Tompkins v. Vintroux , 3 W. Va. 148 ( 1869 )

Brown, President.

The point requiring the determination of the court in this case is the proper construction to be put upon the partition deed of John and Samuel Lewis, in which they claiming to be the joint owners of a thousand acre tract of laud on the south side of Kanawha river, including the mouth of Scary creek divide the same as foliowsi “Beginning on the Kanawha river three poles above the mouth of Scary creek; thence across the bottom to the base-of the hill three poles above the creek, so as to make the line from the river to the hill extend three poles above the creek; thence from the base of the hill to the back line of the survey, such course as will throw five hundred acres of said tract of 1,000 acres below said division line; and the said John is to have all lying above said line, and the said Samuel all lying below it.”

It will be observed that the poiut on the Kanawha river three poles above the mouth of Scary creek is definite and certain. So also is the line thence across the bottom to the base of the hill three poles above the creek. At the end of this line at the base of the hill begins the line of controversy, and for brevity I will call this point the pivot point, and the succeeding line, which is the line of controversy, the random line. ' From the pivot point to the back line of the survey the random line is to be run. Such is the descriptive call of the deed, but with these further provisions, that the said random line is to extend from the pivot point to the back line of the survey, “ such course as will throw five hundred acres of said tract of 1,000 acres belowr said division line.”

The report of the surveyor and evidence show that the back line of the survey was 508 poles long. So that the first part of the call of the random line from the pivot point to the back line of the survey is fully satisfied if it strike the back line at any point between its two extremities. This random line, therefore, may vary at one end, a distance of 508 poles, and still meet the express call for the back line as well at one end or the other or in the middle of it. And as the random-line is to include, in the part of the survey below that line the quantity of 500 acres, much latitude is allowed to vary the line on the pivot point to the whole extent of the back line of 508 poles in length, in order to include, if necessary, the 500 acres 'on the lower side of it. If the random line had been extended from the pivot point to the lower back corner of the survey, and it had then been found to include more than 500 acres on the lower side, could John Lewis, who was to have the upper part or excess over 500 acres have been heard to claim the right to depart from the call for the back line and vary the random line further down till striking the lower end of the line of the survey the quantity of 500 acres only should be contained on the lower side ? Certainly not. So also varying the random line on the pivot point from the lower or any intermediate point to the upper corner on the back line, it is found upon experiment that there is not the required quantity of 500 acres below the division line, but notwithstanding that fact, it would be equally improper in this case, as in the former, to depart from the call for the back line for the sake of quantity. The two calls, viz: for the back line and for the quantity of 500 acres being found inconsistent and impossible to satisfy both in a court of law, one or the other must control; and as natural objects and fixed lines control magnetic calls and distances it would seem that the call for the hack line should control the call for quantity; and, indeed, the learned counsel, who argued the cause for the defendants in error, in effect, conceded this point; as he admitted the random line could not be varied or extended higher up for quantity than the upper back corner, and argued, therefore, that inasmuch as a straight line from the pivot point to the upper back corner would not include the quantity of 500 acres, it was competent to make two lines and an angle between those points, so as to include the required quantity as had been done in the case. This view of the case raised another point for determination, and that is whether the call for the course or line from the pivot point to the back line is to be regarded a straight line, or whether it may be varied in direction and number as the party making the survey may choose till the required .quantity is obtained. This latter construction would admit of almost endless variety in the location. And as _ each party to the partition line would have equal right of choice in the variation, it could only result in conflict and confusion, as in this case.

I think there can be no satisfactory reason given for departing from the straight line between the two points ascertained; and if the quantity called for be found not to be embraced by the straight line the party can only obtain relief in a court of equity, on a proper case made, but in a court of law must be confined within the bounds of his partition deed, as above construed. As it appears from the evidence that the trespass alleged was done on the land in question above the random line if run straight, though below it if run crooked, to include the quantity, in which former case the defendant in error had no legal right to or possession of the land above the straight line, it is clear that the judgment should be reversed with costs to the plaintiff in error, the verdict set aside, and the cause remanded to the circuit court of Kanawha with instructions to grant the plaintiff in error a new trial upon the payment of the costs occasioned thereby.

The objection that this case, which is trespass quare clausam fregit, could not be revived in the name of the personal representative of one of the joint plaintiffs, who died pending the action and before verdict, I think is well taken, because the action survived to the other joint plaintiff, and whether it so survived or not, in neither case could it have been revived in the name of the personal representative of the deceased plaintiff. But, inasmuch as it was revived by consent in the name of the sole devisee of the decedent, it would seem highly expedient and proper that that which had been done by consent should stand, and not be permitted afterwards to be made the ground of objection by either of the parties consenting.

The remaining judges concurred,

Judgment reversed.