Works v. West

• Court: Virginia Supreme Court
• Writing for the Court: HOLT
• Citation: Works v. West, 152 Va. 533, 147 S.E. 196 (1929)
• Decision Date: 21 March 1929
• Parties: RICHMOND CEDAR WORKS et al. v. WEST et al.

147 S.E. 196

RICHMOND CEDAR WORKS et al.

v.WEST et al.

Supreme Court of Appeals of Virginia.

March 21, 1929.

Appeal from Circuit Court, Norfolk County.

Suit by H. W. West and others against the Richmond Cedar Works and others. From a decree giving plaintiff in part relief prayed for, defendants appeal. Modified and affirmed.

W. W. Starke, of Norfolk, and W. J. Parrish, Jr., of Richmond, for appellants.

J. W. Willcox, of Norfolk, for appellees.

HOLT, J. Designating the parties plaintiffs and defendants, according to the positions which they held in the trial court, this is a suit brought by H. W. West and others to enjoin and restrain the defendants from cutting timber on certain land in the Dismal Swamp and to collect damages for that already cut. The relief prayed for was in part given by decree of October 20, 1927. From that decree an appeal has been allowed.

Plaintiffs claim to the eastern line of what is known in the record as the Herron survey, and in addition 22 acres adjoining that survey on the southeast. This 22-acre tract is part of. a 66-acre grant from the commonwealth to A. H. Lindsay, made in 1893. That plaintiffs' holdings, with the exception of this 22-acre tract, do extend to the eastern line of the Herron survey, wherever that is, is fairly clear; but its actual location on the ground is the major issue in this controversy. Plaintiffs would shift it to the east and defendants to the west.

The patent itself bears date September 29, 1819, and covers about 4, 000 acres of wild land in Dismal Swamp. Roughly speaking, it is a parallelogram, with but one broken line which bounds it on the east. Its point of beginning, which likewise is not questioned, is its northeast corner. If we follow the patent, its line runs with Herron's Ditch westwardly, 257 chains, to the Dismal Swamp Canal; thence southwardly with that canal 164 chains to a stake on its bank; thence eastwardly 200 chains to a gum. From this gum to the point of beginning is the eastwardly boundary of the grant, made up of a number of lines. All of the trees named as landmarks are now gone, with the possible exception of a certain dead white oak.

As is frequently the case where large tracts of wild land are concerned, the survey does not close. To make it close, one of two things must be done: The 200-chain line must be extended 17 chains, or there must be a corresponding extension of the last line of the survey as it is run upon the plat. When either of these things is done, we reach the point of beginning, and not otherwise. The plan usually adopted is to follow the lines as they appear in the patent, and to make the necessary changes when the last is reached, rather than make any extension of some intermediate line; but this, as we shall hereafter see, is not possible here as a practical proceeding on the ground.

It is an elementary principle in surveying that courses and distances usually give place to recognized monuments and natural landmarks. To illustrate: If this survey were run upon the ground from its point of beginning in a southerly direction, when its south line at the gum had been reached, we would have a call of 200 chains west to the Dismal Swamp Canal. Two hundred chains would not reach that canal by 17 chains, and its necessary lengthening would be inevitable, not only for the reasons stated, but because its next and westwardly line runs with the canal itself. As a corollary to this rule, those natural landmarks or recognized monumentsrelied upon must be themselves clearly identified. 9 C. J. 215.

Unless one has the aid of the several maps which are before us, any detailed restatement of the evidence, which in a large measure relates to surveying, would be but a jargon of courses and distances. We shall not undertake it.

In order to ascertain and fix upon the ground the lines of a grant, we look first to the grant itself, and follow those lines in the order in which they are there stated. If it is possible to do this on the ground with certainty, nothing more is to be said. A grantee takes what the state gives, unless some senior right has already vested. If this is not possible, resort must be had to evidence aliunde.

In the instant case, when we turn north from the 200-chain south line and follow bearings and distances, we find one of these lines described in the patent as running 22 degrees east 55 chains to a gum in Stewart's line, which is also a line tree in a patent theretofore granted to Hodges and Mills. This line as there described does not come anywhere near the Hodges-Mills grant and leads to an impossible situation. That is to say, you cannot go upon the ground and lay out the Herron land according to the lines of the grant, except in a manner which would be erroneous upon its face. This is admitted in the petition for appeal where it is said: "All parties agree that a call in the grant of 'N 22 degrees E. 55 chains' is erroneous, and should be read 'N 22 degrees W. 55 chains.' " Hence the necessity for evidence beyond that which the grant gives.

How did this error come about? In the clerk's office of the circuit court of Norfolk county is found the surveyor's field notes on which the patent itself rests. They are a part of the surveyor's record there kept. From them it appears that the lines on the ground were run in an opposite direction from that indicated by the patent; that is to say, the surveyor ran down the east line of the grant and then west to the Dismal Swamp Canal, etc. When copied, courses and distances were reversed, and they were properly reversed in every instance except as to this particular line, so that it alone, of all the lines in the patent, appears as it was originally written in the field notes. This error is also made manifest by an examination of the plat which is attached to, and is a part of, the patent. In the map this line bears 22 degrees west as it should.

It is perfectly true that surveyor's notes are not competent to contradict patents as issued. Reusens v. Lawson, 91 Va. 226, 21 S. E. 347, a leading and instructive case. The grantee takes what the state gives and nothing more. To hold that he might take 2, 000 acres of land when the state had given him only 1, 000, because a surveyor's notes give him such an increase, is so manifestly unreasonable as not to merit discussion. Extraneous evidence, however, is competent, not to contradict a patent, but to locate and fix its lines whenever there is any ambiguity on its face. Elliott v. Horton, 28 Grat. (69 Va.) 766; Dogan v. Seekright, 4 Hen. & M. (14 Va.) 125; Peery v. Elliott, 101 Va. 709, 44 S. E. 919; Fentress v. Pocahontas Fowling Club, 108 Va. 155, 60 S. E. 633; South & W. R. Co. v. Mann, 108 Va. 557, 62 S. E. 354; Blacksburg Min. & Mfg. Co. v. Bell, 125 Va. 565, 100 S. E. 800; Trimmer v. Martin, 141 Va. 252, 120 S. E. 217; Ayers v. Watson, 137 U. S. 5S4, 11 S. Ct. 201, 34 L. Ed. 803. Here, not only is the map attached to the patent not in accord with the patent line, but the patent lines, or certainly one of them, is confessedly wrong, and it is in this state of uncertainty that the surveyor's notes become evidence, not only competent but valuable. Ayers v. Watson, supra. If we follow them as they were run upon the ground, there is no doubt whatever about the proper location of the eastern boundary. It is certain that this eastern boundary touches the extreme eastern limit of the Hodges-Mills grant. This is not only shown by the "Cassell Picture Map" in evidence, but it is shown by the map with the patent itself, and there is no doubt about the fact that its location with reference to the point of beginning of the Herron survey is fixed. One grant fixes the other, and if they are shifted, they must be shifted together.

"Calls for adjoining tracts of land are themselves calls for monuments, and where they are certain they are monuments of the highest dignity." Vandall v. Casto, 81 W. Va. 76, 93 S. E. 1044.

It is true that if we follow this last line to the 200-chain south line and follow that line for 200 chains, it would fail to reach the canal by 17 chains; but its extension to that natural boundary would merely be in accord with the common practice of surveyors.

Again, even with the corrections noted in the bearing of the 55-chain line, if we undertake to follow this eastern line as it is written into the patent from its southern end, we will find it cannot be done. The calls take us to a point on the Hodges-Mills grant which the plat shows was its eastern end. It then runs around it to a point from which the last line of the Herron grant does to the point of beginning, all of which clearly appears in "Cassell's Picture Map." The line claimed by the defendants does not strike the Hodges-Mills patent at its eastern end, but intersects its southern line some distance west of that point, and between this point of intersection and the eastern end of the Hodges-Mills grant, the calls of the Herron patent would have to be ignored.

It is a matter of common knowledge that surveyors reverse courses and readingsin order to locate disputed lines. Not only is this a practical check and rule in the science of surveying, but it stands in law approved by the weight of authority. 9 C. J. 169; Ayers v. Watson, 137 U. S. 584, 11 S. Ct. 201, 34 L. Ed. 803. This method may be followed without trouble and confirms the plaintiffs' claim. If we attempt such reversed readings to the lines relied upon by the defendants, we find it to be impossible, for we must leave the south line of the Hodges-Mills grant as a point several hundred feet west of the eastern extension of these lines as called for in the Herron patent.

Of course, as a surveyor's problem, in this uncharted waste of swamps, it is possible to slip the entire Hodges-Mills patent to the west; but in balancing that possibility, the surveyor's notes, the location of the 17-acre tract tied to ditches whose identity is established, and the manner in which the iron pipe came to be...