Scott v. Doughty

• Decision Date: 16 January 1919
• Citation: 97 S.E. 802
• Parties: SCOTT. v. DOUGHTY.
• Court: Virginia Supreme Court

97 S.E. 802

SCOTT.

v.DOUGHTY.

Supreme Court of Appeals of Virginia.

Jan. 16, 1919.

Error to Circuit Court, Northampton County.

Action by Willietta Doughty against Marion Scott. Judgment for plaintiff, and defendant brings error. Affirmed.

J. E. Heath, of Norfolk, for plaintiff in error.

John E. Nottingham, Jr., of Franktown, and Benj. T. Gunter, of Accomack, for defendant in error.

BURKS, J. This case has heretofore been twice before this court, and in each instance a new trial was awarded the plaintiff in error. Whealton v. Doughty, 112 Va. 649, 72 S. E. 112; Whealton & Wisherd v. Doughty, 116 Va. 566, 82 S. E. 94. The case is now here for the third time on a writ of error granted the plaintiff in error, and the defendant moves to dismiss under the provisions of section 3392 of the Code, declaring that—

"Not more than two new trials shall be granted to the same party in the same cause."

This question came before this court in Spriggs v. Jamerson, 115 Va. 250, 78 S. E. 571, under circumstances very similar to those arising in this case, and it was held that, as the judgment of the trial court had to be affirmed on its merits, it was unnecessary to decide the question. Judge Buchanan, delivering the opinion of the court, pointed out the different constructions which had been placed upon similar statutes in other states, and arrived at the conclusion that, as there is much diversity of opinion in other jurisdictions as to the proper interpretation of the statute, this court will not undertake to construe it until a case arises in which it is necessary. In addition to the reason given by Judge Buchanan, there is a further reason for not now passing upon the question. It will probably never arise again in this jurisdiction. In the Code of 1919, adopted by the last Legislature, the language of this section has been changed so as to obviate the difficulties presented by the present statute. Section 6260 of the Code of 1919, so far as it relates to this subject, is as follows:

"Not more than two new trials shall be granted to the same party in the same cause on theground that the verdict is contrary to the evidence, either by the trial court, or the appellate court, or both."

It is stated in the petition for the writ of error in this cause that the evidence was substantially the same in all three trials. In the opinion delivered by Judge Cardwell on the first writ of error, the case is stated as follows:

"Mrs. Willietta Doughty instituted this action of ejectment against J. H. Whealton and D. N. Wisherd, partners trading as Whealton & Wisherd, and lessees of Marion Scott, to recover the possession of certain marsh land described in the declaration. Upon the trial of the cause there was a verdict and judgment in favor of the plaintiff for the 187 1/2 acres of land sued for and $125 damages on account of its detention. To that judgment this writ of error was awarded.

"It appears that Marion Scott and defendant in error are the owners of adjoining farms in Northampton county, facing to the east on what is commonly known and designated as the 'Broadwater, ' which covers at high tide the marshes lying between the highland and the ocean, a distance of about 8 miles; that under a lease from Scott, dated February 27, 1907, plaintiffs in error entered upon the marsh lying to the east of the highland belonging to their lessor, for the purpose of planting and propagating oysters thereon; that through said marshes, of which the 187 1/3 acres in dispute here is a part, more remote from the highland deep channels run, one of which is referred to in the old deeds in evidence as 'the river running down the peninsular, ' or 'the river running along the seaside;' but near the highland a great number of drains, or, as locally designated, 'guts, ' run in irregular courses through the marshes; and that plaintiffs in error's lessor, Marion Scott, claims the disputed marsh as a part of his farm by reason of his riparian rights, while defendant in error asserts title to and possession thereof, not only by reason of her riparian rights, but by adversary possession, for the statutory period, under a claim of right thereto.

"Defendant in error claims title to her farm through a deed of partition made between her and her brother, James P. Fitchett, on August 27, 1891, the land partitioned being described as 'containing by estimate two hundred and fifty acres (250 a.), be the same, however, more or less, and bounded on the north by the lands of the heirs of Thomas E. Brickhouse; on the east by the Atlantic Ocean; on the south by the lands of the heirs of Edward T. Nottingham; and on the west by the lands of the heirs of John Walter Williams and James L. Nottingham, respectively.' And Marion Scott is the owner of the land formerly owned by the heirs of Edward T. Nottingham, referred to in said partition deed; his title thereto being undisputed in this case.

"The boundary line between the Scott farm and that of defendant in error, marked by trees and a ditch, runs from a county road in an easterly direction until it reaches the marsh land in dispute, lying in front and to the east of the farm of Scott and south of what would be a prolongation of the boundary line between the highland of his farm and that of defendant in error; and the disputed marsh land is bounded on the north by said prolongated line, on the east by the 'Broadwater, ' on the south by Magothy Bay, and on the west by that part of Scott's farm conceded to be his. Along the east boundary of Scott's highland separating it from the marsh is a 'gut' or channel which 'heads up' from Magothy Bay to or beyond the point at which the line which separates the highland of Scott and that of defendant in error reaches the 'gut, ' and along the line separating the highlands of the two farms there is a puncheon fence for a short distance extending to the water in the 'gut, ' put there some years ago for the purpose, it is claimed, so to inclose the marsh land as to keep off the stock of the adjoining landowner and to enable defendant in error to use and enjoy the marsh in question as a pasture for her own cattle. All of this marsh in dispute is covered with water at high tide, and it is not claimed that defendant in error's highland extends to the north of it; nor is there in the partition deed mentioned, or any other deed or paper writing in evidence under which she claims, a description of boundaries by which the 187 1/2 acres of disputed marsh could be located. If therefore the 'gut' or channel mentioned, which 'heads up' from Magothy Bay to or beyond the point at which the line dividing the highlands of Scott and the defendant in error, ebbs dry for an appreciable distance south of said division line, the marsh in dispute belongs to Scott by virtue of the statute of 1679, now section 1339, Code of 1904, unless he and those under whom he claims have lost the right thereto by an adversary possession thereof for the statutory period of limitation."

On each of the former writs of error the judgment of the trial court was reversed because of errors in the instructions given to the jury. On the former writs of error it was decided that Mrs. Doughty, the plaintiff below, did not have title to the marsh land in controversy by adverse possession, and that said land was not within the descriptive boundaries of her title papers, and the conclusion was deduced that if she had title it must be by virtue of her riparian rights under the statute law of the state. What those riparian rights were was not passed upon. The court adhered to the rule announced in Groner v. Foster, 94 Va. 650, 27 S. E. 493, that, in the absence of any direction in the statute to the contrary, the limits or boundaries of the highland at the high-water mark, when extended to low water, are to be extended "in the same direction." The former decisions also, in effect, held that the extended line stopped at the first low water encountered, although that be in a gut or drain making up from the ocean, provided such gut or drain did not ebb bare at ordinary low water; and, on the second hearing of the case, the court repeated and...