McMullin v. Lewis

Maxwell, J. This was an action of ejectment in the circuit court of Kanawha county. The jury found a verdict for the defendants, on which the judgment of the court was rendered, from which judgment the plaintiffs have appealed to this court. The plaintiffs claimed title under a grant from the commonwealth bearing date March 1st, 1860. The defendants claimed title under a grant from the commonwealth of Virginia to Jacob Skiles, for a tract of 40,000 acres of land, bearing date on the 11th day of July, 1798, founded upon a survey made on the 24th day of October, 1794, by Maurice Reynolds, assistant for Reuben Slaughter, surveyor of Ka-nawha county. For the purpose of showing, and to aid in showing, the identity of the said tract of 40,000 acres under which the defendants claimed, they gave in evidence to the jury copies of the following surveys, together with the grants which issued thereon respectively: A survey bearing date [153] March 12th, 1795, made by Charles Ferry, assistant to Reuben Slaughter, surveyor of Kanawha county, for John Steel for 27,000 acres of land, which survey calls for “a post in a line of Jacob Skiles’s survey of 40,000 acres; thence with his line's south 45, west .520 polos, to white oak and hickory; south 60, east 160 poles, to a beech and gum; south 30, cast 200 poles, to a white oa^ an<^ poplar; south 20, east 80 polos, to a sugar and beech; south 41, east 520 poles, to two beeches; south 29, oast 132 polos, to two' beeches; south 30, west 80 poles, to a cucumber tree on the waters of Campbell’s creek; south 25, east 180 poles, to two beeches and a white oak; thence leaving Skiles’s line,” tfec. A survey bearing date January 10th, 1795, made by Charles Ferry, assistant to Reuben Slaughter, surveyor of Kanawha county, for Andrew Work and Robert Corran, for 30,000 acres of land, which survey calls for a corner to the 27,000 acre John Steel survey, “in a line of Jacob Skiles’s survey of 40,000 acres, and with liis line, north 45, east 1,675 polos to two beeches and a gum corner to Skiles’s and also corner to a survey of 50,000 acres made for John Barclay,” (fee. A survey bearing-date March- 2d, 1795, made by Charles Ferry, assistant to Reuben Slaughter, surveyor of Kanawha county, for John Steel, for 19,500 acres of land, which survey calls to begin “ at a sugar tree, beech and maple on a fork of Bell creek, about a half a mile up said fork from the road that leads from G-auley to the boat yard, being corner to Skiles’s survey of 40,000 acres, and also corner to a survey of 50,000 acres made for John Barclay,” (fee. A survey bearing date May 20th, 1795, made by William McCreary, assistant to Reuben Slaughter, surveyor of Kanawha county, for Jacob Skiles, for 32,097 acres of land, which survey calls to begin “at a sugar tree, beech and maple on a branch of Bell creek, corner to said Skiles’s survey of 40,000 acres and Barclay’s 50,000 acre survey,” <fec. After these surveys and the grants founded thereon, were given in evidence, the plaintiffs moved to exclude them from the jury as incompetent evidence to prove, or aid in proving, the identity of the said 40,000 acre tract of land granted to Skiles, or to ¡Move, or aid in proving, its corners and lines, or any one of them, or the bounds thereof. But the court refused to reject the testimony of said surveys [154] or grants, or any or either of them, as incompetent evidence to prove, or aid in proving, the identity of said 40,000-acre tract of Sidles, or to prove, or aid in proving, its-corner lines and bounds thereof, but permitted each and all of said surveys and patents to go to the jury as evidence, and proper and competent for that purpose, and left its weight to the jury. To which the plaintiffs, excepted. It is insisted here for the plaintiffs and appellants, that the circuit court' erred in permitting the jury to receive and consider the surveys and grants of the said tracts of land, as competent and proper evidence to establish the identity of the 40,000 acres surveyed and patented to Sidles, under which the defendants claimed. The reason assigned by the appellants is that the surveys of the four-tracts of land for 27,000 acres, 30,000 acres, 19,500 acres and 32,097 acres respectively, were all made by surveyors other and different from the surveyor who rpade the survey of the 40,000 acre tract. In the case of Overton's heirs vs. Davison, 1 Gratt., 211, the supreme court of appeals of Virginia held that in a controversy concerning the boundary or locality of a tract of land granted by the commonwealth, pursuant to a survey, the calls and description of a survey made by the same surveyor about the same time, or recently thereafter, of a coterminous or neighboring tract, upon which last-mentioned survey a grant has also issued from the commonwealth, whether to a party to the controversy or a stranger, is proper evidence upon such question of boundary or locality, unless plainly irrelevant; to have such weight with the jury as under all the circumstances they may consider it entitled to. In the case of Clements vs. Kyles, 13 Gratt., 468, an effort was made to extend the doctrine of Overton vs. Davison. To identify and locate a certain wood survey, two other grants upon surveys not made by the same surveyor who made the wood survey, were allowed by the circuit court to be given in evidence, but the court adhered to the rule laid down in Overton vs. Davison, and reversed the circuit court. These are the only two cases to which our attention has been called, decided by the Virginia courts, in which the question has been raised. The refusal of the court in the case now before us to exclude the surveys and the grants founded [155] thereon, from the jury, as evidence tending to locate the survey in dispute, was in violation of the rule laid down in the case of Overton vs. Davison, as limited and explained by the case of Clements vs. Kyles, and therefore erroneous, as no principle or precedent can be found for extending the rule any farther than it is laid down in Overton vs. Davison. A point is made by the counsel for the appellants on the supposed improper admission of the plat and survey of Mathews, commissioner of delinquent and forfeited lands, but the record does not show that any objection was made in the court below, so as to raise the question here. The judgment will have to be reversed with costs and the cause remanded. Berkshire, P., concurred with Maxwell, J. Judge Moore declined to give any opinion. Judgment reversed.