Westover Volunteer Fire Dept. v. Barker, 10805

• Citation: 142 W.Va. 404,95 S.E.2d 807
• Decision Date: 05 March 1957
• Docket Number: No. 10805,10805
• Court: West Virginia Supreme Court
• Parties: WESTOVER VOLUNTEER FIRE DEPARTMENT, Inc. v. Raymond W. BARKER.

Page 807

95 S.E.2d 807

142 W.Va. 404

WESTOVER VOLUNTEER FIRE DEPARTMENT, Inc. v. Raymond W. BARKER.

No. 10805.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 18, 1956.

Decided Dec. 22, 1956.

Rehearing Denied March 5, 1957.

Syllabus by the Court.

1. In a proceeding instituted under Code, 1931, Chapter 55, Article 4, as amended by Section 31, Article 4, Chapter 1, Acts of the Legislature, Regular Session, 1945, by adding thereto a new section to be designated as 'section thirty-one', pertaining to the ascertainment and designation of boundary lines between coterminus landowners, which has been instituted to establish a disputed boundary line, it is reversible error for the Judge of the trial court, acting in lieu of a jury, who has taken a view of the property of the coterminus owners, whose boundary line is in dispute in the proceeding, to enter a judgment establishing the true boundary line based solely on such view.

2. 'Calls in a deed for an adjoining tract of land are calls for a monument, and where the location of such adjoining tract of land is certain it becomes a monument of the highest dignity.' Pt. 4, Syl., Vandall et al. v. Casto et al., 81 W.Va. 76 .

3. 'A deed is to be interpreted and construed as of its date, and a call in the descriptive portion thereof for the land of another, as a monument, is a call for the true location of such land at the date of the deed.' Pt. 5, Syl., Yonker v. Grimm, 101 W.Va. 711 .

4. 'A call of a deed to the line of adjoiner in no case can make interlock between the land conveyed thereby and the line of the adjoiner, and a dispute between conflicting claims as to true lines and corners does not of itself constitute an interlock.' West Virginia Pulp & Paper Co. v. J. Natwick & Co. et al., Pt. 4, Syl., 123 W.Va. 753 .

5. Where in a proceeding under Code, 1931, Chapter 55, Article 4, as amended by Section 31, Article 4, Chapter 1, Acts of the Legislature, Regular Session, 1945, by adding thereto a new section to be designated as 'section thirty-one', to establish a disputed boundary line between coterminus owners, the record discloses that the coterminus owners, whose boundary line is in dispute, obtained their properties from a common source, and the lines of the junior grant run to the corners and lines of the senior grant, such lines of the senior grant are monumental lines.

6. In a proceeding instituted under Code, 1931, Chapter 55, Article 4, as amended by Section 31, Article 4, Chapter 1, Acts of the Legislature, Regular Session, 1945, by adding thereto a new section to be designated as 'section thirty-one', the petitioner has the burden of establishing by a preponderance of the evidence the boundary for which he contends.

7. In a statutory proceeding, instituted for the purpose of establishing a disputed boundary line, under Code, 1931, Chapter 55, Article 4, as amended by Section 31, Article 4, Chapter 1, Acts of the Legislature, Regular Session, 1945, by adding thereto a new section to be designated as 'section thirty-one', the party who for the statutory period has been in possession of the intervening acreage between the line contended for by the petitioner in such proceeding and that contended for by the defendant therein, may invoke adverse possession.

8. Occasional and sporadic acts of dominion tending to show possession of land, which are not continuous for the statutory period, do not constitute adverse possession as is contemplated by law.

9. 'When on the trial of an action the evidence decidedly preponderates against the verdict of the jury or the finding of the trial court thereon, this court will on writ of error reverse the judgment, and if the case was one tried by the court in lieu of a jury, will make such finding and enter such judgment on the evidence as the lower court should have done.' Syl., McKown v. Citizens State Bank of Ripley, 91 W.Va. 716 .

Ezra E. Hamstead, Morgantown, Tusca Morris, Fairmont, for plaintiff in error.

Minter L. Wilson, Oakley J. Hopkins, Glenn Hunter, Morgantown, for defendant in error.

RILEY, Judge.

This is a proceeding tried before the Judge of the Circuit Court of Monongalia County, acting in lieu of a jury, instituted under Code, 1931, Chapter 55, Article 4, as amended by Section 31, Article 4, Chapter 1, Acts of the Legislature, Regular Session, 1945, by adding thereto a new section to be designated as 'section thirty-one', pertaining to the ascertainment and designation of boundary lines between coterminus landowners, to establish a line between the coterminus holdings of the petitioner therein, Westover Volunteer Fire Department, Inc., a corporation, and Raymond W. Barker, the defendant.

The Judge of the Circuit Court of Monongalia County, as disclosed from his written opinion, made a part of the record, on his own volition viewed the premises in controversy, evidently without the consent of the parties litigant, or their attorneys, and, as disclosed by his memorandum, dated July 25, 1955, decided the case in favor of the petitioner, Westover Volunteer Fire Department, and against the defendant, Raymond W. Barker, solely upon his view, thus establishing the line between the land claimed by petitioner and that claimed by the defendant by ordering that the true boundary line between the two properties began 'at a hub in the northerly edge of Holland Avenue; thence North 6~ 27' East 253.20 feet to a hub; thence North 83~ 33' West 162.80 feet to a hub in the eastern edge of Lane Street, as shown on plaintiff's Exhibit No. 2 filed with said plaintiff's petition.' (Italics supplied.)

At this point we note that there is no statutory authority for a trial judge, trying a case in lieu of a jury, to take a view. Code, 56-6-17, provides, in cases tried with a jury, as follows: 'The jury may, in any case, at the request of either party, be taken to view the premises or place in question, or any property, matter or thing relating to the controversy between the parties, when it shall appear to the court that such view is necessary to a just decision, and in such case the judge presiding at the trial may go with the jury and control the proceedings; and in a felony case the judge and the clerk shall go with the jury and the judge shall control the proceedings, and the accused shall likewise be taken with the jury or, if under recognizance, shall attend the view and his recognizance shall be construed to require such attendance. * * *'

Though the final order adjudicating the boundary line entered by the trial judge on July 25, 1955, reads: 'And the Court now being fully advised of its judgment, and having duly considered all the evidence presented in this cause, all papers filed and proceedings had herein,' the opinion of the trial Judge discloses that he did not, in fact, and in this regard this Court will take the statements made in the trial Judge's opinion as true, consider the record, and, in particular, the testimony of C. W. McCutcheon, a qualified engineer, who testified on behalf of the petitioner without making a survey of the premises and lines in controversy, but on the basis of platting certain descriptions of the land, contained in the various deeds in evidence, and the testimony of defendant's witness, Marion F. Dunbar, a registered engineer, who was the only qualified witness who made a complete survey of the property, examined the deeds in evidence, and testified in contradiction to McCutcheon's testimony. Only a few quotations from the opinion of the trial judge convince this Court that the result reached by the trial court was solely on the basis of his view of the premises. This opinion states inter alia that:

'If in ascertaining the boundary here in dispute it were necessary to apply these general legal principles this would become a very close and difficult legal question. Fortunately a correct result can be arrived at here without the necessity of interpreting the multitude of decisions involving boundaries.

* * *

* * *

'A view of the premises also indicates rather clearly how the common grantor, L. V. Keck, come to make the original error in his conveyances, back about the turn of the century, out of which this controversy arises. It is clear that in viewing his tract of ground as a whole he believed that it was rectangular in shape, with the exception of the slight curve in Holland Avenue, upon which it fronted. His conveyances, without benefit of survey, were made upon that erroneous assumption. No other conceivable theory could explain the overlap which resulted, particularly since Mr. Keck was at the time quite experienced in preparing conveyances of land.'

In addition, as appears from the fourth paragraph of the trial Judge's opinion, the Judge in this statutory proceeding, which was on the law side of the court, in which the balance of equities has no application, undertook to balance the equities between the two contending parties in the following language:

'The most helpful guide to the Court has been a view of the premises. The terrain is such as to almost completely establish a natural boundary between the properties. A high bank marks a considerable portion of that boundary. To give to the Defendant the line contended for by him would not add One Hundred dollars ($100.00) to the value of his property. The added portion of ground which he would receive would not to a large extent be usable by him. On the other hand to establish the line as contended for by the Defendant, would make the remaining portion of the Petitioner's land practically useless insofar as the use to which they are now putting it is concerned. It would decrease by at least half its value for resale purposes.'

This Court has held that even where there is a view by a jury, which is authorized in the exercise of the sound discretion of the trial court by Code, 56-6-16, that a view by a jury, though it is to be considered as evidence, together with the other evidence in the case, is...