West Virginia Pulp & Paper Co. v. J. Natwick & Co.

I am unable to concur in the opinion of the majority in this case, on the question of the location of the boundaries of the lands involved herein, and dissent therefrom. The parties will be referred to as they stood in the trial court.

In my opinion the plaintiff has made out a case entitling it to recover in ejectment such land as lay within the boundaries described in its title papers, and other evidence produced. While there may be serious doubt as to whether it has connected its title with the commonwealth, the fact that the boundaries of plaintiff's land are controlled by the lines of the Snyder tract of 315 acres, makes this a case of an adjoiner, and not an interlock; and there being no actual possession within the disputed area by the litigants, or any other person, the showing of possession by the plaintiff, for the statutory period of ten years, under color of title, outside the disputed area, and within the boundaries described in the papers constituting such color of title, created a right of recovery to lands within such boundary, independent of its paper title, but did not extend beyond the lines of the Snyder tract. As I view the case, the boundaries of the Snyder tract must determine this controversy. Judge Riley's able and painstaking discussion of the evidence bearing upon this question relieves me of that task, but I cannot agree with his conclusions. I think the trial court should have sustained defendants' demurrer to the evidence, and rendered judgment in their favor, on the sole ground that the boundaries of plaintiff's land, properly located, did not include the land in controversy.

The rule that "In locating the boundaries of land, courses and distances must yield to the natural and marked monuments called for in the instrument," 2 Va. and West Va. Digest, 294, is so well established in this jurisdiction that, ordinarily, citation of authority in support thereof would seem unnecessary. However, the majority holding calls for a discussion of this question.

"Natural monuments include such natural objects as mountains, streams, rivers, creeks, springs, etc. Artificial objects and monuments consist of marked lines, stakes, roads, fences, buildings, and similar matters marked or placed on the ground by the hand of man." 8 Am. Jur. 747. "Whenever natural monuments or objects which include mountains, rivers, creeks, and rocks, are distinctly called for and satisfactorily proved, they become landmarks to which preference must be given, because the certainty which they afford excludes the probability of mistake. Ordinarily, a preference is given to natural objects over artificial monuments in determining boundaries, but natural objects cannot prevail when they are doubtful, and in that case recourse is had to artificial marks or monuments or other calls of an inferior degree of accuracy." 8 Am. Jur., 785. "In locating lands the following are some of the rules resorted to, and generally in the order stated: (1) Natural boundaries; (2) artificial marks; (3) adjacent boundaries; (4) courses and distances — course controlling distance, or distance, course, according to circumstances. Neither rule, however, occupies an inflexible position, for when it is plain that there is a mistake, an inferior means of location may control a higher." Teass v. Cityof St. Albans, 38 W. Va. 1, 17 S.E. 400, 406, 19 L.R.A. 802;Dogan v. Seekright, 4 Hen. M. 125. Supporting a natural monument over an artificial one, the Supreme Court of Appeals of Virginia, in 1854, said: "Artificial monuments are liable to destruction." French v. Bankhead, 11 Gratt. 136-158. A marked tree is an artificial monument because the hand of man had a part in its making. The tree may decay and fall; many things may obliterate the marks; and therefore, while such a tree, while standing, is a monument of high degree, it still falls short of the dignity of a natural monument such as a mountain, ridge, or stream.

Here we have a dispute as to which of two monuments is to be preferred. One is a tree, not clearly, and divorced from other monuments, called for in any title paper introduced in evidence, but marked as a corner, and the age of the marking corresponding to the date of a patent introduced in identification of the land claimed by the plaintiff; and the other a natural monument, "on top of said (Cheat) Mountain," with an additional call for a thorn not now standing, but claimed to have stood at that point, and later destroyed by act of man. No claim is made that the tree first mentioned is on or near the top of the mountain. The undisputed evidence is that it is located on the side of the mountain, some 1890 feet below the top, surface survey, and 467.11 feet below by perpendicular measurement. Both monuments are reached by running a straight line from an admitted corner of plaintiff's land, one, that standing on the side of the hill is reached by running 102.72 poles from said admitted corner, and the other, the top of the mountain, by extending said line an additional distance of 114.56 poles.

In my opinion, the line should be run to the top of the mountain, and my views are based on what I conceive to be the uniform and consistent holdings of the courts of last resort in this state and Virginia. In passing, it should be said that, in respect to land law, we not only give proper weight to cases decided prior to separation, but to later cases as well, because to a peculiar degree, the two states have closely tracked with each other in this branch of the law. I shall, therefore, discuss the decisions of the courts of the two states together, for the reason that there is no conflict between them, and rules established prior to separation have been closely followed in both states since that date.

Strangely enough, the rule that courses and distance must yield to monuments was first announced in Virginia in a case where no monuments were called for in the deed. InBaker v. Seekright, 1 Hen. M. 177, decided in 1806, it was held: "When a deed mentions the course and distance of a line, without any other description thereof, parol evidence is admissible to prove marked trees, not in the course or termination of that line, to be the true line intended." That case was referred to in Dogan v. Seekright, supra, wherein it was held: "Natural or reputed boundaries, or lines of marked trees, ought to be established in preference to mere course and distance, or to mistaken descriptions in surveys or conveyances." In Pasley v. English, 5 Gratt. 141, 142, it was held: "Upon questions of boundary where the particulars of description in the deed are conflicting, it becomes necessary to select those most worthy of confidence; and it is well settled that courses and distances must yield to the natural and marked monuments called for in the instrument." The case then goes on to remark that some cases hold that monuments to control courses and distances must be called for in the conveyance, while others hold that where marks are found on the ground corresponding with the date of the conveyance, they may be considered as marking the true course of the line of the termini thereof. Then follows this statement: "The Virginia cases seem to have gone still further, and have given much weight to marked lines of such description, found on the ground, though corner trees, not to be found or ascertained by evidence, are called for in the instrument, or though inconsistent with points in a plat referred to, especially of comporting with natural objects mentioned." In Elliott v. Horton, 28 Gratt, 766, 767, the three cases cited in this paragraph are referred to and approved.

These early Virginia cases are cited to show how, as applied to marked trees and other artificial monuments, course and distance must yield, even to the extent of recognizing monuments not called for in the conveyance; and would seem to add weight to the plaintiff's contention with respect to the spruce and beech at point "B" on the trial map. However, it should be noted here that these trees are in the line which defendants claim and on top of the mountain at point "7" on said map, and if we treat them as line trees only they do not lessen the strength of defendants' claim. Other contentions with respect to these trees will be hereafter considered.

We now come to the vital question, which is, whether or not the line in question must be run to the top of the mountain. That a ridge or mountain is a natural monument is not, as I understand the majority opinion, questioned, and my position is that this being true, such natural monument must prevail over a marked tree. Where repugnancy exists between course or distance and a natural monument, the monument prevails. "Where such repugnancy exists, the general rule is that both course and distance must give way to natural or permanent objects or monuments, and courses must be varied and distances lengthened or shortened so as to conform to the natural or permanent objects or monuments called for by the grant or survey."Clarkston v. Virginia Coal Iron Co., 93 Va. 258, 24 S.E. 937. In that case, the call was "thence South 17° East 200 poles crossing the said creek (Dixon's Branch) at 34 poles, to a stake on top of Looneys Ridge," and then called for running with the ridge. That the line ran to the top of the ridge was not questioned, and the dispute was as to whether the line from that point should run with the ridge or, following the course of the call, depart therefrom, and it was held that the line must be run with the top of the ridge "or at least the line must be kept with the ridge." See also, Scott v. Jessee, 143 Va. 150,129 S.E. 333, which involved a line running along the top of a ridge, and where it was held that the line called for must run with the top of the ridge. In Fentress v. Pocahontas FowlingClub, 108 Va. 155, 60 S.E. 633, it was held that, "In ascertaining the boundaries of surveys or grants, if natural or permanent objects are called for as a boundary of the land, they control, and courses and distances must yield." In that case, water courses were given as boundaries. Reusens v.Lawson, 91 Va. 226, 21 S.E. 347, 349, was a case where one of the calls in the surveyor's book was "thence with McLeans line N. 23° E. 1280 poles to McGruder's corner chestnut on top of the mountain," and this was in conflict with the calls of the grant. The Court held that the calls of the grant should prevail, but took occasion to discuss the effect of the call quoted above had it been proper to consider the same and said: "If this additional description in the surveyor's book be treated as a part of the description of the land embraced within the Lee Grant, and there be any conflict between them, which is to control in the location of the land? In running the first line from the beginning the call of the grant is 'N. 23° E. 1280 poles, to a chestnut.' Ought the survey to stop at the end of the 1280 poles, the distance called for, or ought it be run to the McGruder corner on top of the mountain, as called for in the survey on the surveyor's book, without regard to course and distance? The general rule is that course and distance must yield to other calls, especially to natural objects like the top of a mountain or a corner tree. If that be the correct rule for locating the Lee grant, it will be located, not by its own calls, but by the calls of the survey or the surveyor's book, and in so locating the calls and description of the grant may be disregarded, and its location determined by the description in another instrument, which is no part of the grant, and upon which it is not based. Taking the grant without the surveyor's book, course and distance would govern if no corner tree was found." I think it clear that if the surveyor's book had been allowed to amplify and control the description of the grant the court would have held that the 1280 poles line would have been run to the corner called for on the top of the mountain. The syllabus point covering this question is: "Courses and distances must yield to other calls, especially to natural objects, like the top of a mountain or a corner tree."

The natural monument rule has wide support in the decisions of the Federal courts. In Newson v. Pryor, 7 Wheat. 7, 10,5 L.Ed. 382, Chief Justice Marshall said: "The most material and most certain calls shall control those which are less material and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall control both course and distance." It will be noted that a "marked tree" is considered less important than natural monuments. InWatkins v. King, 118 F. 524, the Circuit Court of Appeals, through Judge Goff, a West Virginia lawyer, said: "Under the settled rule that calls in a survey for natural objects must control both course and distance, it is error for a court to charge a jury to ignore such calls, as having been made through ignorance or mistake, and to be governed by courses and distances, because the objects called for are not found on the courses or at the distances called for, where there is evidence tending to show that the objects exist, and to identify them sufficiently to justify a finding that they were those seen and called for by the surveyor, however much they may be at variance with the courses and distances called for; nor is such charge justified by the further fact that such finding would make the quantity of land embraced within the survey much smaller than that stated." Of course, the same rule would apply where the acreage was greater. Furthermore, this case disposes of the supposed mistake of the surveyor in making up the calls of the 315-acre Snyder tract. The top of the mountain is in existence, and this being true the theory of a mistake to avoid the mountain is not, in my opinion, tenable. See also Higuera v. U.S., 5 Wall. 827,18 L.Ed. 469; Elliott v. Horton, 28 Gratt. 766; Norfolk Trust Co. v. Foster, 78 Va. 413.

Next, and finally to be considered, are the decisions of this Court. In Adams v. Alkire, 20 W. Va. 480, this Court, speaking through Judge Snyder, recognized the Virginia rule on the question of boundaries, saying: "In the description of lands or questions of boundaries the rule is settled in Virginia and this State that natural landmarks, marked lines and reputed boundaries will control mere courses and distances or mistaken descriptions in surveys and conveyances," citing and discussing the Virginia case, and in the syllabus there is this statement of the law: "Where a deed contains a general description of the land conveyed which can be made certain by proof of the surrounding circumstances, or identified by reference to the land itself or other objects that, more or less distinctly indicate or determine it, and such deed also contains courses and distances of the land; such general description, if it satisfactorily appears from the deed itself or any recital, or writing referred to, therein, that it was the intention of the grantor to convey the land so generally described, will control, and the courses and distances, in so far as they limit or differ from such general description, will be disregarded." In Gwynn v. Schwartz, 32 W. Va. 487, 9 S.E. 880, it was held: "In the description of lands as to questions of boundaries the rule is settled in Virginia and West Virginia that natural landmarks, marked lines and reputed boundaries will control mere courses and distances or mistaken descriptions in surveys and conveyances," and "The statement of the quantity of land supposed to be conveyed and inserted in deeds by way of description, must not only yield to natural landmarks and marked lines, but also to descriptions in deeds by courses and distances." In Matheny v. Allen, 63 W. Va. 443, 60 S.E. 407, 129 Am. St. Rep. 984, it was held: "It is a general rule that, in locating boundaries of land, resort is to be had first to natural landmarks, next to artificial monuments, then to adjacent boundaries, and last to courses and distances." In State v. King, 64 W. Va. 546,63 S.E. 468, 469, this Court said: "Quantity, courses and distances, mentioned in the description of land, must yield to identified monuments, where there is conflict; and mere conflict in the evidence, as to the identity of monuments, does not preclude the application of this rule; it being the duty of the court or jury, as the case may be, to determine, from the evidence, whether the objects in question are the monuments called for." In Wiley v. Hatcher, 70 W. Va. 92, 73 S.E. 245, we held: "In locating the boundaries of land, ordinarily the course of a line must yield to a call for a natural monument," and "a call in an ancient deed for 'two white oaks on Cooper's point' must control over a course given for the line which will not take it to Cooper's point, when the location of that place is definitely established, though the trees are not found there." That case, it seems to me, should be decisive of the case at bar. "Two white oaks on Cooper's point" is less specific as to the location of the monument called for than is a description of a monument at the terminus of a line called for on "the top of said mountain." The mountain referred to was there when the call was formulated, and is there now. All that needs to be done in the matter of location is to run the line called for on a given course until the top of the mountain is reached. The presence of the thorn called for would have been added evidence of the exact location of the corner, but its absence does not destroy the more enduring and satisfatory monument, the top of the mountain. There is satisfactory evidence that the thorn called for at that point once stood there, but it is not necessary to rely thereon. So says Wiley v. Hatcher. A question might have arisen as to where on Cooper's Point the two white oaks were located, but it being said that it was a sharp point, such question may not have been important, but certain it is that even a sharp point is not a more definite location than the top of a mountain at a point where a given line reaches that elevation. I do not think the case of Wiley v. Hatcher can be substantially distinguished from the case at bar. Even as late as 1938, in Conner v.Jarrett, 120 W. Va. 633, 200 S.E. 39, we adhered to the settled rule governing natural monuments. In that case, a stream was involved, but whether it be stream, ridge or mountain, the rule governs, and monuments of such nature, and monuments of lesser dignity, prevail over courses and distances, and acreage called for.

But say the members of the Court constituting the majority, it is not necessary to go to the top of the mountain, because near the end of the 100-pole line from the two beeches at "A" there is found a tree, a spruce, marked as a corner and located at "B" on the trial map. This is in or near the line called for as having its terminus on top of the mountain, and the markings correspond with the date when this line was originally run. But for the corner markings no significance would be attached to this tree. However, it is said that the markings indicate that the line turned from the course of N. 45° 30' W. to S. 64° W. to a point at "C" where a sugar, cherry and beech pointers, and a painted rock were found, and a bunch of thorns near. This point is on the top of the mountain. Therefore, say the majority, this is the top of the mountain the surveyor had in mind, and when he called for this point at the end of the 100-pole line he made a mistake, which we at this late day should correct. This assumption of a mistake is one of the principal contentions relied upon to support the majority opinion. They say, also, that someone, no one knows who, entered a statement on the surveyor's book — "This Plott was rong." They overlook the holding in Reusen v. Lawson, supra, which is that the surveyor's book is not admissible to change the grant, and certainly a notation thereon should not be given any weight whatever; they say there are markings along the line from "B" to "C," but they do not correspond in age to the corner markings at "B." They say that running from "B" to "C" instead of from "B" on the top of the mountain at "7," will give to the defendants the acreage called for in the Snyder tract, and that the survey will close, and they use these arguments, as well as others, to support their view that the call for the top of the mountain should be ignored. I do not believe these considerations should prevail over what I have endeavored to show is the long prevailing and established rule, and I think the fact that not a single one of the trees found at "C" is called for in any title paper read in evidence, and no thorn found at "B" lessens their force. True a spruce was found at "B," and, by reference to the dictionary, this is said to represent the yew called for, but it is not on top of the mountain. The position of the majority is, in my judgment, based largely on conjecture of what was in the mind of the surveyor. The majority opinion, in referring to what the official surveyor did, frequently states that he assumed that the older surveyors meant or did certain things. The theory of the plaintiff's case, in my opinion, rests too much on assumptions and conjecture. I do not believe natural monuments should be disposed of in that fashion. I say that the original surveyor meant to go to the top of the mountain because he said so; the majority say he meant to stop 1890 feet short of the top of the mountain and 467.11 feet below, by surface and perpendicular measurements, respectively, merely because a tree marked as a corner was found at that point, and running a line at approximately right angles from the 100-pole line, trees, not called for in any title paper, were found at another point on the top of the mountain, and because elements of acreage and the closing of the survey more nearly conform to those called for in the survey. I have not entered into the conflicting evidence as to the location of thorns at "C" or at "7." There may have been thorn trees at both points. They are not there now; but the top of the mountain is there, both at "7" and "C." The calls of the deeds which plaintiff put in evidence say the top of the mountain should be reached by running a straight line from point "A" on the trial map, admittedly a correct corner, to the top of the mountain, and not otherwise, and I remain unconvinced that the evidence and circumstances of this case justify what I consider is a marked departure from fundamental law governing the location of boundaries of land, as it has been heretofore applied in Virginia and this state from their very foundation. Rules of law, such as these, affecting as they do our most substantial and enduring form of property, should not be lightly cast aside to serve the exigencies of a particular situation. The land involved in this dispute is on or near the top of one of our highest mountain ranges, was probably of little value in 1846, when the Logan patent was issued, or when Barton acquired the adjoining land. Only the developments of more recent years have given substantial value to this property. In those early days acreage was not so important, and lines were not run with exactness as to either course or distance; therefore, the safe rule is to recognize established, fixed and enduring natural monuments, regardless of other and less satisfactory evidence of location, and regardless of resulting consequences to the litigants involved.

The rule governing the location of boundaries of land, for which I contend, has served us well during the period in which such boundaries have been largely settled in this state. Now the occasions where it is invoked are rare, but in those rare instances I see no reason to depart therefrom, merely to serve a case where, in the opinion of a majority of the Court, the application thereof will produce a result from which it shrinks. No general rule is ever applied in strictness, without producing results, which, in some instances, we would like to avoid. The result of a reversal of the judgment of the lower court in this case produces a result which the majority thinks should be avoided, and to avoid the same it seeks to find a way to produce the result it feels will be just to the litigants involved. I do not share the views of the majority as to the injustice of the result for which I contend, but if I did share such views, I would still contend for the rule which, for more than a century, has been one of the landmarks of real estate law in Virginia and this state, because, as I believe, therein lies the safe and sound course, and one which in almost every case will produce equitable results. That, in rare instances, its application may produce what someone thinks is an unsatisfactory result should not destroy the rule. But is injustice done by the application of the natural monument rule to this case? True, the defendants will gain 212.92 acres of land in excess of the acreage named in the conveyance under which they claim. This is not unusual where, to reach monuments, lines are lengthened, and the converse is true where, in such circumstances, lines are shortened. Acreage is calculated from course and distance, and if they are, in the light of established monuments, incorrect, the true acreage ascertained from corrected courses and distances, follows as a matter of course. There is nothing new, uncommon or important in this situation. The exact number of acres which the defendant gains over the estimated acreage, by the application of the rule for which I contend, the plaintiff gains by the decision of the majority. The matter of acreage in this case is unimportant, and is never considered of major importance, unless it be where confusion exists as to two monuments of equal dignity, in which case the acreage called for in a grant or conveyance becomes important in determining which of the two monuments shall be recognized. "A statement of quantity is regarded as the least certain mode of describing land, and is never allowed to control defined and reliable calls by monuments, courses and distances. All other elements of description must lose their superior value through ambiguities and uncertainties before resort can be had to quantity." 2 Va. W. Va. Digest, 305, and cases there cited.

It is said that the lines of the defendants' land as contended for by the plaintiff will close, or nearly so; while under the claim of the defendants the survey will not close. This is true. Inevitably, a lengthening of the 100-pole line from "B" to the top of the mountain will call for the lengthening of other lines to reach monuments called for. There is nothing startling about this. It has happened before. It is merely following the logic of the situation. If the line in question runs to the top of the mountain, then, necessarily, lines must be run from that point to other monuments called for, and that they may be longer or shorter, or a different course, from those called for is of no particular consequence. If we must go to the top of the mountain the lines from that point must be made to conform to monuments, courses, and distances necessary to reach the beginning corner of the survey. It is simply a case of facing facts. If the true corner of the defendants' land is on top of Cheat Mountain, we should not shrink from giving to that fact its logical consequences, even though it involves an increase of acreage or a lengthening of lines, or the changing of the courses thereof.

I do not think that the question of boundary here involved is affected by the fact that there was a demurrer to the evidence. While it is true that on a demurrer to the evidence all reasonable inferences which can be drawn from all the evidence introduced, should be considered in the light most favorable to the demurree, this case does not, in my opinion, lend itself to inference in favor of either party. The plain question before the court was whether the top of Cheat Mountain should be recognized. That the mountain is there, and that there is a point which can be called the top of the mountain, and that this point is plainly called for in deeds, patents and surveys introduced by the plaintiff, and their correctness vouched for, is undisputed. Where then, is there any place for inferences in favor of the demurree? The question of whether the terminus of the line running from point "A" on the trial map was at "B" or "7," was a question of law for the court. "What are the termini or boundaries in a grant or deed is a question of law; but where the termini or boundaries are located is a question of fact, for the jury." Grief v. N. W. Ry. Co. (Va.),30 S.E. 438, 2 Va. Dec. 600. See also, Bradley v. Swope, 77 W. Va. 113,87 S.E. 86, where it was held: "Where the location of boundary lines are not uncertain or indefinite but depend upon the construction of a deed, calling for the lines of an abutting owner as a part of the boundary, the question is one of law for the court to determine." I contend that it was for the court to say whether, under the calls in the title papers introduced in evidence, the line in dispute should or should not run to the top of the mountain, and that it should have held that the terminus of said line was the top of the mountain. The trial court held to the contrary, and in my judgment, committed error which should be corrected by this Court.

I am authorized to state that Judge Lovins concurs in this dissent.