Point Mountain Coal & Lumber Co. v. Holly Lumber Co.
| Citation | 75 S.E. 197,71 W.Va. 21 |
| Parties | POINT MOUNTAIN COAL & LUMBER CO. v. HOLLY LUMBER CO. et al. |
| Decision Date | 10 June 1912 |
| Court | Supreme Court of West Virginia |
Submitted January 30, 1912.
Syllabus by the Court.
While the general rule is, that one who by mistake enters lands of another not covered by his title papers will be limited in his adversary possession to the land actually enclosed or of which he has had the pedis possessio; yet, if his title papers do cover the land entered, and the entry be with the purpose and intent of holding the same to the limits of the boundaries described in his deed or title papers, and as surveyed, and located on the ground by natural and fixed objects called for, he may by such entry and adversary possession and color of title, continued openly, notoriously and exclusively for the requisite period acquire title to all the land comprehended in his title papers, although such land may have been located and entered, by mistake as to the true location of original lines and corners called for in some prior or ancient patent, deed or title paper, by which he traces his title to the commonwealth.
One of the objects of the statute of limitations is to settle disputed boundaries, as well as disputed claims of ownership regardless of what the true boundary or better right may turn out to be.
Color of title, for the purposes of the statute of limitations as to land, is that which has the semblance or appearance of title, legal or equitable, but which in fact is no title.
The same kind of adversary possession which by pedis possessio will ripen into good title to land actually occupied and enclosed under a claim of title, will if under color of title give good title to the occupant to the limits of the boundary covered by his deed or title papers, the boundaries thus called for being in such cases equivalent to actual enclosure and occupancy under claim of title.
By section 19, chapter 90, Code 1906, adversary "possession of any part of the land in controversy under such patent deed or other writing, for which some other person has the better title" is "taken and held to extend to the boundaries embraced or included by such patent, deed or other writing unless the person having the better title shall have actual adverse possession of some part of the land embraced by such patent, deed or other writing"; and the fact that some stranger to the better title, not shown to have entered under or by authority or sufferance of the owner of the better title may have cropped or otherwise used and had enclosed by an indifferent fence or barrier a small portion of the disputed boundary, does not interrupt the operation of the statute of limitations in favor of one in possession of the residue of the disputed boundary, occupying and claiming the whole thereof by color of title, or render the possession of the latter less exclusive of the owner of such better title.
Recognition of title or attornment to another by the tenant of such adversary claimant, will not by section 4, chapter 93, Code 1906, interrupt the continuity of such claimant's possession, but will be void, "unless it be with the consent of the landlord of such tenant, or pursuant to, or in consequence of, the judgment, order, or decree of a court"; or such claimant otherwise have notice or knowledge of such recognition or attornment by his tenant.
If such tenant of an adverse claimant take a secret lease from a third person claiming to be the owner, without the knowledge of his landlord, the character of his possession will not be changed thereby.
Error to Circuit Court, Webster County.
Action by the Point Mountain Coal & Lumber Company against the Holly Lumber Company and others. From a judgment for defendants plaintiff brings error. Reversed, and new trial awarded.
Haymond & Fox and Linn & Byrne, for plaintiff in error.
Morton & Wooddell, J. S. Cogar, W. G. Bennett, Jake Fisher, and Hall Bros., for defendants in error.
In ejectment plaintiff claims lot No. 19, of 2,000 acres defendant lot No. 18, of 3,000 acres, of the Pennell chain of surveys, the latter laying immediately Northeast of the former.
One of the questions of fact presented was as to the true location of the original division line between these two lots. Plaintiff's contention was that this line began at a rock and two beeches, thence North 40 degrees West crossing Back Fork of Elk River at 212 poles, 455 poles to a chestnut. Defendant contended that the line began at a Cucumber, as called for in the original survey and patent, located 150 poles or more Southwest of the rock and two beeches, and thence according to the calls of the original patent North 40 degrees West, with proper variation, 455 poles to the chestnut called for. The land in controversy covers some 400 acres.
Though not admitting the correctness of the jury's finding, plaintiff concedes that it is probably bound by the verdict, on conflicting evidence, locating the original division line between these lots, as claimed by defendant. But on the question of title by adversary possession it makes no such concession. On the contrary it insists that by such adverse possession under color of title, it has acquired good and indefeasible title to the disputed boundary, entitling it as matter of law to a verdict and judgment; or, if not this, that it was entitled to have the question of fact of such adverse possession submitted to the jury, uninfluenced by and wholly apart from the question of the true location of the original boundary line between the two lots, and not as was done by defendants' instructions, and particularly by its instructions numbered 4 and 5, given on its behalf, confused therewith.
Originating with a decree of partition of lots numbered 12 and 19, made upon the report of commissioners in 1871, it is conceded that this decree and all subsequent deeds down to and including the immediate deed to plaintiff describe said lot No. 19, as beginning at a large rock and two beeches, and a corner to lot 18, and thence for the division line, North 40 degrees West crossing Back Fork of Elk River at 212 poles, 455 poles to a chestnut, and from thence calling for courses and distances and natural and fixed objects, to the beginning, and thereby definitely and conclusively locating plaintiff's land on the ground substantially as described in the declaration. The evidence, oral and documentary, leaves no room for controversy on this point. Furthermore, the uncontroverted evidence is, that plaintiff and its predecessors in title have persistently, since the decree of partition of 1871, claimed the land within the boundary fixed by that decree, and described in the subsequent deeds, including the disputed boundary, to the exclusion of all other claimants; that in August, 1895, Frederick S. Stevens and others, then owners of the 2,000 acres, known as lot No. 19, found one John McClanahan on the land claimed by them and within the boundary or interlock now in controversy; that on that day they sold and conveyed to him by metes and bounds a tract of twenty acres, more or less, in the Northeast corner of said tract, and within the boundary now in controversy; that on the same day they leased to him two small pieces of said land South of said Back Fork, and within the disputed boundary, one called the Corn lot, of about three acres, the other a triangular piece about the same size, all described as belonging to the Stevens tract, for the term of five years, the lessee covenanting and agreeing, in consideration of the premises, to keep a watch over the entire Stevens tract so called, to keep off trespassers, prevent cutting of timber, and make reports as to boundary lines, &c., to H. G. Thurmond, the lessor's local attorney. The record also shows that on October 4, 1897, McClanahan and wife, for the consideration recited, reconveyed to said Stevens, the land conveyed by the latter and others to him in 1895, reciting in the deed that at the time of the former conveyance it was supposed this tract conveyed contained about twenty acres, but that it had been found to contain some eighty acres, more or less. After this conveyance McClanahan, as he admits and swears, continued as before to reside on the land and to occupy it as the tenant of plaintiff and its predecessors and was so occupying it at the date of this suit, openly, notoriously, and exclusively, and reporting to the owners and their attorney to the exclusion of all other persons, unless it be a little patch of about a half acre, within the boundary in controversy, enclosed by a log or brush fence, and sometimes cultivated by one David McClanahan. Under whom or by whose authority or by what claim, if any, David McClanahan so occupied this land is not definitely shown.
Defendants controvert plaintiff's claim of title by adversary possession, on two grounds: First, that the calls in the decree of partition and subsequent deeds relied on, for a rock and two beeches, as the beginning corner, being mistaken for the cucumber called for in the original grant, and from thence, by like mistake, for the other boundaries, and together mistaken for the true boundary lines of said lot No 19, plaintiff was without color of title to any of the land in controversy; and that as the land actually enclosed and occupied by McClanahan for ten years prior to the suit, was not definitely located on the ground and described and shown to the jury, no recovery thereof could be predicated on mere claim of title, and that the general verdict for defendant is clearly right: Second, that conceding possession by John McClanahan, under plaintiffs, his possession within the disputed boundary was not exclusive, (a) because David McClanahan, who lived on a portion of defendants' land...
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