
    *Coles et als. v. Wooding.
    January Term, 1856,
    Richmond.
    Absent, Gilmer. J., and Tyler, J. — (Gilmer, J., had been counsel in the cause in the court below.)
    1. Boundaries — Marked Lines Preferred to Magnetic Lines — Exception—Mistake.—In questions of boundary, natural land-marks, marked lines and reputed boundaries, should be preferred to mere magnetic lines, which maybe described by mistake in deeds and surveys, unless it shall clearly appear that the marked line was made by mistake, unknown to, and therefore not acquiesced in, by the parties in interest. (Dogan v. Seekright. 4 Hen. & Munf. 125, and Smith v. Davis, 4 Grat. 50, accord.)
    2. Partition between Co=parceners — Deed Unnecessary. — Between co-parceners, deeds of partition of land are not necessary, though perhaps the better practice. They may mark and establish the dividing line between them, and prove it by other competent evidence, and they will be seized in severalty from the time of marking and establishing the line.
    3. Same — Boundary Actually Run and That Described in Deed Different — Effect of Acquiescence. — Where deeds of partition between co-parceners recited that a boundary line between them had been “run, made and established.” and the parties had continued in possession up to the line so run and established, from the date of the deeds, for twenty years, less two days, — when a writ of right was instituted between parties claiming under them, seeking to set up the boundary described in the deeds, which was different from the line actually run by the parties — it was held : That after such long acquiescence by one party, and quiet possession by the other, that possession ought not to be disturbed.
    On the 17th November, 1845, a writ of right issued from the Circuit Superior Court of Law for the county of Pittsyl-vania, in behalf of John Coles, against Thos. Wooding, for ten acres of land in the said county. On the death of Jno. Coles, the suit was revived in the name of his heirs, and at the May term of the court, 1848, the mise having been joined on the mere right, the jury found a verdict for the tenant. The demandants moved for a new trial, which the court refused, and gave judgment' for the tenant.
    The demandants excepted to the opinion of the court ^over-ruling the motion for a new trial, and filed a bill of exceptions, setting forth the facts proved on the trial, which the court certified, as follows:
    “The conveyance of John Coles to James Thompson Coles, under which James T. the tenant claims; a deed from Jacob T. Coles and wife to the tenant, and a deed from James T. Coles to John Coles, under whom the demandants, as heirs of the said John Coles, claim.”
    These three deeds were set forth in full in the bill of exceptions. The deed from James Thompson Coles to John Coles was dated the 19th November, 1825, and conveyed to John Coles ‘ ‘all that parcel of land situate, lying and being in what was formerly called Lightfoot’s Meadows, in the county of Pittsylvania, which was willed to the said Thompson Coles by Isaac Coles, his father, and which lies on the southwest side of the following line, run, made and established by the said Thompson and John Coles, ,viz : beginning at a willow-oak in Wm. Lewis’s line, thence south fifty-five degrees east, five hundred and fifty-seven poles, to a whiteoak in Richard Whitehead’s line.”
    And the deed from John Coles to James Thompson Coles was dated the 19th November, 1825, and conveyed to the said James Thompson Coles 1 ‘all that parcel of land situate, lying and being in what was formerly called Lightfoot’s Meadows, in the county of Pittsylvania, which was willed to the said John Coles by Isaac Coles, his father, and which lies on the northeast side of the following line, run, made and established by the said John and Thompson Coles, viz; beginning at a willow-oak in Wm. Lewis’s line, thence south fifty-five degrees east, five hundred and fifty-seven poles, to a white-oak in Richard Whitehead’s line.”
    The deed from Jacob T. Coles and.Nancy his wife, to Thomas W. Wooding, was dated the 22d September, 1843, and conveyed to Wooding “a certain tract or parcel of land, lying and being in the county of Pittsyl-vania, on Hickey’s road, about one mile below Chalk *Level, containing, by late survey, seven hundred sixty-four and one-sixteenth acres, which tract is bounded as follows: Beginning at an old pine stump on the south bank of the before-mentioned road, with Capt. Griffith Dickenson', senior; thence his line south 4 east, 2134 poles to an old pine stump on new pointers, with the same; thence his-in part and with Johñ Lewis, south 43, west 18534 poles to new pointers, on a small branch in said Lewis’s line, and with John Coles’s; thence his lines s. 55, e. 110 poles to an elbow in line, south 45, e. 19 poles to ditto; s. 55, e. 120 poles to ditto; s. 54, e. 306 poles to a fallen post-oak, or new pointers, with said John Coles and John Haley; thence with the latter north 37, east 6734 poles to new pointers with the same; thence his line north 1934, west 50 poles to an elbow in line; thence with the same and William B. Banks’s, north 18, west 67 poles, to pointers with said Banks’s; thence his line north 1, seat 46 poles to pointers; north 80, west 53 poles to a red-oak in a lane; north 6, east 43% poles to a stump also in line; thence with the same north 1434, east 135 poles to a forked red-oak with said Banks’s, on the before mentioned Hickey’s road; thence up said road, as it meanders, 342 poles to the beginning.”
    “The demandants then introduced Wm. Robertson, who, being duly sworn, proved that Jacob T. Coles and the tenant made a contract for the sale of a piece of land, embracing the land in dispute; the witness, a surveyor, was called on to survey a tract, embracing the land in dispute, with a view of ascertaining the number of acres, with a view of fixing the price, of the said land, which is the same land embraced; that the witness, along with the said Jacob T. Cotes, who claimed said land under said James T. Coles, and said Wooding, attended at the surveying of the said land; that the parties aforesaid commenced at a willow oak, in a plat which said Robertson said the said Jacob T. Coles and Wooding furnished him with; that he sat his com pass *at the willow-oak and .ran s. 55 degrees east, upon the course called for in the said plat and said deeds from James T. Coles to John Coles, and from said John Coles to James. T. Coles, which 'deeds were also then present; that he ran this course some distance, when Jacob T. Coles declared that he was not on the true course; that' the line was some twenty-five steps from the course he was running. Witness said that he was running the true course; that said Coles insisting he was wrong, said Robertson stopped, and went with Coles, and found some marked trees, which Coles said was on the true line. He returned to his compass, and to satisfy said Coles and Wooding that he was right, reversed the course, ran back to the willow-, oak, and found that the witness was right. He then ran the marked line, and found that the marked line diverged from the true course; then that it returned upon it, and continued with it until it reached the white-oak in Whitehead’s line; that the land in dispute is the land between what said witness proves is the true course, and the divergence therefrom, in the line marked as aforesaid; that said marked line seemed to have been marked twenty years or more; had been processioned once at least; that three-fourths of the land in dispute was at the time of said survey in cultivation by said Jacob T. Coles — the remainder was in woods — but all said land was then in the possession of said Jacob T. Coles; that said land was, at the institution of this suit, in the possession of the tenant, Wooding.
    ‘‘The court certifies, that it was proved that the true course is the one run by said witness, and that the marked line, found as aforesaid, is a divergence from the true course, as shewn by the compass, as above explained; that the land in dispute is embraced in the deed from Jacob T. Coles to the tenant Wooding; that the land in dispute is the land of the demandants, unless it belongs to the tenant.”
    The demandants appealed to this court.
    *Bouldin, for the appellants: '
    The main question in the cause is —Whether, where there are mutual conveyances, the line agreed upon by the parties by courses and distances, or an actual line run by mistake by the surveyor, is the true line? The law on this point was not settled at the time of the judgment of the court below, but has been decided since, in the case of Smith v. Davis, 4 Grat. 50. This case establishes, that the iine intended by the parties, not the one actually run, is the true line. In the case at bar, the points or corners were fixed, and a straight line was intended to be run between them. The curved line was the line run by the surveyor, and the straight line called for by the deeds of partition between John and Thompson Coles is the true" line. The ap-pellee had no adversary possession of the land in controversy, but claimed under the deeds. If he had, this is a writ of right, and twenty years had not elapsed after the. line was run, before the institution of this suit.
    No question was raised as to whether the appellants were the heirs of John Coles; but the court certifies that the land belonged to the demandants, if not to the tenant.
    The appellee claimed under Thompson Coles, but he deduced no title to Jacob Coles, from whom he derived title.
    Grattan, for the appellee:
    The bill of exceptions is defective, in certifying the testimony of the witness, instead of the facts proved. The court also certifies, that the demandants were entitled to the land, if the tenants were not, which question it could not decide, but should have certified the facts only. The heirship of the demandants must be shown; they are required to prove their title. Bell’s heirs v. Snyder et ais., 10 Grat. 350. It is there held, that the de-mandants must prove the character in which they sue.
    *It is well settled, that a marked line is to be preferred to a line by courses and distances. Here, if one course is omitted, the two lines concur. The case of Smith v. Davis, 4 Grat. 50, turned upon the proved intention of the parties, which prevailed. Here, there is no proof that the parties intended a line different from the line run.
    Patton, on the same side:
    The line actually marked, and subsequently processioned, was the true boundary between the lands of John and Thompson Coles. It was a line already run, made and established, when the deeds were executed, and the false description in the deed must be made to yield to the line actually marked by the parties. Shaw v. Clements, 1 Call, 429; Baker v. Seckright, 1 Hen. & Munf. 177; Dogan v. Seckright, 4 Hen. & Munf. 125. There is no rule of law giving the preference in all cases to one species of line over another. But each case depends upon its own circumstances. The line best established to have been intended by the parties, is the true line. That was all that the case of Smith v. Davis established. No deeds were necessary between John and Thompson Coles, who -were coparceners. The deeds between them recited, that the line had been run, made and established; and twenty years elapsed after the line was run, before the institution of the suit. As evidence, greater weight is given to natural objects. Smith v. Chapman, 10 Grat. 445. The jury have found the marked line to be the true line between the parties.
    Bouldin, in reply:
    The law is, as stated by the counsel of the appellee, that the intention of the parties is to govern. If the parties have run a crooked line, and improperly described it in the deed as a straight line, intending the crooked line, the crooked line is the line. Such intention is not shown here. The crooked line was run inadvertently^, and was not intended by either party. *When Jacob Coles was about to convey to Wooding, the surveyor, Robertson, was furnished with the original plat and deeds to run the line. Up to that time, when the surveyor attempted to run the line, Jacob Coles had supposed his line to be straight. He then first made the discovery that the marked line was crooked. All parties had supposed the line to be straight. That being the case, Smith v. Davis is conclusive for the appellants. No lapse of time could bar the parties, so long as the possession was under a mistake as to the line. It could not then have been adversary.
    
      
      Boundaries — Marked Lines Control Mere Courses and Distances. — In descriptions of lands, or questions of boundaries, the rule is settled in Virginia and West Virginia, that natural landmarks, marked lines, and reputed boundaries will control mere courses and distances or mistaken descriptions in surveys and conveyances. Adams v. Alkire, 20 W. Va. 486; Gwynn v. Schwartz, 32 W. Va. 496, 9 S. E. Rep. 883, both citing the principal case. To the same effect, see principal case cited in Clarkston v. Va. Goal and Iron Co., 93 Va. 260, 24 S. E. Rep. 937; footnote to Smith v. Davis, 4 Gratt. 50; foot-note to Marlow v. Bell. 13 Gratt. 527. For other cases in point, see these foot-notes.
      
    
    
      
       Partition between Co parceners — Deed Unnecessary. —To the point that deeds of partition between co-parceners are not absolutely necessary, the principal case was cited in Jennings v. Shacklett, 30 Gratt. 776; foot-note to Bryan v. Stump, 8 Gratt. 241; Bolling v. Teel, 76 Va. 496. In this last case, the court left it a query whether this rule had been changed by statute. But, by Code of 1887, it is expressly provided that no voluntary partition between co-parceners shall be made except by deed. Va. Code 1887, sec. 2413.
    
   CBOPTON, J.,

delivered the opinion of the court:

This was a writ of right between the appellants, as demandants, and the appellee, as tenant, in the Circuit Superior Court of Daw and Chancery for the county of Pitt-sylvania. They were owners of coterminous tracts of land, and the question in controversy between them is, which is the true dividing line between the tracts? Both tracts were formerly' parts of one entire tract, the property of Isaac Coles, who, by his will, devised it to his sons, John Coles and James Thompson Coles. The appellants are the heirs at law of John Coles, and the appellee claims under James Thompson Coles. On the 19th of November, 1825, John Coles, by deed, conveyed to James Thompson Coles “all the land which lies on the northeast of the following line, run, made and established by the said John and Thompson Coles, viz: Beginning at a willow-oak, in William Bewis’s line; thence, south fifty-five degrees, east five hundred and fifty-seven poles, to a white-oak in Richard Whitehead’s line;” and, on the same day, James Thompson Coles, by deed, conveyed to John Coles all the land which lies on the south-west side of the same line, and describing the line in the same words. A line of marked trees was run from one terminus to the other. It does not appear from the record at what time precisely this line was marked, or that the parties had the assistance of a surveyor in marking the line, or by whom the line was *actually marked.

In 1843, Jacob T. Coles, who claimed under James Thompson Coles, and was in, possession of the land assigned to him, and who had contracted to sell it to the ap-pellee, Wooding, had the land surveyed and, then, for the first time, it was discovered that the line of marked trees, mentioned in the two deeds of partition, as run, made and established by the parties, was. not a straight line, but a curved, line, diverging from a straight line, towards the south-west, or that side on which the land conveyed to John Coles lies. The area between the straight and marked lines contains about ten acres, which is the subject in contest between the parties. The prec-ipe, issued on the 17th of November, 1845, within two days of twenty years from the date of the deeds of partition. The surveyor, who made the survey in 1843, (and who seems to have been the only witness, examined,) proves that, at that time, the marked line seemed to have been marked twenty years or more, and that it had been processioned at least once; and that three-fourths of the land in dispute was then in cultivation by Jacob T. Coles, who was about to convey to the appellee. On the trial, there was a verdict and judgment for the tenant. After a motion for a new trial, which was overruled, a bill of exceptions was taken to the opinion of the court, and to the judgment a supersedeas was awarded.

In questions of boundary, natural land marks, marked lines, and reputed boundaries, especially if known to, and acquiesced in, by the parties interested, should be preferred when in opposition to mere magnetic lines, which may be described by mistake in deeds and surveys, (see Dogan v. Seckright, 4 Hen. & Munf. 125, and the cases, there cited,) unless it shall appear clearly that the marked line was made by mistake —a mistake unknown to, and therefore not acquiesced in, by the parties in interest; as in the case of Smith v. Davis, 4 Grat. 50, where the division was made by commissioners, who intended the dividing line-should be a straight line, and directed rhe surveyor so to run it; but the land *being covered with a thick wood, the surveyor, without intending it, ran and marked a curved line.

In this case, the marked line seems to have been marked by the parties themselves ; for, in their deeds of partition to each other, they describe the line as run, made and established by themselves; and it is not called a straight line. As thus marked, it was therefore known to -them, and acquiesced in by them; for John Coles was in life when the precipe issued, and must have known that Jacob T. Coles had the greater portion of the land in cultivation. If the date of the deeds of partition should be taken as the time when the parties became first seised in severalty, two days more would have barred the writ of right; but-, between parceners, deeds of partition, though the better practice, are not absolutely necessary; they may mark and establish the dividing line between them, and prove it by other competent evidence; and they will, from the time of marking and establishing the line, be seised in severalty. When John Coles and James Thompson Coles executed their deeds of partition, they say the line was then run, made and established; how long before does not precisely appear, but it was at least before the execution of the deeds; and it seems to the court, that after this long acquiescence by one party, and quiet possession by the other, that possession ought not now to be disturbed.

The court is therefore of opinion, . that there is no error in the said judgment, and that it be affirmed with costs.

Judgment affirmed.  