Present: Hassell, C.J., Keenan, Koontz, Kinser, Goodwyn, and
Millette, JJ., and Lacy, S.J.
PRESTON W. KITT, ET AL.
v. Record No. 081064 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
HOWARD KEITH CROSBY, ET AL. February 27, 2009
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Malfourd W. Trumbo, Judge
Preston W. Kitt and other heirs of Henry Kitt (collectively
“Kitt”) appeal from an adverse judgment in an ejectment action
instituted against Howard K. Crosby. Kitt first asserts that
the trial court should have ruled, as a matter of law, that Kitt
owned the disputed property based on a 1944 deed of conveyance
and should not have submitted the issue to the jury. Kitt also
assigns error to two evidentiary rulings made by the trial
court. For the reasons stated below, we will affirm the
judgment of the trial court.
FACTS AND PROCEEDINGS
J.L. Blizzard and his wife, Martha F. Blizzard, purchased a
large parcel of land in Alleghany County in 1931. In 1944,
after J.L.’s death, Martha executed a deed of conveyance to
Henry Kitt. In 1995, the Blizzard heirs deeded legal title to
the remaining “unsold and unconveyed” portion of the Blizzard
property to James B. Mead and Virginia L. Brooks, trustees of
the Lipsey-Mead Virginia Land Trust (Mead trustees). The Mead
trustees sold some of the property to Howard Crosby. Crosby
also expressed interest in acquiring property he believed the
Mead trustees owned which was located between the Kitt property
transferred in 1944 and National Forest land. The Mead trustees
agreed to sell the land to Crosby if he established that such a
parcel existed and was owned by the Mead trustees. To support
the Mead trustees’ ownership, Crosby hired a surveyor, Gregory
E. Vess, to prepare a plat depicting the land conveyed to Henry
Kitt in 1944 and the remainder of the Blizzard parcel. In 2001,
Crosby filed suit against the Kitt heirs to establish the
boundary based on the Vess plat. That suit was dismissed
without prejudice.
In 2003 Vess prepared another plat for Crosby which showed
a line dividing a 26.14-acre tract owned by the Kitts from a
71.74-acre tract “represent[ing] an area of uncertain title,
possibly the residue of that property conveyed to [the Mead
trustees]” by the Blizzard heirs. In 2004, the Mead trustees
conveyed the 71.74-acre tract shown on the 2003 Vess plat to
Crosby by quitclaim deed. Crosby subsequently built roads on
the 71.74-acre tract and began cutting timber on the tract in
2005.
Preston Kitt, Henry Kitt’s grandson and heir, filed a
complaint against Crosby alleging that the 71.74-acre tract (the
disputed property) shown on the 2003 Vess plat was part of the
property conveyed to Henry Kitt in the 1944 deed. In an amended
2
complaint, Kitt sought to recover possession of the land,
$221,390 in compensatory damages and $664,170 in punitive
damages. 1
At trial, there was no dispute that the 1944 deed conveyed
a parcel of approximately 25 acres to Henry Kitt (the undisputed
property). Kitt presented the following evidence to establish
his ownership of the disputed property.
The 1944 deed described the property conveyed as follows:
A certain piece or parcel of land of triangular
shape, and containing approximately twenty five (25)
acres, more or less, and bounded as follows:
Beginning at a point at the intersection of the Old
Rich Patch Railroad Bed (railroad now abandoned) with
the boundary line of a tract of land owned by the
United States Government, thence running with said
boundary line of the United States Government, in a
Southerly direction to a point at the intersection of
the said Government line with the intersection of a
boundary (Northerly) line of a tract of land owned by
W.L. McElwee, thence running in a Northwesterly
direction along the Northeasterly boundary line of
the said McElwee tract of land to a point where the
said McElwee tract of land to a point where the said
McElwee tract of land boundary line intersects with
the said Old Rich Patch Railroad bed, thence from
said point, running Easterly along the Southern edge
of the said Railroad bed to the point of beginning
. . . .
Kitt’s surveyor, David Ingram, testified that he located
the property conveyed in the 1944 deed by the deeds and plats of
the adjacent boundaries of the two properties and railroad bed
1
In addition to Preston Kitt, known heirs of Henry Kitt who
wished to participate in the litigation were included as
plaintiffs. Known Kitt heirs who did not wish to participate
were named as defendants along with unknown heirs.
3
identified in the deed. Ingram agreed that there were
inconsistencies in the directional calls of the deed and noted
that the adjoining boundary identified in the 1944 deed as the
McElwee property, had been conveyed to the United States Forest
Service five years prior to the 1944 deed. Ingram further
acknowledged that the deed failed to describe a significant
directional change in the government property boundary line.
Ingram testified that he found remnants of a fence but no fence
posts and that the fence did not extend in a straight line.
Ingram stated that the boundary line depicted on the 2003 Vess
plat did not reconcile with the deed.
Kitt also presented testimony that Henry Kitt, a long-time
employee of Martha Blizzard, lived in a house on the undisputed
property, prior to and after the 1944 conveyance. Grandsons of
Henry Kitt testified that the Kitt family had used the property,
including the disputed property, for hunting, hiking, cutting
logs, picking mushrooms, and digging ginseng. Preston Kitt
claimed his father told him that “if [property is] on this
mountain, it belongs to Henry Kitt or the government.” Preston
Kitt testified that the only fence on the property was built to
enclose four to six acres near the house to keep livestock, and
John Kitt testified that the fence was not built until after
Henry Kitt died. Testimony presented by Kitt also showed that
at one time a barn existed on the undisputed property and
4
another home and saw mill existed somewhere on the property.
There was conflicting evidence as to whether the home and saw
mill were on the undisputed property, along the fence line, or
on the disputed property. Preston Kitt claimed that there were
“drag roads,” used to drag logs out of the woods, on both the
disputed and undisputed property. Preston Kitt testified that
he and his family continued to use the disputed property until
they learned that Crosby was claiming ownership of it.
Crosby’s expert surveyor, Steve P. Douty, testified that
he, like Ingram, was able to find the three adjoining property
lines identified in the 1944 deed. Douty also testified that
the directional calls did not reconcile with the boundaries in
the 1944 deed. Douty, over Kitt’s objections, testified
regarding drawings he made reflecting the calls, courses, and
acreage recited in the 1944 deed and that he drew the line
marking the boundary now claimed by Crosby in an effort “to find
some combination that adheres more closely with the deed.”
Douty testified that this line was based in part on a fence that
he found that ran the length of most of Crosby’s claimed
boundary line. According to Douty, when the fence reached the
perpendicular boundary of the McElwee land purchased by the
Forest Service the fence turned and continued along the
undisputed property. No remnants of a fence were found
5
following the boundary between the disputed property and the
Forest Service property.
Crosby also presented evidence that the Kitts never posted
any of the property, the Blizzards only posted that portion of
the property containing a quarry, and other people from the
community went on the land to hunt and collect mushrooms.
Crosby testified that he found an old fence on three sides of
the undisputed property, including along the old railroad bed.
Crosby agreed that there was evidence of a “skid road” on the
disputed property.
Kitt moved to strike Crosby’s evidence, arguing that,
pursuant to the order of preference rule adopted in Providence
Properties, Inc. v. United Virginia Bank/Seaboard National, 219
Va. 735, 744-45, 251 S.E.2d 474, 479-80 (1979), the trial court
should rule, as a matter of law, that Kitt had established
ownership of the disputed property because both experts could
locate the boundary lines of adjoining properties. The trial
court, finding questions of fact remained as to the intent of
the grantor, denied Kitt’s motion and submitted the case to the
jury.
The jury returned a verdict in favor of Crosby. The trial
court denied Kitt’s motion to set aside the verdict, stating
that there were “sufficient concerns” with the description of
the property in the 1944 deed and that the jury had properly
6
determined “the intentions of the parties at the time of the
conveyance.” We awarded Kitt an appeal on four assignments of
error.
DISCUSSION
1. Ownership of disputed property
To prevail in an action for ejectment, the plaintiff must
prove that he has good title and the right to possession of the
property, and he must recover upon the strength of his own title
rather than upon the weakness of the defendant's title. See
White v. Lee, 144 Va. 523, 529, 132 S.E. 307, 309 (1926). The
primary consideration when construing a deed is “to determine
the intention of the parties executing the instrument.” Camp v.
Camp, 220 Va. 595, 597, 260 S.E.2d 243, 245 (1979). If the
descriptions in a deed are ambiguous, parol evidence can be used
to ascertain the intention of the parties at the time of the
conveyance. Chesapeake Corp. v. McCreery, 216 Va. 33, 37-38,
216 S.E.2d 22, 25 (1975).
In this case, the evidence showed that the 1944 deed
contained a number of inconsistencies or ambiguities including:
(1) the property referred to as the McElwee tract had been
conveyed to the federal government prior to 1944; (2) the
directional calls in the deed were inconsistent with and could
not be reconciled with the location of the adjoining properties;
and (3) while the deed recited a conveyance of 25 acres “more or
7
less,” the adjoining property boundaries encompassed
approximately 97 acres. Nevertheless, the experts for both Kitt
and Crosby were able to locate on the ground the boundaries of
the properties identified in the deed as adjacent to the
conveyed parcel.
Kitt, relying on Providence, argues that the rule of
preference requires that the deed be construed according to the
“adjacent boundaries or lines of adjoining tracts” because, as
the Court held in that case, descriptions of course or distance
must “give way” to “known boundaries” and that quantity is “the
least reliable method of describing land.” 219 Va. at 744-45,
251 S.E.2d at 479. Thus, Kitt concludes, the trial court should
have applied the rule of preference and held that, as a matter
of law, the adjacent boundaries and lines of adjoining tracts in
this case established that the 1944 deed of conveyance included
conveyance of the disputed property to Henry Kitt. We disagree.
In adopting the rule of preference, we specifically stated
that the rule “is not inflexible and will not be applied if to
do so would frustrate the intent of the parties to the deed.
Indeed, the rule is designed to effectuate the presumed intent
of the parties.” Id. at 745, 251 S.E.2d at 480. The rule of
preference is applied to determine the grantor’s intent when
there is no evidence to the contrary. Id. at 747, 251 S.E.2d at
481. When the trial court in Providence applied the rule of
8
preference to determine the grantor’s presumed intent, there was
no other credible evidence showing an intent contrary to that
reflected by the application of the rule of preference. See id.
at 743, 251 S.E.2d at 478. In the instant case, in addition to
the surveyors’ evidence directed to locating the property on the
ground as described in the deed, both parties presented
additional parol evidence of intent.
Kitt’s evidence was that a fence was built to keep
livestock on the 25-acre parcel and that members of the Kitt
family hunted and cut logs and firewood from both the disputed
property and undisputed property. This evidence conflicted with
Crosby’s evidence that the portions of the fence that were found
supported the proposition that the fence was a boundary fence
for the undisputed property conveyed in 1944.
The evidence also showed that the Kitt house was located on
the undisputed property but the evidence regarding the location
of other structures constructed on the property was in conflict.
Testimony located these buildings on the disputed property, the
undisputed property or “right on the line or beyond the line”
shown as separating the two parcels on the Vess survey.
Testimony also showed that, in addition to the Kitt family,
members of the general public had used the disputed property for
hunting and gathering over the years. With the exception of a
9
quarry property, the Blizzard land had never been posted and no
one did or would object to people hunting on the property.
Unlike the record in Providence that contained no evidence
of an intent contrary to the presumed intent established by
application of the rule of preference, this record contains
conflicting evidence of the grantor’s intent. Furthermore, the
evidence of the fence and use of the disputed property was
contrary to the presumption of intent that would prevail if the
rule of preference alone was applied to the 1944 deed. Because
evidence of intent was presented, the trial court did not err in
refusing to resolve the issue of ownership as a matter of law by
applying the rule of preference, and, because that evidence was
in conflict, the trial court properly submitted the issue to the
jury. Accordingly, we reject Kitt’s first assignment of error. 2
2. Admission of surveyor Steve Douty’s testimony
In his second assignment of error, Kitt challenges the
trial court’s admission of certain testimony by Douty. Kitt,
citing Edwards v. W. M. Ritter Lumber Co., 163 Va. 851, 857-58,
177 S.E. 841, 843 (1935), asserts that whether the disputed land
was within the boundaries contained in the 1944 deed is a
question of fact and expert surveyors may testify as to the
facts pertaining to the location, but may not express an opinion
2
Kitt does not challenge the sufficiency of the evidence to
support the jury’s verdict.
10
as to the location. 3 According to Kitt, Douty’s testimony
regarding the location of the property by reference to the
boundary lines of adjoining property was proper but that part of
Douty’s testimony discussing the location of the property based
on monuments or other factors not recited in the 1944 deed, such
as the old fence, amounted to opinion testimony regarding the
location of the boundaries. According to Kitt, because the
boundaries of adjoining properties identified in the 1944 deed
could be established, Douty should have been restricted to
testifying only about those boundaries.
As we have already discussed, admission of parol evidence
to determine the intent of the grantor was appropriate due to
inconsistencies in the 1944 deed, and the conflicting evidence
of intent precludes the application of the rule of preference as
a matter of law in this case. Therefore, Douty’s testimony
based on admissible evidence of intent such as the location of
the old fence was proper. Douty’s discussion of diagrams he
prepared to depict a parcel based on factors recited in the deed
other than adjoining property boundaries involved facts
pertaining to the location of the disputed property but did not
amount to an opinion regarding the location of the property.
3
But see Code § 8.01-401.3(B)(opinion testimony on ultimate
issues).
11
Accordingly, we reject Kitt’s challenge to the admissibility of
Douty’s testimony.
3. Testimony of Gregory E. Vess
Kitt called Gregory Vess as a witness to testify regarding
his 2003 plat. The trial court, however, disqualified Vess from
giving expert opinion testimony based on the “side switching”
doctrine adopted in Turner v. Thiel, 262 Va. 597, 553 S.E.2d 765
(2001). Kitt asserts that this ruling was error because that
doctrine did not apply to Vess’ testimony and, if the doctrine
applied, Crosby failed to satisfy the two-part test established
in Turner to support expert disqualification.
In Turner we adopted the following test to be used when a
party seeks to disqualify the expert of an opposing party
because the expert had previously been retained by the party
seeking disqualification:
Was it objectively reasonable for the first party who
claims to have retained the expert witness to conclude
that a confidential relationship existed between that
party and the expert; and did the first party disclose
any confidential or privileged information to the
expert witness?
Id. at 601, 553 S.E.2d at 768. The person seeking
disqualification has the burden of proving both prongs of
this test. Id. at 602, 553 S.E.2d at 768.
The record shows that Crosby hired Vess in 1999 to prepare
plats reflecting ownership of the disputed property. The plat
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Vess created in 2003 was filed with the 2004 quitclaim deed from
the Mead trustees to Crosby. Vess, called by Kitt as a witness,
testified regarding a number of factual matters involving the
2003 plat, but Kitt was not allowed to introduce a prior plat
made by Vess. At that point, Kitt’s counsel made the following
statement:
I believe I need at this point to be allowed to ask
Mr. Vess something that might carry over from the
area of fact into opinion. And, therefore, I submit
that because the Defendant is the one claiming the
privilege, it’s up to him at this point to prove the
privilege attaches and ask for a ruling of the Court
on that.
Following further discussion, the trial court ruled that Crosby
met his burden under Turner to have Vess disqualified as an
expert witness for Kitt.
Kitt first argues that the “side switching” doctrine
addressed in Turner was not applicable here because Kitt did not
seek to offer Vess as an expert witness on their behalf. The
statement of Kitt’s counsel recited above clearly demonstrates
that Kitt intended to seek opinion testimony from Vess. Since
the sought-after testimony involved an opinion based on
scientific, technical, or other specialized knowledge, and such
opinion testimony can only be given by an expert, see Code
§ 8.01-401.3, the trial court, notwithstanding Kitt’s
protestations, correctly concluded that Kitt was treating Vess
13
as an expert witness, thus implicating the disqualification
issue discussed in Turner.
Kitt next asserts that the doctrine does not apply because
once the 2003 plat was recorded any expectation of
confidentiality or privilege was waived. Again we disagree.
While the plat itself is public record, confidential or
privileged information obtained during the period of engagement
remains protected by the disqualification rule of Turner.
We now turn to Kitt’s assertion that Crosby did not meet
his burden to disqualify Vess under the two-part test set out in
Turner. First, the record reflects that counsel for Crosby
proffered to the trial court that Vess was hired originally in
1999 in contemplation of litigation and, although the litigation
filed in 2001 was dismissed without prejudice, the relationship
remained ongoing on the assumption that Crosby would be a
defendant in a later lawsuit. Whether a confidential
relationship exists, such as a relationship in contemplation of
litigation, is a function of Crosby’s objectively reasonable
perceptions, not those of Vess. Turner, 262 Va. at 601-02, 553
S.E.2d at 768. Therefore, regardless of Vess’ perceptions of
the relationship, the proffer of the nature of the relationship
between Crosby and Vess supported the trial court’s conclusion
that Crosby met his burden of establishing a confidential
relationship as required by the first prong of the Turner test.
14
The second prong of the Turner test requires a showing that
confidential information was disclosed to the expert witness.
Confidential information includes
discussion of: a party’s strategies in litigation, the
kinds of experts that the retaining party expected to
employ, a party’s views of the strengths and
weaknesses of each side’s case, the role of each of
the litigant’s expert witnesses to be hired,
anticipated defenses, counsel’s theory of the case,
and counsel’s mental impressions.
Id. at 602-03, 553 S.E.2d at 768. At trial Vess testified that
he had conversations with Crosby and Crosby’s counsel about
Vess’ findings and opinions as they related to Crosby’s ability
to show ownership of the disputed parcel before and during the
filing of the instant lawsuit. In light of this record
evidence, we cannot say the trial court erred in holding that
Crosby satisfied his proof burden under the second prong of the
Turner test. Accordingly, we reject Kitt’s third assignment of
error.
CONCLUSION
In summary, we hold that the trial court did not err in
submitting the issue of ownership of the disputed property to
the jury, did not err in allowing certain testimony by Douty,
and did not err in disqualifying Vess as an expert offered by
15
Kitt based on the expert disqualification doctrine adopted in
Turner. 4
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
4
In light of these holdings, we need not address Kitt’s
fourth assignment of error regarding his punitive damage claim.
16