The decision of this case turns upon the location of the terminus of the following call in the defendants' title papers, the call dating back to the grant under which defendants hold: "2 beeches and a number of pointers between 2 small drains Thence S. 50° E. 100 poles to a Thorn and yew and beech pointers on the top of said mountain." If this language means that the exact top of Cheat Mountain is the called-for corner, the demurrer of the defendants to the evidence should be sustained: if not, plaintiff has shown good title to the land in controversy, and the demurrer to the evidence should be overruled.
In executing an order of survey, the thorn, yew and beech pointers were not found, nor was anything found indicating their location on the ground. The top of the mountain is a sizeable flat surface on which levels had to be taken a dozen times (the mistakes made in the use of surveying instruments being the main reason for subordinating bearing and distance to monuments, supposedly locatable without their use) in order to locate the highest point. Under those circumstances, I do not believe the top of the mountain should be regarded as a monument of any sort, but at best from defendants' viewpoint should be taken as nothing more than a general landmark intended to assist in locating the called-for corner. When that, coupled with the admitted fact that in order to reach that now located point (top of the mountain), the distance named in the call must be practically doubled with certain known natural monuments disregarded, is considered, I do not believe that the defendants have succeeded in locating a monument which should control over bearing and distance.
That there is a mistaken distance in the call under discussion is a part of the defendants' contention and, therefore, I am under the impression that the plaintiff was fully justified in taking the position that the bearing and *Page 784 distance is not a mistake as the defendants are forced to contend, but that the mistake in the admittedly inconsistent call is in describing the thorn and yew with the beech pointers as being "on the top of said mountain." When there is conflict between established bearing and distance and controverted corners, certainly proof aliunde the instrument is proper.
Both the majority opinion and the dissent go thoroughly into the evidence and it is unnecessary that it be repeated even partially. All references herein made to the evidence give plaintiff the benefit of conflicting testimony and all fair inferences from facts in that way, or otherwise, established. I am of the opinion that this discussion of the defendants' demurrer to the evidence should center upon determining the manifest intention of the parties to the numerous deeds under which the defendants hold and the evidence of those familiar with the boundaries on the ground which may be taken as a practical construction of the language of the grant which gave rise to the defendants' title.
We must not lose sight of the fact that the definitely settled rules of construction by which the description of land contained in a deed is located on the ground, preferring natural monuments over bearing and distance, are used when, and only when, their use is rendered necessary in order to arrive at the intention of the parties to the deed or to clear an ambiguity concerning their purpose. I cannot agree with Judge Fox's statement that the preference accorded natural monuments, admitting their high rank, under this rule is "the fundamental law governing the location of boundaries of land." Admitting the solemnity to be attached to a deed, it seems to me to be plainly apparent that we are here dealing with adjective law or rules of construction — not rules of property. See 16 Am. Jur. 528, paragraph 161. The intention is the governing criterion, and a rule of construction that conflicts with the manifest intention of the parties is to be entirely ignored. Code,36-3-4. As rejecting a beginning corner as having been selected by mistake and inconsistent with the other matter ofdescription in the deed *Page 785 and hence contrary to the manifest intention of the parties, see State v. Herold, 76 W. Va. 537, 85 S.E. 733, by a divided court. As approving an instruction which told the jury to disregard evidence of marked corners and to consider bearing and distance instead, see Tolley v. Pease, 72 W. Va. 321,78 S.E. 111. This case is, apparently, decided upon a theory entirely different from, if not directly contradictory to, that which controlled Watkins v. King, 118 F. 524, 55 C.C.A. 690, decided thirteen years before the Tolley case and quoted by Judge Fox. For a sound discussion of the fact that manifest intention of the parties controls the construction of deeds, see Mylius v. Lumber Co., 69 W. Va. 346, 361, 71 S.E. 404. See also, Casto v. Baker, 59 W. Va. 683, 53 S.E. 600. The case ofGoff v. Goff, 78 W. Va. 423, 89 S.E. 9, goes so far as to hold that where the language indicates clearly that the parties are mainly interested in conveying a given acreage, quantity is the controlling element and governs the location of the closing line between two named points to the extent of curving that line instead of running it straight. The opinion of Judge Snyder in Ruffner v. Hill, 31 W. Va. 428, 435, 7 S.E. 13, distinctly states the controlling effect of intention when it is a matter of deciding whether distance or course is to be preferred. As I read Judge Snyder's opinion in the case ofAdams v. Alkire, 20 W. Va. 480, cited by Judge Fox, the holding is that intention is the governing criterion as compared with settled rules of construction, and, therefore, in the matter then before the court, metes and bounds, as specific description, gave way to a general description of the tract conveyed.
I cannot accord to the Virginia cases the same controlling effect since the separation that they had before, but I do not believe that there is the slightest difference in the discussed doctrines now adhered to there and here. Mr. Minor in his valuable work, "Real Property," has this to say concerning the effect to be given to intention in construing the language of a deed:
"The purpose is to make out the boundaries by mathematical lines, and to this end monuments *Page 786 are not essential, though very useful for the purpose of correcting defective measurements. Usually, both monuments and courses and distances are employed, and if there be any irreconcilable divergence between them, the courts will look to the intention of the parties, so far as it can be ascertained, to determine which should prevail. But in the absence of evidence of intention on this point, the general presumption is that a call for fixed monuments is to take precedence over inconsistent calls for courses and distances upon the theory that the former are more apt to have been in the minds of the parties than mere imaginary mathematical lines.
"So, also, there being no monuments, in case of a conflict between the distance of one line and the course of another, the general rule is that the intention of the parties shall control, and no arbitrary rule can be laid down that the distance must yield to the course, or vice versa. Perhaps, however, in the absence of any positive evidence of intention, a presumption may arise in favor of the course over the distance, upon the theory that chain carriers are more likely to make mistakes in measuring the distance than the more skilled and experienced surveyor is in ascertaining the course in surveying land." 2 Minor on Real Property (2d Ed.), pp. 1418, 1419. (Italics in original text).
(Those sufficiently interested will do well to examine the cases cited in the comprehensive footnotes to the text.) As illustrating that in all other jurisdictions rules of construction give way before the manifest intention of the parties in preferring general description to particular description, see the annotation in 72 A.L.R. 410, referring to three West Virginia cases on pages 422 and 423.
From the foregoing authorities, I reach the conclusion that natural monuments, even where found, and here they are not, do not control over the intention of the parties to a deed that can be ascertained from the face of the instrument.
What, then, appears from the face of the description in the defendants' muniments of title? With the corner located *Page 787 according to the defendants' contention three things occur: (1) Distance of the call to the corner is extended to more than double the named length; (2) the grant under which defendants hold fails to close by approximately the added distance or by over sixteen hundred feet; (3) the acreage of the defendants' tract is increased by two-thirds of its size, and plaintiff's reduced accordingly. As fallible as men are, I do not think a normal intent under any circumstances would be to make one mistake of the magnitude common to the three blunders that would occur on the defendants' theory, and certainly on that theory the entire outcome would conflict with normal comprehension. I believe that it is certainly a reasonable, if not an inescapable, inference that no grantor would intend to warrant the title of land so described. These facts, discoverable from the face of defendants' title papers, coupled with all of the surrounding circumstances, among which are that upon plaintiff's theory the distance of the call corresponds with marked timber, the annulations of which agree with the date of the survey; the survey may be said to close for all practical purposes; and the acreage of both the defendants and the plaintiff is accurately named in the deeds under which they claim; cause me to believe that with intention controlling, the trial judge correctly overruled the defendants' demurrer to the evidence and entered judgment for the plaintiff.
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