Ulman v. Clark

• Decision Date: 31 March 1900
• Citation: 100 F. 180
• Parties: ULMAN et al. v. CLARK et al.
• Court: U.S. Court of Appeals — Fourth Circuit

100 F. 180

ULMAN et al. v. CLARK et al.

United States Circuit Court, D. West Virginia.

March 31, 1900

[Copyrighted Material Omitted]

Okey Johnson, Flournoy, Price & Smith, and Mollohan & McClintic for plaintiffs.

Brown Jackson & Knight, E. W. Clark, Jr., and A. W. Reynolds, for defendants.

JACKSON District Judge.

This cause having been tried at a former term of this court before a jury, a verdict was returned for the plaintiffs, finding for them a certain portion of the 150,000 acres of land, which is supposed to be about one-half of the amount demanded in the declaration of the plaintiffs. Upon the return of the verdict, and before any judgment was entered thereon, a motion for a new trial was made by the plaintiffs, and to set aside the verdict, upon two grounds: '(1) Because the finding of the jury in locating the fifth line of the survey from D to R, as laid down on the trial map, and not from D to E, was contrary to the law and evidence, and contrary to the court's instructions. (2) Because the court erred in admitting the reports of Surveyors Lybrook and Vawter.'

The first reason assigned for setting aside the verdict involves two questions: (a) Whether the finding of the jury was contrary to the law as given to them in the instructions of the court; (b) whether the verdict of the jury was contrary to the weight of the evidence.

I will consider first the ground assigned in support of the motion, that the verdict was contrary to the evidence. It is a well-settled principle of law that, where a jury returns a verdict that is clearly against the weight of the evidence, it is the duty of the court to set the verdict aside and award a new trail. It is equally well settled that the verdict will not be set aside, as being contrary to the evidence, where there is a slight preponderance of evidence against the verdict. When the conclusions of a jury are founded on insufficient evidence, or contrary to the instructions of the court, or arrived at by compromise or lot, these are always grounds for setting aside the verdict. These are well-settled principles of law, and it is not necessary to cite authorities to sustain this position. Upon a motion for a new trial the court is to weigh the evidence, where it is conflicting, and if, in its judgment, it is manifest that the weight of the evidence is against the verdict as returned by the jury, its plain duty is to set it aside. While it is conceded that it is the province of the jury to find the facts, it is nevertheless the duty of the trial judge to see that the action of the jury is intelligent and just in the exercise of this function. This is a judicial discretion with which every court is invested, and which gives the trial judge a salutary supervision over the verdict of a jury; but it is a discretion which should not be abused, and should only be exercised to further the ends of justice. Adopting the principles of law as announced, for my guide, I will proceed to discuss the evidence, which is somewhat conflicting, upon the vital question of the location of the survey upon which the jury returned its verdict.

It is to be observed that the survey made in this case bears date in 1794, and the grant was issued upon it the 20th of March, 1795. The survey was made when the country in which the land lies was a dense wilderness, and at a time when it was not actually inhabited either by the white men or Indians, but when it was subjected to the incursions and depredations of the Indians who occupied, and had nearly the supreme control of, the country adjacent to the lands involved in this controversy. This is not only an historical fact, but there is evidence in this cause tending to show that such was the condition of the country at the time Taylor made his original survey filed in this case. I allude to this merely to show the difficulties which surrounded the surveyor when he made this survey. There is evidence in this cause of a tradition that existed in this country that tends to show that while Taylor, the surveyor, was surveying the lands in controversy, he was unable to complete his survey for the reason that he was driven off by the Indians when he was running the sixth line of the survey.

The beginning corner of this survey, as well as the second, third, and fourth corners, are conceded to be located where the plaintiffs claim them. On the trial map in this cause the beginning corner is at A, the next corner at B, the next at B, B, and the next at C. There is no dispute as to these corners. The first contention that arises as to the location of this survey is as to the true location of the fifth corner. It is claimed by the plaintiffs to be at D on the trial map, while the defendants claim it to be at V. The jury, in their verdict, found that the fourth line of the survey, which calls to run N., 10 degrees E., 2,960 poles, crossing the North Fork of Tug river, the dividing ridge between the same and the Elkhorn Fork of Tug river, and the said fork to three white oaks and a poplar in a bottom on the northeast side of the same, terminated at the point D, and fixed that point as the fifth corner of the survey. This finding of the jury establishes the fact that the corner claimed by the plaintiffs called for in the fourth line of the survey is located at D on the trial map. The fifth line of the survey calls for 'running N., 10 degrees W., 880 poles, running down Elkhorn Fork to the mouth of the North Fork to a poplar and maple at the same, corner to a survey of five hundred thousand acres of Wilson C. Nicholas, and with lines thereof. ' This line is claimed by the plaintiffs to run from the point D, where the three white oaks and poplar are called for by Surveyor Taylor at the end of the fourth line of his survey, to the point E, where a poplar and maple are called for by Taylor in his survey. It is claimed by the plaintiffs that the jury disregarded this call of Surveyor Taylor, and instead of running the course and distance called for, beginning at the point D, as designated on the trial map, and running to the point E, they made and adopted an arbitrary line from the point D to R, on the map, which does not correspond with either the course or distance as called for in the fifth line of the survey, and that, instead of locating the sixth corner at the point E, the jury located it at the point R, where, also, it is claimed a maple and poplar stood. If the contention of the plaintiffs is true, that the end of the fifth line is at the point E, and not at the point R, then the theory of the defense fails. The motion for a new trial greatly depends upon the true location of the fifth line of Taylor's survey. What then is the true line? Is it the line D, E, or is it the line D, R? The answer to this question involves an examination and analysis of the evidence in this case. I will first take up the evidence of the plaintiffs, which tends to establish that the fifth line of Taylor's survey, as originally made and laid down, is correctly represented by the line D, E, as shown on the surveyor's map in this case, and not by the line D, R; and afterwards I will take up the evidence of the defendants, which tends to show that the fifth line should be run from D to R, and compare the evidence to determine whether the verdict of the jury, as returned in this cause, is sustained by the weight of evidence, or whether the weight of evidence is against the verdict of the jury. This is a vital question. But, before I proceed to discuss the weight of the evidence, I will briefly consider the rule of law sanctioned by the courts in ascertaining and locating the boundaries of land.

In locating lands the general rules are: Resort is first had to natural boundaries, next to artificial marks, then to adjacent boundaries and last to course and distance. To these rules, however, there are exceptions, so that neither rule is inflexible; but, when it is apparent that a mistake has been made, an inferior means of location may control a higher one. Fulwood v. Graham, 1 Rich.Law, 491. In the case we have before us there are no concerns called for, as distinguished from marked corners, unless it is in the fifth line of the survey, which calls to run down Elkhorn to the mouth of the North Fork, to a maple and poplar. But it is to be observed that the call for 'running down Elkhorn Fork to the mouth of the North Fork, to a maple and poplar,' is not a call for the North Fork as a corner, but it is a call for a poplar and maple as a corner,-- not at the mouth of the North Fork, but to be found by the course and distance called for by running down the Elkhorn Fork. The poplar and maple is the corner called for, and, if found and marked as a corner to correspond with the survey, must be adopted as the corner, wherever found; and if, by following the course and distance called for, the line runs elsewhere than to the mouth of the North Fork as it exists today, then the line of the survey should be made from D to E, as called for in the fifth line of the survey, if the corner is found at that point, and so much of the call as calls for the mouth of the North Fork would be regarded as descriptive of the location where the other corner trees stood, and the jury in its finding should have disregarded the call for the mouth of the North Fork, as a mistake of Surveyor Taylor in his description, and as being inconsistent with the call for the corner of the maple and poplar, if found at the point E; and, under a well-known and familiar rule, that which is most certain and most reliable to locate the corner of the survey must be adopted, and that which is less certain must be rejected. But it is claimed that a maple and poplar were found at R, at the point now called the mouth of the North Fork, and the...