygal said the only data he had from which to locate the said center line was the old map filed in the clerk's office by the laeger and Southern Railway Company, a location stake marked with mineral keel, and the cuttings of the brush through the field and wood, indicating to him the course of the said center line of the right of way. Using this stake as indicating the location of the southern line and running with reference to the point of tangents and point of curves called for, he did the best he could to locate the center line; but on crossexamination he said the map called for no monuments or stakes, that he paid no attention to the profile drawings, a part of the map, and was unable to say positively that he had properly located the said center line, and he did not know that he could have located the line more certainly if he had data calling for timber along the line, and he did' not think the original field notes would have helped him to. locate the line with more...