Tolley et al. v. Pease ei al,

• Decision Date: 23 April 1913
• Citation: 72 W.Va. 321
• Parties: Tolley et al. v. Pease ei al,
• Court: West Virginia Supreme Court

72 W.Va. 321

Tolley et al.

v.Pease ei al,

Supreme Court of Appeals of West Virginia.

Submitted January 23, 1912.

Decided April 23, 1913.

1. Boundaries Establishment Judgment Disclaimer.

Where in ejectment the issue is the location of the true division line between the parties, and defendant enters a disclaimer of all beyond a fixed line designated on the map of the official surveyor, upon a verdict simply for defendant the court may properly enter judgment establishing as the true division the line beyond which defendant disclaimed. (p. 322).

2. Same Establishment Following Courses and Distances.

Though in ejectment parol evidence is sometimes admissible to prove marked trees which are not in the courses or termini of lines to be the true lines intended, yet where the deed plainly calls for the lines by courses and distances, and distinctly for stakes, not marked trees, as the termini thereof, and there is no such approximation thereto in the courses or the lengths of the lines sought to be established by marked trees as to war rant any presumption that they are boundaries of the land, the jury may properly be instructed to disregard the marked trees and to follow the courses and distances called for in the deed. (P. 323).

Error to Circuit Court, Raleigh County. Action by C. W. Tolley and others against William Pease and others. Judgment for defendants, and plaintiffs bring error.

Affirmed.

J. E. Summerfield, and E. 0. Phlegar, for plaintiffs in error. McCreery & Patterson, for defendants in error.

Robinson, Judge:

The action is ejectment. Plaintiffs failed, and bring error.

The issue at the trial was reduced to a narrow one, defendants having disclaimed all beyond a line M. to E. on the official surveyor's map. So the issue was whether that line was the true division line between the parties, or whether it was another line parallel thereto as claimed by plaintiffs.

According to the deed on which plaintiffs relied this division line was not governed in its location by natural landmarks or monuments directly on it, but must be located solely by various courses and distances calling for stakes, and running from natural objects in distant parts of the survey of plaintiffs' tract, except that one end of the line should conform to the line of an adjoinder. Plaintiffs, however, sought to have certain marked trees recognized as controlling the boundaries, though the deed called for no such monuments, but only for stakes, in relation to the lines which plaintiffs claimed should be located by marked trees. In order to reach the marked trees several courses and distances set forth in the deed must be materially changed, thereby giving plaintiffs a much more extended boundary of land than a survey according to usual methods and rules would give them.

The testimony of the official surveyor, as well as that of two other surveyors who located the line by survey, establishes that the line M. to E is the boundary line of plaintiffs' land according to proper survey from the calls of plaintiffs' deed. As to this there is indeed no contradiction.

The jury found a verdict simply for defendants, but in view of the disclaimer, that verdict virtually said that the line M. to E. was the true division line. The judgment entered on the verdict, recognizing that line as the true one between the parties is not erroneous, as plaintiffs insist, because the verdict did not designate the line directly. As we have said, in the light of the disclaimer entered of record the effect of the finding of the jury was to establish that line.

An instruction told the jury that plaintiffs were bound by the calls in the deed on which they relied and that in arriving at the true boundary line between plaintiffs and defendants the jury must be governed by the calls in the deed, and that plaintiffs could not change the calls in the deed to show that those calls meant something other than what was set forth in the deed, but in running the calls and lines the rules for the proper surveying of the land must be adhered to. Plaintiffs say that this instruction took from the jury all consideration of marked trees by which plaintiffs would locate the calls mentioned in the deed. They maintain that marked trees may so influence the location of lines called for in a deed as in a sense to change them from what is set forth therein. That this is sometimes true can not be denied. Under evidence properly tending to connect marked trees with the survey from which the deed was made, the instruction would be erroneous. "When a deed mentions the course and distance of a line, without any other description thereof, parol evidence is admissible to prove marked trees, not in the course or termination of that line, to be the true line intended." Baker v. Seekright, 1 Hen. & M. 177. "To pursue the proper descriptions of our land boundaries would render men's titles very precarious, not only from variations of the compass, but that old surveys were often inaccurate; and...