West Virginia Pulp & Paper Co. v. J. Natwick & Co.

21 S.E.2d 368, 123 W. Va. 753, 1941 W. Va. LEXIS 94

• Court: West Virginia Supreme Court
• Decided: December 9, 1941
• Docket: 9216
• Status: Published

Opinions

Riley, Judge:

In this action of ejectment the defendants, J. Natwick & Company, a corporation, and others prosecute error to a judgment of the Circuit Court of Randolph County, overruling their demurrer to the evidence, interposed after the introduction of all the evidence, and entering judgment on a conditional verdict for the plaintiff, West Virginia Pulp & Paper Company, a corporation.

Guiding the appraisement of this case are several well-established principles of law, applicable to every ejectment case in which the defendant demurs to the evidence. Upon such demurrer all reasonable inferences from all the evidence introduced at the trial should be considered by the court in favor of the demurree, but, if de-murrant’s evidence on a decisive point conflicts with that of demurree and plainly and decidedly predominates in demurrant’s favor, the demurrer should be sustained and judgment rendered thereon for demurrant. Conner v. Jarrett, 120 W. Va. 633, pt. 3, Syl., 200 S. E. 39; Bluefield Milling Co. v. Western Union Tel. Co., 104 W. Va. 150, 139 S. E. 638, 55 A. L. R. 636; Miller v. Johnson, 79 W. Va. 198, 90 S. E. 677; Barrett v. Raleigh Coal & Coke Co.., 55 W. Va. 395, 47 S. E. 154; Bowman v. Dewing & Sons, 50 W. Va. 445, 40 S. E. 576; Mapel v. John, 42 W. Va. 30, 24 S. E. 608, 32 L. R. A. 800, 57 Am. St. Rep. 839. Notwithstanding a demurrer to the evidence, the burden of proving title and locating land in an ejectment case rests on the plaintiff. Conner v. Jarrett, supra, 640; Rock House Fork Land Co. v. Gray, 73 W. Va. 503, 80 S. E. 821; Bowman v. Dewing & Sons, supra. In sustaining this burden of proof, a plaintiff in ejectment who relies upon title and not adverse possession must recover on the strength of his own title and not upon the weakness of that of defendant. Conner v. Jarrett, supra; Wm. James Sons Co. v. Hutchinson, 73 W. Va. 488, 80 S. E. 768; Taylor v. Russell, 65 W. Va. 632, 64 S. E. 923; Wade v. McDougle, 59 W. Va. 113, 52 S. E. 1026.

Plaintiff claims that its title to the property involved Originated under a grant dated February 22, 1799, from the Commonwealth of Virginia to Bowler Cocke of two thousand acres of land, surveyed for Simon Nathan, December 10, 1787, and referred to in later conveyances as Lot No. 12; that this tract, together with other tracts in the Nathan survey, having been returned delinquent for taxes in the name of Cocke, was conveyed to Richard W. Barton by John W'. Crawford, Clerk of the County Court of Randolph County, under a tax deed dated April 30, 1853; that the Crawford deed recites that the lands had been sold for taxes, delinquent in the name of Bowler Cocke, for the years 1832 to 1839, inclusive, and purchased in October, 1840, by the Sheriff in behalf of the Commonwealth for the amount of taxes and damages due on each tract; that on October 27, 1845, said lands were again offered for sale and purchased for the commonwealth; that Richard W. Barton by his last will and testament, dated January 14, 1860, devised the land to his executors with power to sell; that after transition through a chancery suit in Randolph County, entitled “Geo. McIntosh v. R. W. Barton’s Administrator” (the record of which was omitted from the instant record by stipulation of counsel) , and the death intestate of Caroline M. Barton, Richard W. Barton’s wife, the title became vested in Joseph M. Barton and others, and thereafter devolved upon A. H. Winchester by two deeds, one dated December 12, 1885, from Joseph M. Barton and others, and the other dated December 13, 1886, from Claude Goff, Special Commissioner. '

Plaintiff also introduced, as a part of its chain of title, a deed from George McIntosh to Richard W. Barton, dated April 5,1855, purporting to convey five tracts of two thousand acres each of the Nathan survey, including Lot No. 12. This deed referred to a deed from William Loyall to said McIntosh, recorded in Randolph County in “Book ‘9,’ Page 443.” The Loyall deed, dated June 13, 1826, pur ports to convey five trácts of two thousand acres each granted to “Bowler Cocke,” but does not give any lot numbers, though it gives four lines and corners similar to the calls given in the original grant from the Commonwealth of Virginia to Cocke, dated February 22, 1799. The record here, however, does not show any conveyance of Lot No. 12 from Cocke, but the Loyall deed recites that Cocke conveyed “said several tracts” on June 30, 1799, to John Bell; that John Bell, by deed dated October'31, 1803, conveyed said tracts to William Davis; that Davis “transmitted by devise or descent” said tracts to his daughter, Ann Whittle; that she and her husband conveyed them to the United States of America; and that the Loyall deed was made pursuant to a decree of the United States Circuit Court.

Defendants say that between the last purchase by the Commonwealth for taxes (1840) and the Crawford tax deed (1853), the Commonwealth issued its patent in the year 1847 to William Logan for a one thousand-acre tract, covering a part of the original Nathan survey, and including a 315-acre tract under which they derived their title, and that because the Logan grant, under which they claim, antedated the Crawford deed to Barton, under which plaintiff claims, the latter to prevail must trace its title to the Commonwealth. It is strenuously contended that plaintiff has failed to do so, whether it seeks to prevail under the line of title which leads through the Crawford tax deed or under that which leads through the Loyall deed. This position is not without merit, for the reason that the line of title through Loyall, so far as the record title is concerned, does not reach back to the original grantee, Cocke, and that if reliance is had upon the chain of title running through the Crawford deed to Richard W. Barton, the Logan grant came from the Commonwealth of Virginia by grant which antedates the deed from the Commonwealth to Barton. In an action of ejectment where the plaintiff relies upon paper title, he must either connect title to a senior grant from a common source or by an unbroken chain of title to the Commonwealth or the State. Furbee v. Underwood, pt. 1, Syl., 107 W. Va. 85, 147 S. E. 472; Winding Gulf Collieries Co. v. Campbell, 72 W. Va. 449, 78 S. E. 384. See generally, note to Jennings v. Marston, 121 Va. 79, 92 S. E. 821, 7 A. L. R. 855, 860-889, inclusive.

However, the solution to this problem lies in the fact, as we shall discuss later, that this is a case of adjoiner and not interlock, and the plaintiff, under the Barton deed, notoriously, continuously, adversely, and exclusively, for the period of the statute of limitations for land, has held the land embraced in that deed. Not only did it enter into actual possession of the land, but in addition it erected buildings, operated a coal mine and maintained a boarding house used by its employees. This occupancy was of such a substantial nature that it constitutes the kind of possession we think may be relied upon under a claim of adverse possession. True, plaintiff did not actually occupy the land in controversy, nor did the defendants.

In this State, it is well settled that “color of title, for the purpose of adverse possession under the statute of limitations as to land, is that which has the semblance or appearance of title, legal or equitable, but which is in fact no title. Any written instrument, however defective or imperfect, no matter from what cause invalid, purporting to pass or convey title to land, which defines the extent of the claim under it, is color of title.” Swann v. Thayer, pt. 1, Syl., 36 W. Va. 46, 14 S. E. 423. The principal purpose of color of title, this Court has held in cases too numerous to be conveniently mentioned, is not to show an actual grant of the land or any interest therein, but to designate the boundary of plaintiff’s claim. Goad v. Walker, 73 W. Va. 431, 80 S. E. 873; McQueen v. Ahbe, 99 W. Va. 650, 130 S. E. 261. It follows that if plaintiff here succeeds in locating the adjoining lines on the ground, it will be entitled to prevail notwithstanding its title to a common source or the Commonwealth or the State may not have been traced. Riffle v. Skinner, 67 W. Va. 75, 67 S. E. 1075; Wiley v. Hatcher, 70 W. Va. 92, 73 S. E. 245.

Defendants claim under a record title through the William Logan grant to the aforementioned 315-acre tract, which is referred to throughout the record by the names of various owners in line of title, i. e., as the A. C. Logan, the Snyder or the Wilson tract of land. Although enclosed by more than three lines this tract is substantially triangular in shape, its southeastern boundary forming its base. This 315-acre tract was carved out of the tract embraced in the William Logan grant, under a survey made for A. C. Logan, one of defendants’ predecessors in title. The call in the William Logan grant, which provoked this litigation, runs from a point described as “2 beeches and a number of pointers between 2 small drains. Thence S. 50° E. 100 poles to a Thorn and yew and beech pointers on the top of said [Cheat] mountain.” Plaintiff contends the line should be run a distance of 102.72 poles to a large spruce marked as a corner, and defendants assert it should be run for an additional distance of 114.56 poles where the projected line crosses the crest of Cheat Mountain.

In the Barton deed these calls appear: “S. 47 W. 206 ps. to two beeches with pointers, a corner of a survey of 315 acres made for A. C. Logan, (now owned by Harmon Snyder), thence with said survey S. 49 E. 100 ps. to a yew pine and pointers, where a thorn is called for in said survey, thence S. 61, W. 260 ps. to a large sugar beech and yew pine on top of Cheat Mountain on a line of No. 12 of said Barton Land,” and running in reverse the deed contains the call: “Thence N. 64% W. 260 ps. to point on the top of Cheat Mountain on a line of a survey of 315 acres made for A. C. Logan and now owned by Harmon Snyder.” This last-mentioned point evidently is the same reached in the last of the three above-mentioned calls. Thus it can be seen that defendants’ land at the point in controversy adjoins plaintiff’s land. This is necessarily so because plaintiff has declared upon a single tract of land, and defendants have disclaimed two parts thereof in a disclaimer, which makes plaintiff’s land adjoin defendants!

This case, therefore, necessarily presents one of ad-joiner and not interlock. A call of a deed to the line of adjoiner in no case can make an interlock between the land conveyed thereby and the land of the adjoiner (Cummings v. Hamrick, 74 W. Va. 406, 82 S. E. 44); and a dispute between conflicting claims as to true lines and •corners does not of itself constitute an interlock. Robinson v. Sheets, 63 W. Va. 394, 61 S. E. 347; Oney v. Clendenin, 28 W. Va. 34, Storrs v. Feick, 24 W. Va. 606, 613.

Because the case is one of adjoiner and the defendants’ source of title is senior to the grant under which plaintiff claims title, it is necessary for plaintiff, in order to prevail, to establish the lines of the Snyder tract, which adjoin its lines at the' points in controversy. Miller v. Holt, 47 W. Va. 7, pts. 1 and 3, Syl., 34 S. E. 956; Yonker v. Grimm, 101 W. Va. 711, 133 S. E. 695. This case, therefore, is one in which plaintiff has the burden not only of proving title upon its own strength but also by establishing defendants’ adjoining lines.

The Logan grant (1847) is based on a survey made the preceding year, two reports of which were recorded on February 4, 1846. The first report appearing in the record bears the notation: “This Plott was rong.” A comparison of the calls of these reports of survey, as defendants’ petition for the writ of error and the record disclose, shows that in each report one call is missing: in the first, the call “S 59 W 268 poles to yew and beech,” and, in the second, the call “N 70 W 231 ps. to a beech & sugar and six beech pointers on the top of a ridge & on a line of Adam Sees 750 acre survey.” The grant, which contains eighteen calls, one more than either of the recorded reports of survey, includes both of the omitted calls. In this grant we find two other calls, which it is necessary to mention at this time, namely, “S. 60° E. 72 poles to 2 beeches and a number of pointers between 2 small drains [this point is an agreed corner designated as “A” in the reports and on the plats of the official surveyor appointed by the trial court] Thence S. 50° E. 100 poles to a Thorn and yew and beech pointers on the top of said mountain.” The first monument mentioned in the foregoing quotation is the same point as “the two beeches with pointers,” the corner called for in the Barton deed by the line “S. 47 W. 206 ps. to two beeches with pointers, a corner of a survey of 315 acres made for A. C. Logan”; and the call in the Logan grant “S. 50° E. 100 poles to a Thorn and yew and beech pointers on the top of said mountain” is the same as the call in the Barton deed: “S. 49 E. 100 ps. to a yew pine and pointers, where a thorn is called for in said survey.”

Under the orders of the trial court Owen Crickard, the county surveyor of Randolph County, made two surveys, one in April, 1938, and the other about a year later. He located certain points, surveyed certain lines, and protracted certain other lines which he thought advisable or as he was directed by the litigants. In the consideration of the surveyor's report, we take notice from the evidence that in the older surveys in Randolph County the word “yew” was used for “spruce,” though technically the words, as disclosed by modern dictionaries, designate different kinds of trees.

From point “A,” at plaintiffs direction, Crickard ran the course and distance in the Barton deed, with a three-degree variation, S. 46° E. with a yellow painted line. At a point 72.16 poles from the origin of this line he noted a spruce, marked for a center line with two hacks on each side, standing .24-poles to the left of the line. At plaintiff’s request, he blocked this tree and counted ninety-three annulations. He then continued the line for a distance of 102.72 poles from the beginning to a point .96 poles to the left of a large'spruce, marked as a corner, with markings showing a line entering from the direction of the last-mentioned course and another leaving in the direction of the next line in the Barton deed. Upon having been blocked, this tree also disclosed ninety-three annulations. About eight feet to the northwest of the spruce the surveyor noted a beech snag. The corrected bearing and distance required to run from point “A” to the spruce and beech, a point designated in the report and on the plats as point “B,” is S. 45° 30' E. 102.72 poles. From point “B,” at plaintiffs direction, the surveyor ran a line S. 64° W., a variation of three degrees from the course in the Barton deed. At 136 poles, he blocked a fallen spruce 2.28 poles to the left of the line; at 140 poles another spruce, standing approximately 2 poles to the left of the line; and at 155.12 poles a third spruce standing 2.88 poles to the left of the line. Each had eighty-four annulations. At 263.68 poles he came to a large sugar tree, stones painted yellow and red, with cherry and three beech pointers on the ridge of Cheat Mountain, which he designated in his report and on the plats by the letter “C.”

At defendants’ direction the surveyor extended the line “A” to “B” an additional distance of 114.56 poles to a point on the top of Cheat Mountain 467.11 feet higher than “B” which he designated on the plat by the figure “7,” where he found no markings of any kind. Because the top of the mountain was substantially level for a considerable distance near the top where the line “A” to “B” extended crosses the crest, he had to take twelve levels to locate point “7.” From point “7,” at defendants’ request, following the same bearing as that of “B” to “C,” namely, S. 64° W., he ran to point “9” a distance of 331.16 poles.

The discussion so far brings us to the exact factual question in controversy. Plaintiff contends the line “A” to “B” on the official plats should stop at the marked corner spruce, and that defendants’ southeasterly line, which adjoins plaintiff’s land, runs from “B” to “C”; but defendants say that the spruce marked as a corner at “B” should be disregarded and the line “A” to “B” extended to the point “7,” and that, therefore, defendants’ southeasterly line begins at “7” and runs S. 64° W. 331.16 poles to the point designated on the plat as “9.”

The official surveyor, at defendants’ direction, began at point “A” on the official plats and running from the calls of the A. C. Logan deed, reversed, with a four-degree variation, i. e., N. 56° W. 73.84 poles reached a point .72 poles left of a large maple, bearing three hacks. He then assumed the maple to be the one called for in the deed and corrected the bearing to N. 55° 30' W. to reach that point, which he designated on the map as “1,” an agreed point. Then he continued with the next call of the Logan deed reversed with four-degree variation N, 66° W. At 139.92 poles he passed four feet to the left of a large hemlock marked for a center line, and at 172 poles set a stake, the original beeches called for as the beginning corner in the A. C. Logan deed not being found. He then designated this point by the figure “2.” • This line, reversed, in the William Logan grant reads: “Beginning at 3 beeches corner to land of Washington G: Ward at the upper end of the Rich knobb & with his line S. 70° E. 172 poles to a birch','' yew and maple corner to Ward.” Point “2,” as shown on the plat, also an agreed point, is the beginning point of A. C. Logan 315-acre tract as the surveyor located it on the ground.

Using the lines “2” to “1,” “1” to “A,” “A” to “B,” and “B” to “C,” as designated on the plats, Crickard protracted the other lines in the William Logan grant and the A. C. Logan deed, platted the same and obtained a substantial closing of both. He then assumed that the S. 45° 30' E. line, “A” to “B,” should extend through “B” 114.56 additional poles to point “7,” and that the lines “7” to “9” and “9” to “10,” surveyed at defendants’ request, were correct; and, at plaintiff’s request, supplied the un-surveyed lines by protraction from the Logan grant. Official plat No. 2 shows he reached a point designated “41” thereon, which should have been the closing point. This point, on the basis of the scale designated on the plat of eighty poles to an inch, is about 100 poles or 1650 feet from the beginning point “2” as designated on said plat.

On the basis of plaintiff’s theory, the Snyder tract, as Crickard calculated it, has an acreage of 315.4 acres. Under defendants’ theory that the southeasterly boundary of the Snyder tract begins at point “7” and proceeds S. 64° W. 331.16 poles to the point “9” designated on the map; thence to point “10”; thence to point “11”; and prolonging the westerly boundary line of said tract from points “11” to “4” on the plat, as suggested by defendants, the tract would have an additional acreage of 212.52 acres, or a total of approximately 527.92 acres.

In order to effect a closing of the 315-acre tract, as suggested by defendants, it became necessary for the surveyor to run the line “7” to “9,” as shown on the plat, to a distance 331.16 poles, 67.48 poles longer than the line “B” to “C,” and 63.16 poles longer than the call in the Logan grant; and he was required to prolong the westerly line of the 315-acre tract from 340 poles, the distance in ■the A; C. Logan deed, to slightly more than 440 poles.'

•. Thus, if defendants’ theory is correct, it is necessary, to .effect a closing of the plat, that three lines of the Snyder tract be greatly extended; that its acreage be almost doubled; and.that the large corner spruce with its ninety-three annulations, indicating markings made about the year of the Logan survey, would have to be disregarded as a corner monument; and that if only line “A” to “B” is extended to “7,” the William Logan tract of one thousand acres, as we have suggested, will fail to close by one hundred poles.

But defendants’ counsel say that the top of Cheat Mountain at “7” on the plat is a natural monument which should control over courses, distances and quantity of the land. They rely upon the general rule that monuments, natural and artificial, prevail over courses and distances, or mistaken descriptions in surveys or conveyances; that, after calls for monuments, courses and distances are the most certain items of description, and that quantity is not generally important. Hutchinson’s Land Titles in Virginia and West Virginia, Sections 528, 529, 530, 531, 532, 536, 541. For a general statement of the rule, as established in this jurisdiction see pt. 1, Syl., Matheny v. Allen, 63 W. Va. 443, 60 S. E. 407, 129 Am. St. Rep. 984. How then can the call in the Logan grant, “Thence S. 50° E. 100 poles to a Thorn.and yew and beech pointers on the top of said mountain” be explained?

Counsel for plaintiff say that the first Logan survey was wrong, not only because it contains the notation, “This Plott was rong,” but because it left out the. course and distance “S 59 W 268 poles,” as well as one monument or corner; that the surveyor,, in the second report, in attempting to correct his first error, omitted the next succeeding course and distance, and transposed the monuments immediately preceding and following the course and distance “S 59 W 268 poles”; and that this error .of transposition was carried into the report of survey upon which the William Logan grant was later based. In other words, it is counsel’s contention that the monument “to a thorn and yew and beech pointers on the top.of said mountain” was moved ahead of the course “thence S 59 W” and the monument “to yew and beech” to a position immediately following, whereas the latter should have been inserted before the said course and distance, thus making the preceding call read, “thence S. 50° E. 100 poles to a yew and beech.” Thus, as we understand the contention, the two calls (beginning at point “A” on the plats of the official surveyor) should read: “thence S. 50° E. 100 poles to a yew and beech; thence S. 59° W. 268 poles to a thorn, yew and beech pointers on the top of said mountain.” This position is entirely plausible, but not of itself decisive of this case.

The record contains much evidence bearing on the question of the location of the thorn on the top of Cheat Mountain mentioned in the call “S. 50° E. 100 poles to a Thorn and yew and beech pointers on the top of said mountain.” Plaintiff says it was anciently located, on a low level place on the top of the mountain at point “C,” and defendants say that, though the official surveyor found no marked trees at point “7,” it was at that point in years gone by. Notwithstanding that, when the official surveys were made, there was no corner thorn at either of the two contested points, the evidence bearing on its former location is admissible. The location of a lost ancient land monument in an ejectment case may be proved by reputation. Faulkner v. Thorn, 120 W. Va. 575, 200 S. E. 581; Harriman v. Brown, 35 Va. 697, 8 Leigh 697, 707, 8 Am. Jur., Boundaries, Sec. 93.

The 315-acre tract was formerly owned by William H. Wilson and occupied by W. H. Painter, as the former’s caretaker and tenant. Both Wilson ¿nd Painter are dead. The defendant, G. W. Wilson, the son of William H., testified that the thorn, was formerly located at the top of the mountain at point “7” on the official plats. However, Bessie Steele, age forty-three, one of W. H. Painter’s daughters, testified that she lived on that part of the Wilson farm adjoining the Snyder tract from the time she was three months until she was thirteen or fourteen years of age; that in 1906 or 1907 her father pointed out to her a thorn stump near the top of the mountain “on a flat,” which he said was the “thorn corner” of the Wilson land, the line between Wilson and “the Spruce People * * * the Pulp & Paper Company, I guess it was.” She further testified that on the side of the mountain on which she lived there was a hacking known as the Wilson hacking (sometimes spoken of as the Snyder hacking), and on the other side one known as the Beard hacking, and that in order for one to get from the Wilson hacking to the stump, it was necessary to “get down off the top” of the mountain. H. T. Painter, W. IB Painter’s brother, testified that he helped remove cherry timber from the Beard and Snyder tracts; that the latter pointed out to him as a corner between the Beard and Snyder tracts a thorn located in a gap, a “little low place” “along the ridge running from the top of the mountain down to the Beard place”; and that two paths ran by the thorn tree, one leading to Rocky Run and the other down the ridge to the Beard hacking. Mrs. Hobart Steele, age forty-six, another of W. H. Painter’s daughters, testified that she lived on the Wilson property from the time she was three until seventeen years of age; that she had been at the thorn corner on a number of occasions prior to 1907, the year the thorn tree had been cut off flush with the ground; that the thorn had three notches on it; that a path connecting the Wilson and Beard hackings led past, and within a few rods, of the thorn; that on returning from hunting cattle on various occasions, when the party, including herself, arrived at the corner and the path which led by the thorn, her father, referring to the Snyder tract, would remark, “Well, we are on our land.” This witness also stated that she used the path in going fishing.

The surveyor, Crickard, also testified as to the existence of a path at point “C.” B. F. Cromer, age eighty-three, a former employee of plaintiff, who had been caretaker of its property for more than half a century, testified as to the location of a corner thorn at the low place in the mountain at point “C.”

The testimony of H. T. Painter, Mrs. Bessie Steele, Mrs. Hobart Steele and Cromer as to the declarations of William H. Wilson, deceased, and W. H. Painter, deceased, owner and tenant, respectively, of the 315-acre tract and the location of the thorn tree near the paths at point “C” is admissible. In an action in ejectment the declarations of a deceased owner of land are admissible, if they relate to a line or corner of his own land in the ascertainment of which he has an interest. State v. King, 64 W. Va. 546, pt. 9, syl., 63 S. E. 468, the error dismissed, King v. State of West Virginia et al., 216 U. S. 92, 30 S. Ct. 225, 54 L. ed. 396. If in other respects admissible and not made post litem motará, the rule applies with equal force to declarations made by a deceased tenant, if paper title in the landlord, as in the instant case, be shown. Pt. 9, Syl., State v. King, supra.

We think it is important that, notwithstanding defendants’ contention that the thorn formerly stood at point “7,” no witness testified to the existence of paths at that point, and that the testimony to the effect that the path connecting the Wilson and Beard hackings passed near point “C,” is substantially uncontradicted. Thus the record discloses a conflict of evidence bearing on the question whether the corner thorn in the monument in the William Logan grant “a Thorn and yew and beech pointers on the top of said mountain” was located at “C” or “7.” If this conflict is to be solved in defendants’ favor, the strong and uncontradicted evidence of the old corner spruce tree at point “B,” marked as a corner and showing an outgoing course leading in a general direction toward “C,” would have to be disregarded, although it is a monument of high dignity.

This case, therefore, should be distinguished from Conner v. Jarrett, supra, and Wiley v. Hatcher, supra. Those cases involved definite monuments, in the former a well-defined stream, the Mink Shoal Branch, and in the latter a sharp point of a mountain, well known to the people residing in the vicinity, called for in an ancient deed, “two white oaks on Cooper’s Point.” The record in the latter case was thoroughly studied and shows that the point was indeed a sharp crag at the top of a mountain, which could and evidently was determined without the use of a level. The natural monument in the Conner case could have been determined simply by the extension of a known line. In the instant case, because Cheat Mountain, where the line “A” to “B” extended reaches the crest at point “7” on the plat, is flat for a considerable distance near the top along the extended line, the surveyor had to take twelve levels in order to ascertain the mountain top at that point. The reason that monuments usually prevail over courses, distances and quantity of land is that the liability of error is ever present in the use of surveying instruments. Here, the surveyor, after ascertaining, with the aid of a level, the top of Cheat Mountain at the point contended for by defendants, found no markings or paths of any kind, whereas point “C” at the large sugar is also on top of the mountain and has been identified by substantial evidence as the place where the corner thorn called for on top of the mountain formerly stood near the path extending between the two hackings.

In the decision of this case, we are not required to and do not abrogate the well-settled rules governing the relative evidentiary value of monuments, courses, distances and quantity of land, which time and again this Court has applied in ejectment cases in ascertaining the location of land. This case is one simply involving the identity of monuments, which has been solved in plaintiff’s favor. The beginning point of the Logan survey, the terminus of the call from it, the call of the next line to “A” on the plat, and the line from “A” to the large corner spruce at point “B” hacked so as to indicate a course running in the general direction of the line “B” to “C” have been definitely determined by this record, and the lines and corners are agreed corners except as to point “B.” Under the facts disclosed by the record, would the jury have been justified in disregarding the claimed monument at point “7,” and establishing the lines from “A” to “B” and “B” to “C,” as shown on the official plats? This Court held, in the case of Palmer v. Magers, 85 W. Va. 415, pt. 9, Syl., 102 S. E. 100: “If one terminus of a disputed boundary line called for in a deed, is clearly fixed and rendered certain by evidence and the other unidentified and uncertain and a line run from such fixed corner agrees perfectly with the calls of the deed for course and distance, the former governs and controls the location of the other and the distance called for in another line running to it.” In Lewis v. Yates, pt. 2, Syl., 72 W. Va. 841, 79 S. E. 831, this Court held: “One or more monuments of a tract of land having been ascertained, the courses and distances are entitled to controlling effect in the location of others as to the identity of which the evidence is slight, circumstantial and conflicting.”

Under the demurrer to the evidence, showing, as it does, the clear identity of the marked corner spruce at “B,” the conflict of the evidence as to the former location of the corner thorn at “C” near the paths at a low place on the mountain, with that to the effect that its location was at point “7,” and the strong support which plaintiff has in courses, distances, and quantity of the land, we are prompted to hold that defendants have failed to establish the identity of the monument at the terminus “A” to “B” as extended to “7.” On the contrary, plaintiff, in our opinion, has sustained the burden of proving and locating defendants’ adjoining lines consonant with its theory of the case, and therefore is entitled to prevail.

For these reasons the judgment of the trial court is affirmed.

Affirmed.