West Virginia Pulp & Paper Co. v. Dodrill

DAYTON, District Judge (after stating the facts as above). [1] In the case of State of Rhode Island v. State of Massachusetts, 12 Pet. 734, 9 L. Ed. 1233, the Supreme Court has held: “No court acts differently in deciding on boundary between states than on lines between separate tracts of land; if there is uncertainty, where the line is, if there is a confusion of boundaries by the nature of interlocking grants, the obliteration of marks, the intermixing of possession under different proprietors, the effects of accident, fraud, or time, or other kindred causes, it is a case appropriate to equity.” But generally a court of law is the proper tribunal to determine questions .of boundary and location, and equity should only intervene when some special right or defense makes it necessary for it to do so. Security Land Co. v. Burns, 193 U. S. 167, 169, 24 Sup. Ct. 425, 48 L. Ed. 662. And the Supreme Court of Appeals of this state has repeatedly held that a court of equity has no jurisdiction to settle the title and boundaries of land, when the plaintiff has no equity against the party who is holding the same. Burns v. Mearns, 44 W. Va. 744, 30 S. E. 112; Watson v. Ferrell, 34 W. Va. 406, 12 S. E. 724; Kemble v. Cresap, 26 W. Va. 603; Freer v. Davis, 52 W. Va. 1, 43 S. E. 164, 59 L. R. A. 556, 94 Am. St. Rep. 895. And in Hill v. Proctor, 10 W. Va. 59, it is held that: “The existence of a controverted boundary does not constitute a sufficient ground for the interposition of courts of equity to ascertain and fix that boundary. It is necessary to maintain such a bill that some peculiar equity should be superinduced. There must be some equitable ground attaching itself to the controversy.” In Lewis v. Yates, 62 W. Va. 575, 59 S. E. 1073, it is said: “When certain lines and corners of a survey are reasonably well identified or admitted, and others are not, courses and distances must he allowed controlling force in determining the location of the latter, when the description by quantity is in substantial agreement with the area of the tract so located, even though there be slight evidence tending to show marked lines, differing from those determined by the courses and distances.” [2] In this case there is absolutely no dispute about the first or beginning corner of the Planway survey being the fallen poplar and W. O. at A upon Wolverton’s map. I think the evidence of Surveyor Criekard and C. PE Scott strongly tends to prove the second corner of the survey at or near E on this map. It seems to me quite probable, from the experience we have had with, these old Virginia surveys, that Friend, who made this survey for Planway, ran this first line and then protracted the others, but, deceived by the contour of the country, thought he was locating the land by such protracted lines down the river and not across it on Gauley Mountain. It is entirely probable and likely true that Ann Mace, P’eter Conrad, and the Cowgers, deceived by the pen tracing of the river, as made by Friend on his plat, through the land, instead of across it, may have lived in blissful ignorance of the fact that they were in fact mere “squatters” upon other land than that derived by them in the purchase of the Hanway grant. This does not change the fact that the commonwealth of Virginia did not, [786] by the Hanway grant, confer title for any other than the land as ascertained by actual survey carefully made by Surveyors Crickard and Wolverton from the recognized and established corner at A and the •courses and distance from and to this corner. No reversal of calls can change the inevitable result of fixing the location across the river on Gauley Mountain, instead of down the river, where the Cowgers had “squatted,” cleared, and built their homes. It is not necessary to say that the plaintiff must, both in law and equity, recover, if at all, by virtue of the strength of its own title, and not by reason of the weakness of its adversary’s, unless there be some equity existing between it and the Cowgers, in possession of the other land, which it is seeking by this suit to acquire. The fact that the Cowgers sold their interest to Dodrill in the Hanway survey, and that plaintiff is Dodrill’s ultimate alienee, did not authorize either Dodrill or it to demand from the Cowgers any other than the Hanway survey, which they sold. Does any equity exist, by reason- of contract, fraud, or misrepresentation? So far as John Cowger is concerned, it would necessarily have arisen when he sold his interest to Dodrill. Not the slightest evidence to this effect is shown. Dodrill acquired first the interest of Lewis through judicial proceedings and sale, then John’s by purchase, and lastly Peter’s by purchase from his heirs. He was very active in his efforts to secure the land down the river, instead of that embraced in the Hanway grant, which he had in fact purchased. He knew full well that the Hanway grant of his did not cover the downriver land. This he disclosed fully when he instituted the action of ejectment, which after his death his heirs abandoned the prosecution of; and it was also disclosed to him when Melvina Cowger instituted her suit for dower against him. But, aside from Dodrill, what were the relations of Ruckman with the Dodrill heirs and John Cowger? J. M. Dodrill testifies, and it is not denied, that Ruckman himself prepared the deed from the Dodrill heirs to himself, and took it to these heirs and had them sign it. This deed was a special warranty one, into which the exact calls of the Han-way survey, as ascertained by Crickard and embraced in his report and map filed in 1903 in the Dodrill-Cowger ejectment suit, were incorporated and made the descriptive metes and bounds of the land he was buying, and he further bound himself in this deed to assume responsibility for pending litigation about the land and save the Dodrills from any cost thereof. He admits that when he secured from John Cowger his quitclaim deed as to this Hanway survey he cannot remember of Cowger saying anything about its including the land outside the Han-way survey where Cowger lived, and he says that it was at the time or right at the time he secured this quitclaim that he learned the land lay across the river. It is by no means a violent deduction—on the contrary, almost an inevitable one—that he knew this fact before that time, because he says he secured this quitclaim after he bought from, the Dodrill heirs, and the report and plat of Crickard, from which he secured the calls for his Dodrill deed to himself, as well as these calls themselves, made very clear that the land lay across the river, not down it. [787] So far as the subsequent alienees, Innes, the West Virginia Pulp & Paper Company (West Virginia corporation), and the plaintiff are concerned, there is no attempt to show any connection with Cowger touching this matter whatever. It seems to me clear, therefore, that under the law and the facts of this case there is and can be no possible ground for this court of equity to intervene and grant to plaintiff the relief prayed for, other than that of requiring from the executors of Dodrill the conveyance of the naked legal, title held by them in and to this land as laid down by Wolverton on his plat by the letters A, E, F, G; and this relief can be granted as against such executors upon the bill taken for confessed and unanswered by them. As to all other mailers and parties, the cause must be dismissed.