The case of Ward v. Marshall was decided in West Virginia just about 30 years ago and rests just outside of Beckley, West Virginia. John Denver was absolutely right about West Virginia. Anybody that has visited the hollers around Beckley can’t unhear that song. Okay, enough said and on with the case.
Let’s start by breaking down the rather lengthy syllabus Item 2 with some color commentary. “Where a deed calls for a line between monuments…” Okay this is sounding like a monument thing, “…as well as by course and distance…” Oh, wait we’ve got calls, “…one of which monuments is standing well marked and unquestioned…” Okay, I think I know where this is going, “…while the other has long since disappeared and its location is not definitely ascertained…” Yeah, I’m following, “…and surveyors differ in their locations of the latter…” Naturally. “…with the result that recent surveys, purporting to represent such line, materially vary…” Sure, why would I expect anything less? “….each being supported by measurements to and from other known monuments…” Well yeah, you’ll have that every now n’ again. “…thereby enveloping its true location in doubt and uncertainty…” I think we’re almost there. “…the solution of the conflict so presented is peculiarly within the province of a jury…” Okay, things are getting legal now. “…and its finding, in the absence of a clear preponderance of evidence to the contrary and of prejudicial error during the course of the trial…” Come on, stick a fork in this thing already. “…cannot properly be disturbed by the trial court upon motion or upon writ of error from this court.” Are you kidding me? That’s it? We went through every survey detail known to mankind just to ask if a lawyer did his job? Really?
Okay, here’s the stuff they didn’t teach us in civics class. The higher courts seem to shun the idea of overturning a trial court’s decision. Now in all fairness and in contrast to the long-windedness, syllabus Item 1 is very direct and gets right to that point. It reads “In a case where the evidence is such that the jury could have properly found for either party upon the factual issues, a motion for judgment notwithstanding the verdict should not be granted.” I’m thinking this was a real humdinger of a case if the court is saying it could have gone either way. In the Supreme Court’s words “Based on our review of the record, we find that an analysis of the deeds could not resolve the ownership of the disputed property and thus, there was a genuine issue of material fact that was properly submitted to and resolved by the jury.” Okay, so the deeds are collectively broken. The rest of Item 1 seems to be some sort of lawyer ramblings that don’t fit into any in my vest pockets. So let’s make like Tiny Tim and tiptoe through the tulips over toward the legal descriptions.
The Marshalls’ deed contained the following description:
Beginning at the southwest corner of W. M. Taylor’s lot running straight across the bottom to the branch, and thence running in a north direction with the branch to a willow, leaving the branch and still running north to a stone; thence in an eastern direction to a stone, a corner to William Taylor’s lot near the road at the foot of Rock Creek Mountain; thence running with the William Taylor’s line to the beginning corner.
Not too shabby. I mean it closes, right? It’s not a bad set of instructions. It reminds me of how owners actually describe their property when I ask them “where’s your property lines?” The Ward’s deed contained the following description:
Beginning at two sourwoods on side of Rock Creek, corner to Lot 1, thence 81-1/2 E. 68 poles to a large hickory, S. 47-1/2 W. 11 poles to two hickories, S. 29 W. 7-3/4 poles to two hickories, S. 11-2/5 E. 6-3/4 poles to a stone white oak pointer S. 18-1/4 E. 30-3/4 poles to a stake, chestnut, oak and gum pointers, corner to Lot 3; thence with the same S. 23-1/2 W. 36-1/2 poles to a white oak, S. 48 W. 12 to Rock Creek Road; thence with said road S. 64 E. 17-4/5 poles, N. 55-1/2 E. 6-1/2 poles to _______ N. 36 E. 9-1/4 poles, S. 17-1/2 E. 25-3/4 poles, S. 12 W. 16 poles, S. 38 W. 12-4/5, S. 54-¾ W. 12 poles, S. 21-1/4 W. 14-3/4 poles, S. 7-1/2 W. 14-3/4 poles, S. 15-1/2 poles, S. 5 W. 3 poles to a chestnut, corner to Lot 1, thence with same N. 41° 12 poles W. 16 poles to a chestnut, N. 12-1/2 W. 50 poles to a stone in a branch; N. 33° 36’ W. 25 poles to a stone, N. 13° W. 12-3/5 poles to a branch, N. 22° W. 12-1/5 poles to a stake, N. 17-1/2 W. 7-1/5 poles to a white oak stump N. 29-¼—- 12-1/2 poles to a maple and dogwood, N. 22-3/4 E. 9-2/5 poles to a small poplar N. 2 27-½ E. 28-3/4 poles to a hickory on top of Rock Creek Mountain, N. 55° 36’ W. 17-2/5 poles to a small black oak, N. 21-1/2° E. 9 poles to the beginning, and containing 49 acres and 125 poles.
It looks like Ward’s description was written by a surveyor. Now let’s run the tally. For starters we’re not in Old T-Jeff’s checkerboard. So us PLSSers need to take our square thinking caps off. Okay, be forewarned that Marshall’s description doesn’t have a child proof lid or a safety seal. In fact, there’s not a single number or any math called out in this one. You kids might want to grab your juice boxes and pick up your bike helmets before Chupacabra shows up. Now, on to the good stuff. Ward has himself what I like to call a tree description and it’s as good as a big old bowl of warm gravy. How many times have we heard about those in the urban legends of Johnny Pipestaker the perennial bluetopper? Plenty. Now how many of us actually have had to implement this type of evidence? My guess is only the experts but what do I really know? <Wink, wink, nudge, nudge>
So, the monuments are living and growing objects. If they are no longer alive we may have to “Nyhus” our way around on the ground and scratch up some roots. It might help to know a little bit of dendrology, now wouldn’t it? We also have a great call to a physical monument. I’m not sure what exactly is meant by “Rock Creek Road” but I sure as hell know that I ain’t gonna call it off by a few tenths. Well, that and there’ll be some intense research and correspondence with the Raleigh County road authorities.
Then we have some stones which you all know might be covered by leaves or a century of decomposing organic matter that just needs scraped away from the surface. And finally we have our units of measure. Poles are normally 16.5 feet but that’s not always a given. The bigger issue here are the angular units and calls. What is 81-1/2° 68 poles? Well, first of all who cares as long as you make it to the large hickory called out in the deed. Secondly, I bet there’s declination that should be applied to that direction. Thirdly, interpolating to half of the smallest written unit or 1/4°, we see it subtends about a half pole (8 feet) at 68 poles (1,122 feet). I suppose you could apply some statistical logic and say +/- 8 feet, or 16 feet, or about a pole but the point is I could park a small RV over it and still be on the mark. Yeah, and I’m looking for any large hickory that stops that RV dead in its tracks. If there’s more than one large hickory, well I guess I’m dropping jacks and roasting a weenie. Who doesn’t like camping in an old hickory grove?
Okay, so we’ve talked about how to use these descriptions. The court said they don’t work together and I believe it. What intrigues me about this case is the following statement “…(surveys) each being supported by measurements to and from other known monuments thereby enveloping its true location in doubt and uncertainty, the solution of the conflict so presented is peculiarly within the province of a jury…”. I take that as the court saying these folks definitely need a jury to iron things out. The other notion I take up is that the court recognized two surveyors starting from two different points arrived at two different answers. So the real test of ambiguity is if one surveyor starting from two different places would arrive at two different answers. Not possible you say? I bet the other 99% of the readers would disagree with you. I’ll go double or nuthin’ that they just did, and I’m all in on you just mumbling “Glad I’m not in that one percent”. Hey, what can I say? My readers are good surveyors. Alrighty then, here’s a hypothetical. We just ran the ambiguity test by ourselves and the legals failed. Are we obligated to pick one over the other? Better yet, should we pick one over the other? I’ll raise the ante and ask do we even have the authority to pick one over the other?
What draws me like a skeeter to a bug light is that nothing works together here. That’s why this case belonged in court. All the king’s horses and all the king’s men couldn’t put this dumpty together. I question whether surveys should have been finalized under such ambiguity. Yes there’s a public expectation that we can get the job done but you can’t make biscuits n’ gravy without flour.
On the other hand these are competing claims of title and the judicial expectation is that we lay out the evidence. It goes without saying that the local surveyors truly are the experts and know how to work in their neck of the woods. So they are best poised to lay those questions down.
Our next professional challenge goes far beyond the antiquated craft of mechanical measurement. We are evolving into a role of mediator and witness. Truly it only takes one surveyor to identify ambiguity if we are doing our job with diligence and without bias. I’ve seen too many grenade throwers and self-righteous water walkers thrust their narcissistic opinions on an unassuming public. Regardless of those opinions we are surveying someone else’s property. On the road to resolution what seems personally “right or wrong” to the rope stretcher may have been left behind at the last rest area.