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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2005 Term
_____________
No. 32055
_____________
WILLIAM R. VIA,
Plaintiff Below, Appellant
v.
RALPH BECKETT AND JOAN BECKETT,
Defendants Below, Appellees
______________________________________________________
Appeal from the Circuit Court of Raleigh County
Honorable John A. Hutchison, Judge
Civil Action No. 00-C-678-H
AFFIRMED
_______________________________________________________
Submitted: March 23, 2005
Filed: July 7, 2005
|
William R. Wooton, Esq.
The Wooton Law Firm
Beckley, West Virginia
Attorney for Appellant
| W.F. Richmond, Jr., Esq.
Beckley, West Virginia
Attorney for Appellees |
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE ALBRIGHT dissents and reserves the right to file a separate opinion.
JUSTICE STARCHER dissents and reserves the right to file a separate opinion.
SYLLABUS
1. “'“Appellate
review of a circuit court's order granting a motion to dismiss a complaint
is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).' Syl. Pt. 1, State
ex rel. Smith v. Kermit Lumber & Pressure Treating Co., 200 W.Va. 221,
488 S.E.2d 901 (1997).” Syl. Pt. 1, Bowers v. Wurzberg, 205 W.Va.
450, 519 S.E.2d 148 (1999).
2. “Appellate
review of a partial summary judgment order is the same as that of a summary judgment
order, which is de novo.” Syl. Pt. 1, West Virginia Dept. of Transp.,
Div. of Highways v. Robertson, No. 31770, 2005 WL 1124401 (W.Va., May 10,
2005).
3. “'“'A
motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.' Syl. Pt. 3, Aetna Casualty & Surety
Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syl.
Pt. 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).'
Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d
329 (1995).” Syl. Pt. 4, Pritt v. Republican Nat. Committee, 210
W.Va. 446, 557 S.E.2d 853 (2001).
4. “'Summary
judgment is appropriate if, from the totality of the evidence presented, the
record could not lead a rational trier of fact to find for the nonmoving party,
such as where the nonmoving party has failed to make a sufficient showing on
an essential element of the case that it has the burden to prove.' Syl. Pt. 2, Williams
v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).” Syl.
Pt. 3, Kiser v. Caudill, 215 W.Va. 403, 599 S.E.2d 826 (2004).
5. “'It
is a general rule that, in locating boundaries of land, resort is to be had first
to natural landmarks, next to artificial monuments, then to adjacent boundaries,
and last to courses and distances.' Syl. Pt. 1, Matheny v. Allen, 63 W.Va.
443, 60 S.E. 407 (1908).” Syl. Pt. 7, Blain v. Woods, 145 W.Va. 297,
115 S.E.2d 88 (1960).
6. “'In
construing a deed, will or other written instrument, it is the duty of the court
to construe it as a whole, taking and considering all the parts together, and
giving effect to the intention of the parties wherever that is reasonably clear
and free from doubt, unless to do so will violate some principal of law inconsistent
therewith.' Syl. Pt. 1, Maddy v. Maddy, 87 W.Va. 581, 105 S.E. 803 (1921).” Syl.
Pt. 2, Belcher v. Powers, 212 W.Va. 418, 573 S.E.2d 12 (2002).
7. “In
ascertaining a disputed boundary the calls in the respective deeds cannot be
disregarded, if they can be applied and harmonized in any reasonable manner.” Syl.Pt.
1, Somon v. Murphy Fabrication & Erection Co., 160 W.Va. 84, 232 S.E.2d
524 (1977).
8. “'Calls
in a deed for an adjoining tract of land are calls for a monument, and where
the location of such adjoining tract of land is certain it becomes a monument
of the highest dignity.' Syl. Pt. 4, Vandall et al. v. Casto et al., 81
W.Va. 76, 93 S.E. 1044 (1917).” Syl. Pt. 2, Westover Volunteer Fire Dept.
v. Barker, 142 W.Va. 404, 95 S.E.2d 807 (1956) (rehearing denied March 5,
1957).
Per Curiam:
This
case is before the Court on appeal from the February 26, 2004, Final Order of
the Circuit Court of Raleigh County dismissing the case. The entry of the Dismissal
Order effectively resolved any remaining issues in the case
not previously considered by the circuit court in its September 30, 2002, Order,
which granted partial summary judgment in favor of Appellees on the issue of
a particular call in a deed and its significance in the determination of a disputed
property line. The issues considered in the September 30, 2002, Order are the
focus of this appeal.
This
Court has before it the petition for appeal, the response, the briefs of the
parties, and all matters of record. Following the arguments of the parties and
a review of the record herein,
(See
footnote 1) this court finds that existing case law supports the
position of the Appellees over that of the Appellant. Accordingly, the Court
affirms the February 26, 2004,
Order of the circuit court in favor of
Appellees.
I.
FACTS
A. The Beckett Parcel
On
December 7, 1972, Appellees Ralph Beckett and Joan Beckett obtained a parcel
of land fronting on what is now East Main Street (but formerly Neville/East
Neville Street) in Beckley, West Virginia (hereinafter, the “Beckett parcel”).
The Becketts obtained the property from Robert W. Maples and Evalene Maples.
The property had previously been deeded to Robert W. Maples and Lora Maples
Mellon by Richard Lewis and Elizabeth Lewis on August 9, 1944. The Lewises
had obtained the property from Stansbury, Callaway & Scott, Inc. (hereinafter, “Stansbury”),
on May 13, 1924.
The 1944
Lewis-to-Maples deed and the 1972 Maples-to-Beckett deed contain this description
of the parcel:
Beginning
at a stake on the northeast edge of Neville Street, a fence post and corner to
Daniel Boone; thence with said Street N 65 10 E 47 1/10 feet to a stake, corner
to Lot No. 2; thence with the line of the same a straight line parallel to the
line of the lot formerly owned by Tobin Stover, N 10 30 W 150 feet to a stake
on an alley to a right-of-way, conveyed by Stansbury, Callaway & Scott, Inc.
[sic] a corporation, to Claude Jarrett; thence a straight line parallel to East
Neville Street and 150 feet distant thereto and with said right-of-way about
49 1/3 feet to a stake in the line of the fence of Daniel Boone, and thence with
his line about 150 feet to the place of beginning.
(See
footnote 2)
Upon the Beckett parcel are situated a house, an asphalt parking surface, garage
apartments, and an outbuilding.
B. The Via Parcels
On
May 10, 1996,
(See footnote
3) Appellant William R. Via obtained two parcels of land from James
Ansel Lilly. One of the parcels relevant to this matter was a fifteen-foot
alley (hereinafter, the “Lilly-Via lot”). Situated upon the Lilly
parcels was a one-story block building, which housed a gun and pawn shop. Upon
discovering that the gun and pawn shop encroached on an adjoining lot, Via
obtained the adjoining tract of land from Mary Lou Simpson on June 10, 1999.
(See
footnote 4) It is the former Simpson property (hereinafter, the “Simpson-
Via lot”) that is at issue in this case.
The Simpson-Via
lot is apparently descended from the same original grantor as the Beckett parcel;
that is, the Simpson-Via lot can be traced back to Stansbury. Stansbury obtained
the lot from R. M. French, who obtained the lot in a trust deed from Perry A.
Cook. The lot was described as follows:
Beginning
at a stake at the intersection of East Neville Street, with East Park Avenue
thence with East Park Avenue N 10 30 W 150 feet to a stake; thence leaving said
Avenue S 65 10 W 49-1/3 feet to a stake, a corner to Lot No. 1; thence with the
line of Lot No. 1 S 10 30 E 150 feet to a stake at the edge of East Neville Street,
and thence with East Neville Street N 65 10 E 49 1/3 feet to the place of beginning,
containing 7400 sq. ft.
That parcel was eventually conveyed to D.V. Lilly by Stansbury. Because none
of the subsequent deeds relating to the lot were made part of the record (or,
at least, are not part of the record presented to this Court), the Court cannot
be clear as to how the land was conveyed to Simpson, who ultimately conveyed
the parcel to Via.
The dispute
herein focuses on the location of the common property line representing the western
boundary of the Simpson-Via lot and the eastern boundary of the Beckett parcel.
Though the deed conveying that property to Via is not part of the record, both
parties agree that the Simpson-Via lot was described in that deed in the same
manner as the lot was described in the Cook-to-French trust deed noted above.
C. The Boundary Dispute & Procedural History
After
obtaining the Lilly-Via lot, and discovering that the gun and pawn shop situated
on the lot encroached on the Simpson lot and possibly on the Beckett parcel,
Via commissioned Harold R. Snodgrass, a civil engineer, to survey the Lilly-Via
lot in 1999.
(See footnote
5) At that time, Snodgrass determined that the gun and pawn shop
did indeed encroach on both
the Simpson lot and the Beckett parcel. As referenced above, Via then purchased
the Simpson lot (thereafter, the “Simpson-Via lot”).
In June
of 2000, Via commissioned James E. Wentz, a surveyor by experience, to survey
both the Lilly-Via and Simpson-Via lots. Unlike Snodgrass, Wentz found no encroachment
of the gun and pawn shop on the Beckett parcel, but determined instead that a
building on the Beckett parcel containing garage apartments encroached on a portion
of the Simpson-Via lot by a little more than one foot.
The discrepancy
in the surveys of Wentz and Snodgrass followed from their different interpretations
of the property descriptions contained in the relevant deeds. Snodgrass focused
on the language of both deeds describing a common line between the Beckett parcel
and the Simpson-Via lot. That call described a line “N 10° 30' W 150
feet,” and the call in each deed referred to the neighboring lot.
(See
footnote 6) Snodgrass determined that this
line, which was common to both sets of deeds, was a monument and based the
rest of his survey on that monument.
Wentz,
on the other hand, focused on certain other language found in the Beckett deed
only. He focused on language that called for a line:
“Beginning
at a stake on the northeast edge of Neville Street, a fence post and corner to
Daniel Boone [the lot on the western edge of the Beckett parcel]; thence with
said Street N 65 10 E 47 1/10 feet to a stake, corner to Lot No. 2; thence with
the line of the same
a straight line parallel to the line of the lot formerly
owned by Tobin Stover [also known as the Daniel Boone lot], N 10 30 W 150
feet to a stake on an alley to a right-of-way, conveyed by Stansbury, Callaway & Scott,
Inc. [sic] a corporation, to Claude Jarrett. . . .” (Emphasis added.)
Wentz determined that the line N 10° 30' W 150 feet was not parallel to
the line of the lot formerly owned by Tobin Stover; therefore, he assumed that
the call to a line N 10° 30' W 150 feet must have been a typographical
or clerical error. Relying on this assumption, he prepared a survey map setting
the boundary line between the Beckett parcel and the Simpson- Via lot parallel
to the Tobin Stover/Daniel Boone lot, now following a call of N 18° 30'W
150.16 feet rather than the call of N 10° 30'W 150 feet contained in both
deeds.
(See footnote 7)
Thereafter,
Via and the Becketts tried, without success, to resolve the alleged encroachments
and the growing property dispute. Indeed, Mr. Beckett ultimately commissioned
Snodgrass to draw up yet another map, this time with a proposed boundary adjustment
which would remedy all the encroachments. No compromise was reached. Based upon
Wentz's findings, Via filed suit in the Circuit Court of Raleigh County on July
24, 2000, seeking damages in the amount of $10,000. Via's complaint alleged trespass,
asserting that the Becketts knew of the encroachment but did nothing to remedy
it. The Becketts filed a timely answer on August 2, 2000.
On August
19, 2002, the Becketts filed a Motion for Summary Judgment.
(See
footnote 8) A hearing was held regarding the motion on August 29,
2002, at which time the Becketts argued that there were no material issues of
fact in the case because the call to the line N 10° 30' W 150 feet was found
in both the deeds for the Beckett parcel and the Simpson-Via lot; therefore,
the Becketts contended, it was a monument to be given the highest authority.
Via argued that the accuracy was open to question because of the other language
in the Beckett deed calling for a line parallel to the Tobin Stover/Daniel Boone
lot and calling for certain
distances which could not be reconciled with the call of line N 10° 30'
W 150 feet. Via asserted that this alleged discrepancy left open a question
of fact.
On September
30, 2002, the circuit court issued an Order Granting Partial Summary Judgment
in favor of the Becketts. Among other things, the circuit court found that both
surveyors, in deposition testimony, agreed that the call bearing N 10° 30'
W 150 feet was a monument. Finding this call to be a monument, the circuit court
concluded “that there is no genuine issue of a material fact concerning
the line because it is undisputed that the common line given in the deeds for
both [the Beckett parcel] and [the Simpson-Via lot] is a monument and is given
the highest priority in items to consider in ascertaining a boundary line.” The
court noted that the issues of encroachment and adverse possession remained viable,
however.
For some
reason, neither party received notice of the circuit court's decision until January
31, 2003, when the parties came before the circuit court on a Motion to Join
an Indispensable Party. After the parties were made aware of the Order Granting
Partial Summary Judgment, they agreed that the Order Granting Partial Summary
Judgment, in fact, denied the relief sought by Via and effectively dismissed
the case. The line established by the Order left encroachments by Via on the
property of the Becketts. However, the Becketts had not counterclaimed for any
encroachments on their property. Furthermore, because the
encroaching buildings had been in existence since the 1920s or early 1930s,
the Becketts agreed that they could not ask that they be moved. Accordingly,
an Order of Dismissal was entered on February 26, 2004.
Via now
appeals the February 26, 2004, Order of Dismissal arguing that in its September
30, 2002, Order Granting Partial Summary Judgment, the court erred in finding
that Wentz agreed that the call to line N 10° 30' W 150 feet is a monument,
in failing to consider and give proper weight to the true intention of the common
grantor in determining the line dividing the Beckett and Via properties, and
in concluding that identical courses and distances calls in deeds to adjoining
tracts are monuments.
II.
STANDARD OF REVIEW
This
Court has held that “'“[a]ppellate review of a circuit court's order
granting a motion to dismiss a complaint is de novo.” Syl. Pt.
2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va.
770, 461 S.E.2d 516 (1995).' Syl. Pt. 1, State ex rel. Smith v. Kermit Lumber & Pressure
Treating Co., 200 W.Va. 221, 488 S.E.2d 901 (1997).” Syl. Pt. 1, Bowers
v. Wurzberg, 205 W.Va. 450, 519 S.E.2d 148 (1999). Similarly, this Court
recently held in Syllabus Point 1 of West Virginia Dept. of Transp., Div.
of Highways v. Robertson, No. 31770, 2005 WL 1124401 (W.Va., May 10, 2005)
that “[a]ppellate review
of a partial summary judgment order is the same as that of a summary judgment
order, which is de novo.” See generally, Syl. Pt. 1, Painter
v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit
court's entry of summary judgment is reviewed de novo.”) With those
standards in mind, we turn now to a discussion of the facts as they apply to
the law in this case.
III.
DISCUSSION
This
Court has held that “'“'[a] motion for summary judgment should be
granted only when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to clarify the application
of the law.' Syl. Pt. 3, Aetna Casualty & Surety Co. v. Federal Insurance
Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syl. Pt. 1, Andrick
v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).' Syl. Pt.
1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).” Syl.
Pt. 4, Pritt v. Republican Nat. Committee, 210 W.Va. 446, 557 S.E.2d
853 (2001). Here, it is clear that there is no material issue of fact in dispute
such as would require a trial to determine the boundary line between the Beckett
and Via properties. As found by the circuit court below, the boundary line
is clearly delineated in both deeds by the call to line N 10° 30' W 150
feet. That is the only material fact to this boundary issue. Since we conclude
that there is no dispute as to this material fact, there is no need nor requirement
for trial on the
matter. “'[S]ummary judgment is appropriate if, from the totality of the
evidence presented, the record could not lead a rational trier of fact to find
for the nonmoving party, such as where the nonmoving party has failed to make
a sufficient showing on an essential element of the case that it has the burden
to prove.' Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52,
459 S.E.2d 329 (1995).” Syl. Pt. 3, Kiser v. Caudill, 215 W.Va.
403, 599 S.E.2d 826 (2004). Given that the boundary line is located at N 10° 30'
W 150 feet and given that the placement of that line undisputedly does not
cause any encroachment by the Becketts on Via's property, Via has failed to
make a showing of trespass by the Becketts. Therefore, we find that summary
judgment was appropriate in this case.
A. Wentz's Testimony as to the Call to Line N 10° 30'
W 150 feet
Via's
first argument raises the issue of whether the lower court erred in finding
that Wentz agreed that the specific call to line N 10° 30' W 150 feet
is a monument establishing the property line between the east side of the Beckett
parcel and the west side of the Simpson-Via lot. Via argues that while Wentz
agreed (and Via concedes) that calls to an adjoining property line are monuments,
he (Wentz) did not agree that the call to line N 10° 30' W 150 feet is
a monument. Via argues that Wentz did not believe that the line N 10° 30'
W 150 feet was the correct call for the boundary between the Beckett parcel
and the Simpson-Via lot. Rather, Via contends, Wentz believed that the language
in the deed called
for the boundary line to be parallel to the boundary line between the Tobin
Stover/Daniel Boone lot and the Beckett parcel. The line N 10° 30' W 150
feet is not parallel to the boundary line between the Tobin Stover/Daniel Boone
lot and the Beckett parcel (the west side of the Beckett parcel).
The record,
however, confirms that Wentz did agree in his deposition testimony that a common
call line in separate deeds is a monument and that in this case, the line N 10° 30'
W 150 feet was such a monument:
Counsel
for the Becketts: Now, both the original deed from Stansbury, Callaway and
Scott to Lewis and the trust deed from France [sic] to Callaway Scott which is
the Via property, the original deeds and descriptions, both called for the exact
same line, North 10 30 West between the two. Both refer to that line as being
the boundary and that's what they say, so that's a natural description and monumented
in each deed. Isn't that correct if they call for the same line and describe
it?
Wentz:
Yes.
Counsel
for the Becketts: And both of them are North 10° 30 West 150 feet?
Mr.
Wentz: Yes.
Via contends that this particular line of questioning was convoluted and hard
to understand. He contends that Wentz, in his answers to these questions, agreed
to nothing more than that the line described in both deeds was the line of
N 10° 30' W 150 feet. Via asserts that
otherwise in his testimony, Wentz maintained that he believed that that description
of the line did not accurately describe the location of the boundary between
the Beckett parcel and the Simpson-Via lot. Nevertheless, the line, described
identically in both deeds, is what it is.
Via further
argues that Wentz continuously pointed out that, in conducting his survey, he
(Wentz) focused (a) on the language in the Beckett deed describing the boundary
line between the Beckett parcel and Simpson-Via lot as “parallel” to
the Tobin Stover/Daniel Boone lot and (b) on the language describing the distances
between certain monuments and markers because they were more easily reconciled
to one another. Via argues that where the distance is more easily reconcilable
with the other evidence in the deed than the course may be, it is more appropriate
to follow distance over course.
“'It
is a general rule that, in locating boundaries of land, resort is to be had first
to natural landmarks, next to artificial monuments, then to adjacent boundaries,
and last to courses and distances.' Syl. Pt. 1, Matheny v. Allen, 63 W.Va.
443, 60 S.E. 407 (1908).” Syl. Pt. 7, Blain v. Woods, 145 W.Va. 297,
115 S.E.2d 88 (1960). In West Virginia Pulp & Paper Co. v. J. Natwick & Co.,
et al., 123 W.Va. 753, 21 S.E.2d 368 (1941) this general rule was explained,
adding that course controls over distance or distance over course “according
to the circumstances.”
In the
instant case, there are no natural landmarks by which to mark the line between
the Beckett and Via properties. The only artificial monument marking the line
between the two properties is a nail placed at the corner of the properties (along
East Main Street) by Wentz when he performed his survey for Via. Next, adjacent
boundaries are considered in identifying the property line. Here, the deeds for
both the Beckett parcel and the Simpson-Via lot identify the same adjacent property
line originating from a common starting point, which is a stake located at the
corner of Lot 1 (the Beckett parcel) and Lot 2 (the Simpson-Via lot). That is,
the Beckett deed calls for the eastern boundary of the Beckett parcel to be located
at the line N 10° 30' W 150 feet. Likewise, the Simpson-Via deed calls for
the western boundary of the Simpson-Via lot to be located the along the same
line, N 10° 30' W 150 feet. Matheny dictates that this adjacent boundary
be given priority over distances. In other words, as the circuit court found
below, this adjacent boundary line must be used to determine the remainder of
the Beckett and Via properties before resort to the distance calls that Via would
seek to use. Again, the line is what it is.
B. The Intention of the Original Grantor
Via
next argues that it was error for the circuit court to hold that the common
metes and bounds description in the deeds to the Via and Beckett properties
was a monument. Via asserts that it is likely that the matching descriptions
simply resulted from
the common grantor's use of the descriptive language used in the senior grant
(the Via property) when drafting the description of the junior grant (the Beckett
parcel) without first checking the accuracy of the description of the line
through a survey. Via further asserts that a trace of the deeds to the Beckett
parcel and the Simpson-Via lot reveals Stansbury's intent to subdivide the
lot into three equal and parallel tracts. To support this proposition, Via
relies on the language in the deeds calling for a line parallel to the Tobin
Stover/Daniel Boone lot marking the eastern boundary of the Beckett parcel
and calling for equal frontage of the three tracts on East Main Street. The
Court, however, finds this argument disingenuous because the survey maps show
that the greater tract from which the Beckett and Via properties were carved
is shaped such that it would simply not be possible to divide the tract into
three equal and parallel tracts. Via's argument is, without more, based on
speculation.
Via argues
that “'[i]n construing a deed, will or other written instrument, it is the
duty of the court to construe it as a whole, taking and considering all the parts
together, and giving effect to the intention of the parties wherever that is
reasonably clear and free from doubt, unless to do so will violate some principal
of law inconsistent therewith.' Syl. Pt. 1, Maddy v. Maddy, 87 W.Va. 581,
105 S.E. 803 (1921).” Syl. Pt. 2, Belcher v. Powers, 212 W.Va. 418,
573 S.E.2d 12 (2002). We agree. However, it is abundantly clear from this record
that, construing the deeds as a whole, it was the intention of the original grantor
that the line marking the boundary between the Beckett and Via properties be
placed at N 10° 30'
W 150 feet since this is reflected in both deeds, not that the Beckett parcel
be a parallelogram as determined by the line of the Tobin Stover/Daniel Boone
lot when equal and parallel lots simply are not possible.
We note
also that the Simpson-Via lot was the senior “out conveyance” from
the larger tract, and there is no ambiguity in its deed description. The description
of the line N 10° 30' W 150 feet causes no problem in reconciling the other
calls in the description of the Simpson-Via lot. Rather, it is the language of
the deed description for the Beckett parcel that holds discrepancies, namely
that the boundary line between the Beckett parcel and Simpson-Via lot be parallel
to the Tobin Stover/Daniel Boone lot on the western boundary of the Beckett parcel.
Distilled to its essence, Via seeks to benefit from a discrepancy in the Beckett
deed description when his own deed description_the senior deed description--is
unambiguous and specifically sets the mutual boundary at N 10° 30' W 150,
identical to the boundary call set forth in the Beckett deed.
A review
of the property reveals that it makes no sense to give meaning to the language
relied on by Via calling for the eastern boundary line of the Beckett property
to be parallel to the Tobin Stover/Daniel Boone lot because to do so would create
a pie-shaped gap between the Beckett parcel and the Simpson-Via lot. Such a result
cannot have been the intention of the original grantor. Given the mutual call
of N 10° 30' W 150 feet in both
deeds, the pie-shaped gap which results from Via's argument, and the lack of
any other evidence of a contrary intention, we find that the court below did
not err in finding that the intention of Stansbury was to set the boundary
between the Beckett parcel and the Simpson- Via lot at the line N 10° 30'
W 150 feet. We turn to Via's third argument.
C. Identical Courses and Distances Call in Deeds as Monuments
Via's
final argument is that the lower court erred in concluding that identical courses
and distances calls in deeds to adjoining tracts are monuments. Via asserts
that the law in West Virginia is that when a deed description uses an adjoining, undisputed property
line as part of the description of the property, then that adjoining property
line itself becomes a monument. Via again argues that although there is a shared
course and distance description of a line here (N 10° 30' W 150 feet),
the location of that line is still in dispute. As we have explained, it is
not.
Via correctly
notes that “[i]n ascertaining a disputed boundary the calls in the respective
deeds cannot be disregarded, if they can be applied and harmonized in any reasonable
manner.” Syl. Pt. 1, Somon v. Murphy Fabrication & Erection Co.,
160 W.Va. 84, 232 S.E.2d 524 (1977). See also, Gauley Coal Land Company v.
O'Dell, 144 W.Va. 730, 736, 110 S.E.2d 833, 837 (1959). The Somon case
is particularly interesting because it
involved a property dispute wherein the two deeds in issue called for almost
identical lines: The Somon deed called for a line “. . . thence S. 47
48 W. 275 feet; thence thence [sic] S. 72 48 W. 217 feet to a stake; thence
across Painter [sic] Run N. 31 12 W. 783.75 feet. . . .” Likewise, the
Murphy deed called for a line “. . . thence with the Hillside, south of
Painters Run, S. 47 48 00 W. 273.0 feet and south 72 48 00 W. 217.00 feet;
thence leaving said hillside and crossing Painters Run, N. 31 12 00 W. 683.75
feet to a point in a fence line; . . . .” Somon, 160 W.Va. at 86-87,
232 S.E.2d at 526-527. In Somon, we noted that, except for the two-foot
difference in distance manifested between the two calls of S. 47 48 E., which
we did not regard as significant, the two lines were in common. Somon,
160 W.Va. at 88, 232 S.E.2d at 527.
The Court
went on to observe, “Here not only were the calls in the two deeds in harmony
in the disputed area, but both deeds gave the same call for crossing Painters
Run from a line that was south of it. . . . Thus, we have a concurrence of the
calls in the two deeds along the disputed area, coupled with a parallel crossing
on the same line of Painters Run, all of which serve to establish the common
boundary. . . .” Somon, 160 W.Va. at 88-89, 232 S.E.2d at 527-528.
Here the deeds for the Beckett and Via properties similarly call for the same
line of the same distance; that is, N 10° 30' W 150 feet. Moreover, they
both reference the same point from which that line extends: a stake at the corners
of the Beckett
parcel and the Simpson lot. Quite simply, these two identical calls cannot
be disregarded when they can be applied in a reasonable manner.
“'Calls
in a deed for an adjoining tract of land are calls for a monument, and where
the location of such adjoining tract of land is certain it becomes a monument
of the highest dignity.' Syl. Pt. 4, Vandall et al. v. Casto et al., 81
W.Va. 76, 93 S.E. 1044 (1917).” Syl. Pt. 2, Westover Volunteer Fire Dept.
v. Barker, 142 W.Va. 404, 95 S.E.2d 807 (1956) (rehearing denied March 5,
1957). Via argues that Vandall does not apply to the instant case because,
in fact, the boundary line between the Beckett parcel and the Simpson lot is
in dispute. It is not. Although Via wants to dispute the line, there is
no real dispute. Both the Via and Beckett deeds call for the same boundary line
of N 10° 30' W 150 feet. That line's location can be easily ascertained,
and so “it becomes a monument of the highest dignity.” The record reveals
no genuine issue of material fact.
If
there is no genuine issue of material fact with regard to the location of the
boundary line between the Beckett parcel and the Simpson-Via lot, and if the
location of the line does not create a trespass by the Beckett's on Via's property,
then no contestable issues arise from Via's complaint. Indeed, there remains
no complaint at all.
IV.
CONCLUSION
Having
established that there remains no issue of material fact to be determined through
trial or any other issues to sustain Via's complaint, this Court finds that
it was not error for the Circuit Court of Raleigh County to enter an Order
dismissing the case based upon its entry of an Order Granting Partial Summary
Judgment in favor of Appellees.
Appellant designated that
the entire record be submitted with the appeal. It was later discovered that
the original case file did not contain the Appellees' Motion for Summary Judgment,
the disposition of which is at the very heart of this appeal. It would appear
from the transcript of a hearing conducted on August 19, 2002, that the Motion
was filed that morning, perhaps just before the hearing began. For whatever
reason, the Motion is not to be found in the original case file.
Footnote: 2 The 1924 Stansbury-to-Lewis
deed contained a slightly different description of the parcel:
Beginning
at a stake on the northeast edge of Neville Street, a fence post and corner to
Daniel Boone; thence with said Street N 65 10 E 47 1/10 feet to a stake, corner
to Lot No. 2; thence with the line of the same a straight line parallel to the
line of the lot formerly owned by Tobin Stover, N 10 30 W 150 feet to a stake
on an alley to a right-of-way, recently conveyed by by [sic] the party
of the first part to Claude Jarrett; thence a straight line parallel to East
Neville Street and 150 feet distant thereto and with said right-of-way about
49 1/3 feet to a stake in the line of the fence of Daniel Boone, and thence with
his line about 150 feet to the place of beginning.
Footnote: 3 Appellant Via asserts in
his brief that he obtained the first two parcels (from James Ansel Lilly) on
May 10, 1996; however, Appellees Beckett assert that Mr. Via obtained the first
two parcels on May 10, 1995. The Lilly-Via deed is not part of the record in
this case, so this Court will have to assume that Mr. Via knows when he obtained
the property.
Footnote: 4 The record also does not
contain the Simpson-Via deed.
Footnote: 5 Though Snodgrass was only
preparing a survey of the Lilly-Via lot, he did research the surrounding lots,
including the Simpson-Via and Beckett lots, in order to determine how the area
was laid out and where the Lilly-Via lot boundaries should be placed.
Footnote: 6 That is, the deed description
for Appellees' Beckett parcel called for a line beginning at the “corner
of Lot 2,”which is the Simpson-Via lot, “N 10 30 W 150 feet to a
stake on an alley to a right-of-way, conveyed by Stansbury, Callaway & Scott,
Inc. [sic] a corporation, to Claude Jarrett.” The description for the
Simpson-Via lot called for a line “[b]eginning at a stake at the intersection
of East Neville Street, with East Park Avenue thence with East Park Avenue
N 10 30 W 150 feet to a stake, a corner to Lot No. 1,” which is the Beckett
parcel.
Footnote: 7 The line N 18° 30'W
150.16 feet was actually not parallel to the line of the lot formerly owned
by Tobin Stover. However, it was closer to being parallel than the line N 10° 30'
W 150 feet.
Footnote: 8 Again, the Motion is not
a part of the case file or record as presented to this Court. It is, however,
mentioned in the transcript of the August 19, 2002, pretrial hearing held before
Judge Hutchison. That transcript indicates that the Motion was filed that morning.
The Motion is acknowledged in the transcript of the August 29, 2002, hearing
on the Motion for Summary Judgment.