Somon v. Murphy Fabrication & Erection Co.

• Decision Date: 01 March 1977
• Docket Number: No. 13648,13648
• Citation: 160 W.Va. 84,232 S.E.2d 524
• Court: West Virginia Supreme Court
• Parties: John SOMON v. MURPHY FABRICATION & ERECTION CO.

Page 524

232 S.E.2d 524

160 W.Va. 84

John SOMON v. MURPHY FABRICATION & ERECTION CO.

No. 13648.

Supreme Court of Appeals of West Virginia.

March 1, 1977.

Syllabus by the Court

1. In ascertaining a disputed boundary the calls in the respective deeds cannot be disregarded, if they can be applied and harmonized in any reasonable manner.

2. In boundary line disputes great weight is attached to natural monuments that are embodied in deed calls and they are generally given superiority over such calls in the event of a conflict.

3. One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following

elements for the requisite statutory period: (1) That he has held the tract adversely or hostilely; (2) That the possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible and notorious); (4) That possession has been exclusive; (5) That possession has been continuous; (6) That possession has been under claim of title or color of title.

4. Where one by mistake occupies land up to a line beyond his actual boundary, believing it to be the true line, such belief will not defeat his right to claim that he holds such land adversely or hostilely under the doctrine of adverse possession.

Charles D. Bell, Wellsburg, for appellant.

Pinsky, Barnes, Watson, Cuomo & Hinerman, William E. Watson, Wellsburg, for appellee.

MILLER, Justice:

This case involves a disputed boundary line which encompasses an area of roughly 80 by 500 feet and draws us into the doctrine of adverse possession. The lower court held that the plaintiff, Somon, held the disputed area within the confines of his deed and if he did not, he obtained title to it by adverse possession, and if not by adverse possession then by acquiescence. While we disagree with the first and third findings, we do agree that the trial court was correct on the theory of adverse possession.

This case arose in 1974 after the defendant, Murphy Fabrication and Erection Company (Murphy), tore down a portion of an old fence in order to run a sewer line from a trailer court it had under construction to a stream called Painters Run. Somon filed suit in the Circuit Court of Brooke County to establish his boundary line. He claimed ownership of the land from Painters Run to the fence by virtue of his deed and, if not by deed, then under adverse possession or the doctrine of acquiescence.

A preliminary injunction was requested and disposed of by an agreed order. Two hearings were held before the court, without a jury, with the trial court finding in favor of Somon on all three theories. ¹

Turning to the initial holding of the court, that the disputed area was within Somon's deed, both tracts of land go back to a common owner, Jacob. The defendant Murphy's tract of approximately 10 acres originally was conveyed by Jacob to Mozingo in 1930 and thence by mesne conveyance to Murphy. The calls in this chain of title along the disputed area remain constant. In the deed from Jacob to Somon in 1953, which conveyed the balance of the tract of approximately 207 acres, the same calls are found in the critical area. Thus, in the Somon deed we find the three calls as:

'. . . thence S. 47 48 W. 275 feet; thence thence (sic) S. 72 48 W. 217 feet to a stake; thence across Painter (sic) Run N. 31 12 W. 783.75 feet. . . .'

In the deed to Murphy they are expressed as follows:

'. . . thence with the Hillside, south of Painters Run, S. 47 48 00 W. 273.0 feet and south 72 48 00 W. 217.00 feet; thence leaving said hillside and crossing Painters Run, N. 31 12 00 W. 683.75 feet to a point in a fence line; . . .'

The trial court apparently failed to attach any significance to these common calls and the fact that they cross Painters Run on the same line (N. 31 12 W.), which would serve to establish the common boundary line south of Painters Run. Instead it relied upon the testimony of Somon's surveyor, who had made only one measurement on the ground. This was the line immediately preceding the first common call of S. 47 48 W. 275 feet. The preceding call, which the surveyor measured, was almost at right angles to it, being N. 15 45 W. 1211.10 feet. The trial court was impressed with the fact that this on-the-ground measurement ended at a point within three feet of the old fence line, which Somon claimed was the correct boundary line. This fence line was approximately 82 feet north of Painters Run and ran parallel to it across the disputed area.

Somon's surveyor testified that his on-the-ground measurement involved using a 100-foot steel tape which, because of the terrain, could only be extended to 30 feet. The surveyor had started his measurement on a road, but was ambiguous as to how this beginning point was located as it was not the beginning point in the deed nor was there any natural or artificial monument that located that point. From the road the line ran downhill through a wooded area which eventually ended at a cliff, where he shifted from what was described as level measurement into a vertical angle and distance measurement. His measurement ended at a location 85 feet north of Painters Run.

The surveyor conceded that at this point if the next calls in Somon's deed were followed, the line would not go back across or south of the run, nor would the calls follow the fence line. It is apparent from his measurement that there would be no way to reconcile the language in Somon's deed, nor to obtain a crossing of Painters Run on the third call of N. 31 12 W.

We believe the factual situation presented here is different from most, if not all, of the boundary line cases that have come before this Court. In the cases we have reviewed, the respective deeds to the disputed area did not contain the same calls and distances. Here, on the other hand, except for the two-foot difference in distance manifested between the two calls of S. 47 48 E., which we do not regard as being significant, the two lines are in common.

It is a generally recognized principle in boundary line disputes that the court must attempt to harmonize the calls contained in the respective deeds, if at all possible. In Gauley Coal Land Company v. O'Dell, 144 W.Va. 730, 736, 110 S.E.2d 833, 837 (1959), this rule was expressed as follows:

'Calls, if they can be applied and harmonized in any reasonable manner in determining boundaries of a tract of land cannot be disregarded and as few calls or descriptions should be disregarded as is possible. 8 Am.Jur., Boundaries, § 52; Lewis v. Yates, 72 W.Va. 841, 79 S.E. 831.'

Here not only were the calls in the two deeds in harmony in the disputed area, but both deeds gave the same call for crossing Painters Run from a line that was south of it.

In addition to the similarity of calls in the disputed area, there also existed in both deeds a reference to the same established monument, Painters Run. The testimony before the trial court was undisputed that during the period the parties held their respective properties and for a considerable time prior thereto, Painters Run had always been in the same location. A further rule of construction in boundary disputes is that great weight is to be attached to natural monuments that are embodied in deed calls and such natural monuments are given superiority over the calls in the event of a conflict. Vandetta v. Yanero, W.Va., 200 S.E.2d 674 (1973); Blain v. Woods, 145 W.Va. 297, 115 S.E.2d 88 (1960); Matheny v. Allen, 63 W.Va. 443, 60 S.E. 407 (1908).

Thus, we have a concurrence of the calls in the two deeds along the disputed area, coupled with a parallel crossing on the same line of Painters Run, all of which serve to establish the common boundary as being south of Painters Run and not north as found by the trial court. We, therefore, conclude that the trial court erred in establishing Somon's line north of Painters Run at the fence line by the deed calls.

The trial court also held that, even though it might be in error in establishing the actual boundary line as the fence line Somon owned the disputed area by virtue of the doctrine of adverse possession.

To state that the doctrine of adverse possession is firmly established in our law is a mere truism and, yet, when one attempts an orderly assessment of the doctrine through the cases, it is at best an arduous task. It can be said that the doctrine is founded upon the legislative desire to settle land titles and is made manifest by the statute of limitations which bars the right to recover real property. Porter v. Staley, 99 W.Va. 91, 127 S.E. 911 (1925); Riffle v. Skinner, 67 W.Va. 75, 67 S.E. 1075 (1910); 3 Am.Jur.2d Adverse Possession § 2; 2 C.J.S. Adverse Possession § 2; 1A Michie's Jur. Adverse Possession § 2. ² Thus, the period for holding property under the doctrine is co-equal to the statute of limitations barring suits for recovery of real property which at the present time is ten years. W.Va.Code, 55--22--1.

This Court has spoken on a number of occasions on the doctrine of adverse possession, and while there is some semantic difference in the wording of the doctrine, we believe that the elements of the doctrine can be fairly stated as follows.

One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period: ³ (1) That he has held the tract adversely or hostilely; (2) That the possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible and notorious); (4) That possession has been exclusive; (5) That possession has been continuous; (6) That possession has been under claim of title or color of title. ⁴ Bitonti v. Kauffeld Co., 94 W.Va. 75i, 120 S.E. 908 (1923); Wilson v. Braden, 56 W.Va. 372, 49 S.E. 409 (1904); Heavner v. Morgan, 41 W.Va. 428, 23 S.E. 874 (1895); Core v. Faupel, 24 W.Va. 238 (1884).

While no useful purpose could be...