Christian v. Bulbeck

90 S.E. 661, 120 Va. 74, 1916 Va. LEXIS 159
Supreme Court of Virginia·Decided November 16, 1916·Published·Cited by 24 cases

Opinion

Sims, J.,

delivered the opinion of the court.

This case is a proceeding at law under Acts of Assembly 1912, p. 133, by the appellee, plaintiff in the court below, against the appellants, defendants in the court below, by the following petition:

“Your undersigned petitioner, Marion Bulbeck, respectfully shows unto the court that in accordance with an act of the General Assembly of Virginia, approved March 4, 1912, contained in chapter 74 of the Acts of 1912, page 133, she is filing this, her petition, in your honor’s court for the [77]*77purpose of having determined the true* boundary line or lines to certain real estate, situated in the county of Amherst, of which your petitioner and C. Burks Christian and Sallie B. Christian, jointly, are the coterminous owners in fee simple, and as to which a dispute has arisen as to what • is the true boundary line or lines between your said petitioner and said Christians.

“Your petitioner shows unto the court that by deed dated June 28, 1893, recorded in Deed Book VY, page 57, of Amherst county clerk's office, one John H. Lewis and wife conveyed to your petitioner a tract of 48 acres of land on James river, in Amherst county, it being the same land conveyed to said Lewis by John C. Mundy, trustee, in deed dated October 20, 1891, recorded in Deed Book TT, page 521, of Amherst county, and the same land conveyed to John C. Munday, trustee, by Drewry J. Christian and wife, by deed dated August 20, 1873, and recorded in Deed Book JJ, page 222, of Amherst county, and the same land of which Stephen W. Christian, the father of said D. J. Christian, conveyed his life estate in deed of September 2, 1868, recorded in Deed Book GG, page 194, of Amherst county, and being a part of the same land allotted to Moaning Christian, the grandmother of the said B. J. Christian, and at her death partitioned among her children, a copy of which partition is herewith filed marked ‘Exhibit X' (See Will Book No. 9, pp. 416 and 422).

“Your petitioner further shows unto the court that the true location of the lines between her and said Christians has never been fixed and determined and that recently there has been litigation and disputes between them as to what is the proper location of said boundary lines.

“Your petitioner further shows unto the court that one J. C. Fulcher, as tenant of said C. B. Christian and said S. B. Christian, is cultivating, for the present year, a portion of the land, which, as your petitioner alleges and charges, is a [78]*78part of said boundary purchased by her and part of said land which is now in dispute.

“Your petitioner further shows unto the court that said C. B. Christian and S. B. Christian own said adjoining real estate in fee simple as two of the heirs of their father and as grantees of the remaining heirs; that originally the land of your petitioner and said Christians belonging to one Drewry Christian and allotted to his heirs and as dower to his wife Mourning Christian, of whom said C. B. Christian and S. B. Christian are descendants, and at the death of whom the said Mourning Christian was allotted the said tract of land contained in said plot filed herewith as ‘Exhibit X’, the other lands held by said Christians, adjoining your petitioner’s said......acres, being part of what was allotted to the heirs of said decedent.

“Your petitioner alleges and charges that the confusion in the location of this line is largely due to the fact that the parties owning the same' were related and no action was taken to determine what were the proper lines, and it has only been within the last two or three years that your petitioner was made aware of the fact that the true line had never been located.

“Your petitioner still further alleges and charges that she has made every possible effort to get the said Christians to agree upon the establishment of a line between the properties aforesaid; that she has even gone to the expense and trouble of purchasing the necessary material to build a proper fence so as to secure her own cattle and stock from trespassing and to prevent other people’s stock from trespassing upon her, but the said Christians have refused to agree upon a line or to permit her to put up a fence upon any line that has been run by surveyors employed by petitioner, going so far as to threaten violence toward any and all she employed to build such fence.

[79]*79“Your petitioner, therefore, asks and prays that this, her petition, shall be considered of by this honorable court at its next civil term, and in the meantime your petitioner asks that a competent surveyor, or surveyors, be ordered and directed to enter upon the premises in question and establish by such survey as may be deemed necessary the true boundary lines between the said several plots of land, the same to be used as evidence at the trial of this case, and that the true line between her and C. B. and S. B. Christian may be determined, and she may be given possession of such land as she is entitled to by the proper location of said line, with such damages for its retention as may be proper in accordance with the statute in such cases made and provided, and that all other proper relief may be granted her.”

There was a demurrer to the petition by defendants on several grounds, only one of which, however, is relied on here, which ground is as follows:

“The remedy, if any, of the plaintiff is one in ejectment.” Counsel for defendants, in their petition, in amplifying this ground of demurrer, take the following positions:

“The act approved March 4, 1912 (Acts 1912, page 133), gives the right to any person having an interest in real estate, to file a petition, and ‘have ascertained the true boundary line or lines to such real estate as one or more of the coterminous land owners/

“It is submitted that this act does not substitute the petition therein provided for, for an action of ejectment. A party can not come into court alleging that she has had a survey made of the land, and knows where the true boundary is, and ask the court to confirm her opinion, because, forsooth, some adjoining land owner is unwilling to admit that she is entitled to a piece of land of which he and Ms predecessors have been in possession for seventy-five years.

“To illustrate: If A owns and occupies a lot which is fenced in and B claims and occupies an adjoining lot, like[80]*80wise fenced in, A wiil not be heard by this sort of summary proceeding to have the court determine that his lines embrace B’s lot, and dispossess him thereof. If a party does not know where his lines are, he may, by this proceeding, have them ascertained and then institute his proceeding to recover what he does not have in possession if he so determine.

“This view is strongly fortified by the fact that the act contains no provision for possession, or for damages for the unlawful possession. It is impossible to believe that if the intention of the legislature had been to settle all questions of title that it would have failed to provide for a judgment for the possession and for damages.

“Again, the court is restricted by the act to ascertain and designate ‘the true boundary line or lines/ What is the ‘true boundary line’? The word ‘true’ is defined to mean ‘real,’ ‘exact,’ ‘accurate,’ ‘correct,’ ‘right,’ and in this sense it is used in the statute referred to.

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Christian v. Bulbeck, 90 S.E. 661, 120 Va. 74, 1916 Va. LEXIS 159 (Va. 1916).

90 S.E. 661 (Christian v. Bulbeck) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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