Burdette v. Campbell

Lovins, Judge; This action of ejectment comes to this Court on writ of error from the Circuit Court of Nicholas County. Frank Burdette is plaintiff and Russell M. Campbell and Laura B. Campbell, his wife, are defendants, and hereinafter will be referred to as “plaintiff” and “defendants”, respectively. The jury returned a verdict for defendants, on which .the trial court entered judgment, to which judgment this Court awarded a writ of error limited to questions involving a disclaimer filed by defendants, the form of the verdict and the judgment rendered thereon. The limited nature of the writ renders a complete factual statement unnecessary. Plaintiff and defendants derive their respective titles from Martin Hill, who died intestate prior to January 25, 1902, seised of a two hundred and twenty-acre tract of land situate near the junction of Peters and Line Creeks in Nicholas County. Plaintiff owns two tracts of land, part of the two hundred and twenty-acre tract, one of which *593 is situate near the confluence of the two creeks above mentioned and is not involved in this litigation. The other tract is situate on Peters Creek a short distance upstream from the first tract, and contains approximately twelve acres. Defendants own a tract of land of approximately 10.69 acres, likewise- a portion of the two hundred and twenty-acre tract above mentioned, which is contiguous to plaintiff’s twelve-acre tract. This litigation relates to the true location of a line extending from a rock and water birch on the south bank of Peters Creek to a point on the south side of the Weston and Gauley Bridge Turnpike, where a gate was formerly located. Plaintiff contends that the true line extends from a point marked “10” on the trial map N. 20° 30' E. 909 feet to point “1”, marked thereon. Defendants contend that said line extends from a point marked “A” on the trial map N. 22° 21' E. 835 feet to a point marked “Bl” thereon, or that such line extends from point “A” above mentioned N. 23° 30' E. 808.5 feet to point “B”, as marked on said map. Point “10” is approximately 162 feet west or downstream from point “A”, and point “1” is approximately 215 feet west of point “Bl” and approximately .233 feet west of point “B”. It is clear that the determination of this action depends upon the true location of the termini of the different lines claimed by plaintiff and defendants. Frequent reference is made in the testimony to a fence extending from the creek to the turnpike, which is apparently located on or near one of the lines claimed by defendants. It is not entirely clear whether the fence is now standing, or whether its location may be discerned. The foregoing suffices to furnish a factual background for statement of the procedural aspects of this action, to which this writ of error is limited. Plaintiff’s declaration, accompanied by a notice, was served on the defendants on August 3, 1933, and was filed in the office of the Clerk of the Circuit Court of Nicholas County on September 4, 1933. The land claimed in the *594 declaration is described by exterior boundary lines as containing twelve acres, more or less, being the entire area of that particular tract of land. The action remained quiescent until May 26, 1941, at which time a nunc pro tunc order of survey was entered as of May 20, 1941. Defendants filed their plea of general issue, a disclaimer and a petition for an allowance for improvements on September 4, 1942, the determination of defendants’ claim for improvements being deferred until after the verdict of the jury on the title. Defendants disclaimed all land lying east of the line fence, which they assert marked the division line between their land and plaintiff’s land, and set forth the following variant descriptions of the line: (a) “ ‘a stake on same side of turnpike, near a gate; thence S. 21 1/2 W. 46 po. to a Water Birch on bank of Peters Creek on line of 600 acre survey’ (b) “ ‘a rock and water birch, corner of R. M. Campbell; thence with said Campbell N 18 1/2 E 49 poles to the beginning’ — the beginning being described as ‘a stake on the south side of the old Weston and Gauley Bridge Road, at a gate, corner to R. M. Campbell and the Heirs of Emily Hill, deceased’ ”; (c) “ ‘a water birch on the south bank of said (Peters’) Creek, corner to the lands of the party of the first part, aforesaid; thence with the line of the said J. R. Hill, across the creek and bottom and with the division fence as it now stands to the beginning’ — the beginning being described as ‘a stake on the south side of the Turnpike Road, near a gate, corner to tract now owned and occupied by the aforesaid Joseph R. Hill.’ ” A trial map, documentary exhibits, and oral .testimony were introduced, the latter being in sharp conflict. The jury returned a general verdict for defendants and against plaintiff. The .trial court overruled a motion to set aside the verdict, entered judgment that plaintiff take nothing by his action and’ that defendants recover costs. Plaintiff relies on six errors, which, in view of the limited nature of the writ of error awarded herein, may be summarized as follows: (1) That the disclaimer should *595 not have been filed until the plea of not guilty was withdrawn; that the disclaimer is inconsistent with such plea; and that the disclaimer filed by the defendants is vague; (2) that the verdict is insufficient basis for the judgment pronounced thereon; (3) that the verdict found for the defendants as to all the land described in the plaintiff’s declaration, notwithstanding defendants’ attempted disclaimer; and (4) that plaintiff is entitled to recover costs accrued from the time the disclaimer was filed. Defendants interposed a two-fold defense: first, that the division line between plaintiff’s land and their land is properly located at the fence hereinabove mentioned, and, second, that their title to the disputed land rests on adverse possession for the statutory period. A defendant in an action of ejectment may challenge the sufficiency of a declaration by a demurrer, but is limited to pleading the general issue of not guilty in bar of the action. Code, 55-4-10; Johnston v. Griswold and Rodgers, 8 W. Va. 240; Russell v. Lavender, 112 W. Va. 531, 166 S. E. 1. We are mindful of the expressions of this Cpurt in the case of Zirkle v. Moore, Keppel & Co., 110 W. Va. 535, 158 S. E. 785, which apparently impinge on the above statement, but we do not regard them as altering the rule established by legislative enactment and the decisions of this Court. A disclaimer is not a plea, but a formal refusal by the defendant to join issue as to all or part of the land claimed by plaintiff. Pardee v. Johnston, 70 W. Va. 347, 355, 74 S. E. 721. A defendant in an action of ejectment to avoid the expense of litigation relative to land to which he makes no claim may by formal deed or entry of record disclaim any interest therein, and thus be relieved from such expense; or, if a part of the land claimed by the plaintiff in his declaration is likewise claimed by the defendant, defendant may disclaim that part in which he has no interest, and plead not guilty as to the residue. Wilson v. Caldwell, 98 W. Va. 661, 666, 127 S. E. 497; Wilson v. McCoy, 93 W. Va. 667, 671, 117 S. E. 473. See also Norfolk *596 & W. Railway Co. v. Christian, 83 W. Va. 701, 99 S. E. 13; Fisher’s Heirs v. Camp’s Heirs, 26 W. Va. 576. When title to all or any part of land is to be disclaimed, it is the better practice to do so at the commencement of the litigation. Wilson v. Caldwell, supra. But by leave of court a plea of the general issue may be withdrawn before verdict, and all or any part of the land in controversy disclaimed. Wilson v. Caldwell, supra; Wilson v. McCoy, supra; Fisher v. Camp, supra. In one instance a disclaimer was permitted after verdict. Jones et al. v. C. & O. R. R. Co., 14 W. Va. 514. Generally, the plea of not guilty and a. disclaimer are offered simultaneously, as was done here. We see no objection to disclaiming at the time of pleading the general issue, but the disclaimer should describe the land disclaimed with certainty. As hereinabove stated, the disclaimer in this case was uncertain in that the land lying east of the line fence was disclaimed, and then the fence was described as being located on a line having three more or less varying descriptions appearing in three deeds. Defendants should have disclaimed all land lying east of the fence, or east of one of the three lines set forth in their disclaimer. Having regará to the necessity for certainty in fixing the location of disputed lines between the lands of parties to an action in ejectment, the variant locations of the line fence contained in the defendants’ disclaimer render it vague and uncertain, and give rise to the error to be presently discussed. If a line appearing on a trial map is designated with certainty in a disclaimer as the line to which defendant disclaims, reference may be had to such map to supplement and render certain the location of such line. Tolley v. Pease, 72 W. Va. 321, 78 S. E. 1111; Boggs v. Morrison, 102 W. Va. 240, 250, 135 S. E. 230. But where, as here, the exact location of a division line is uncertain, by reason of the diverse descriptions hereinabove mentioned, the pertinent rule announced in Wilson v. McCoy, supra, is applicable. *597 Title of plaintiff to a portion of the twelve-acre tract is not disputed by defendants, and it is clear from the evidence that plaintiff is entitled to hold an undefined east portion thereof. Plaintiff herein demanded a twelve-acre tract described in the declaration with particularity. Defendants claimed an indefinite part thereof. Nevertheless, the jury by its verdict, in effect, says that the plaintiff is not entitled to any of the land demanded, and the judgment approving that verdict says that the plaintiff shall take nothing by his action. Strictly speaking, the verdict and judgment gave the defendants more than they claimed. The jury by its verdict should have fixed the true location of the division line between plaintiff’s and defendants’ lands. Croston v. McVicker, 76 W. Va. 461, 85 S. E. 710; Miller v. Holt, 47 W. Va. 7, 34 S. E. 956. If the jury intended to fix the fence as the true division line between the lands of the plaintiff and defendants, thereby resolving the issue in favor of defendants and denying to plaintiff part of the land claimed by him, the division line should have been located and described in the verdict, and a general verdict should not have been received. Wilson v. Caldwell, supra, pt. 3 syl. The disclaimer is indefinite and uncertain; the verdict of the jury inconclusive; and the judgment of the court entered thereon is unsupported by the necessary finding of fact. The trial court erred in overruling the motion to set aside the verdict, and in entering judgment thereon. The contention of the plaintiff with reference to costs is not well taken. There is a distinction as to costs in equity causes and actions at law. In equity the allowance of costs lies in the discretion of the trial chancellor, and such allowance will not bé disturbed unless the discretion is abused. Lay v. Phillips, 116 W. Va. 60, 178 S. E. 523; York v. Meek, 96 W. Va. 427, 123 S. E. 225; Hannah v. Lumber Co., 92 W. Va. 104, 114 S. E. 506; Code, 59-2-11. At law costs are the creature of statute, costs as such being unknown at common law. Hannah v. Lumber Co., *598 supra; West Virginia Cent. Gas Co. v. Holt, 66. W. Va. 516, 617, 66 S. E. 717; Bice v. Telephone Co., 62 W. Va. 521, 524, 59 S. E. 501; West v. Ferguson, 16 Gratt. 270. Costs of a law action in the trial court are awarded to the party for whom final judgment is given. Code, 59-2-8. See Hicks v. Coal Co., 95 W. Va. 17, 32, pt. 7 syL, 120 S. E. 898. A disclaimer grows out of practice, and we find no statutory authority for its use. It is difficult to see where the filing of a disclaimer, the authority for which exists only in the general approval thereof by this and the trial courts of this jurisdiction, would give to either party the right to costs, contrary to legislative enactment, which provides that “the party for whom final judgment is given” shall recover his or their costs. Recovery of costs on this writ of error presents a different question. The party substantially prevailing in this Court is entitled to costs. Code, 59-2-11. Accordingly, the plaintiff is entitled to costs incurred on this writ of error. The costs incurred in the trial court shall abide the final result. Consonant with what we have said herein, the judgment of the Circuit Court of Nicholas County is reversed, the verdict of the jury is set aside, and a new trial awarded to the plaintiff. Judgment reversed; verdict set aside; new trial awarded.