Tompkins v. Petitioner

• Decision Date: 31 January 1869
• Citation: 3 W.Va. 148
• Court: West Virginia Supreme Court
• Parties: Beverly Tompkins v. "W. T. and 0. Vintroux.

3 W.Va. 148

Beverly Tompkins

v."W. T. and 0. Vintroux.

Supreme Court of Appeals of West Virginia.

January Term, 1869.

1. A call in a deed of partition is "thence to the back line of the survey such course as will throw 500 acres of said 1, 000 acre tract below said division line." The "back line" is SOS poles long and a straight line from the point given to the extreme or upper end of the "back line" will not include the amount of 500 acres on the lower side of the division line. Held:

1. That as natural objects and fixed lines control magnetic calls and distances it would seem that the call for the "back line" should control the quantity.

2. That in a court of law the party is bound by the terms of his deed, and the line from the given point to the "back line" must be a straight one, and in an action of trespass the plaintiff, who claims on the lower side of division line, cannot recover if the alleged trespass was committed on the upper side of a straight line from the given point to the extreme or upper end of the "back line."

3. That if the quantity called for be not embraced by the straight

line, the party can only obtain relief in a court of equity on a proper case made.

2. The action ot trespass quare clausam /regit cannot be revived in the name

of the personal representative of a deceased plaintiff.

3. Where the action survived to a joint plaintiff and the case was revived in

the name of a sole devisee of the deceased party by consent, no objection can be made thereafter by either of the parties consenting.

John Lewis and Samuel Lewis were the joint owners of a tract of 1, 000 acres of land in Kanawha county. By deed dated April 11th, 1849, they made partition of it according to the following boundaries:

"Beginning on the Kanawha river three poles above the mouth of Big'Scary creek; thence across the bottom to the base of the hill three poles above the creek, so as to make the line from the river to the hill extend three poles above the creek; thence from the base of the hill to the back line of the survey, such course as will throw five hundred acres of said tract of 1, 000 acres below said division line; and the said John is to have all lying above said line, and the said Samuel all lying below it."

Samuel conveyed his portion to Lewis E. and William T. Vintroux by deed dated February 7th, 1853. John conveyed his portion to William Tompkins by deed dated September 24th, 1852.

The vendees of Samuel brought suit in April, 1861, against Beverly Tompkins, the heir of William Tompkins, for an alleged trespass. The controversy arose about the location of the line in the above description which was to run from the "base of the hill" to the "back line of the 6urvey." For convenience of description the line "beginning on the Kanawha" and running to the "base of the hill" may be called the line A B, and the line to the back line of the survey, B C.

On the trial, which was had in June, 1866, it was proven that the trespass charged was in cutting timber, &c., on a portion of the land which, if the line B C was a straight one, would be on the land claimed by the defendant; also by the surveyor Thomas, that the back line was 508 poles long, and if the line B C was a straight one from B to even the upper or extreme end of the back line that there would not be 500 acres iu the portion claimed by the plaintiffs.

The defendant asked the court to instruct the jury as follows:

" 1. That the plaintiffs in this case, to entitle them to recover, must locate the partition line described in the partition deed between John and Samuel Lewis according to the calls of that deed, aud show by evidence that such location would embrace the land on which it is alleged the trespasses were committed.

2. That the location of the partition line aforesaid cannot be made by the calls of the deed of Samuel Lewis to the Viutrouxs in the absence of the patent tor the 1, 000 acres, and the deeds under which Jno. and S. Lewis claimed and held the land.

3. That all evidence offered by the plaintiffs to identify the partition line by the survey of Thomas, according to the deed of said Samuel Lewis, is improper, and ought not to be regarded by the jury as evidence to identify said partition line.

4. That the call of the partition deed to run from the river to the base of the hill three poles from Scarey, thence to the back line such course as will throw 500 acres below that line, should be understood as a straight line to the back line, which might be varied in course, but must go to some point on the back line which the quantity called for cannot control. If it cannot be run to the back line, and throw five hundred acres below, then the plaintiffs must correct the error by other proceedings than this suit."

The court gave No. 1 and refused the others; to which the defendant excepted.

While the suit was pending L. E. Vintroux died and the suit was revived in the name...