Walston's Lessee v. White

Le Grand, C. J., delivered the opinion of this court. This is an ejectment brought to recover a tract of land called Jerusalem, claimed by the appellant by virtue of a devise to him contained in the will of Jonathan S. Parsons. The testator was seized of a body of land comprising sundry small tracts, which had been resurveyed and consolidated into one tract, called Parsons’ Outlet. Through Parsons’ Outlet flowed the Beaver Dam Branch, separating from the body which lay on the north side two small parts which lay on the south side, and in immediate contiguity with the stream.

The road from Salisbury to Dirickson’s Cross-Roads passes through the said tract and crosses the branch, leaving a large body of Parsons’ Outlet on the north side of the road, and a considerable portion south of the road and north of the branch. Parsons owned also the tract called Jerusalem, which lies southwardly of Beaver Dam Branch, distant from it one and-a-half to two miles. There is no evidence that he owned any land lying southwardly of the branch except Jerusalem, and the portions of Parsons’ Outlet so designated on the plot. The clauses of his will under which this controversy arises are: — 1st. “I give and devise unto Sydam H. Mills, son of David Mills, all my land which lies on the south side of the county road leading from Salisbury to Dirickson’s CrossRoads, called Parsons’ Outlet, or by whatsoever name or names the same may be known or called, except so much of said land as lies on the south side of Beaver Dam Branch and 2nd. “I give and bequeath unto George Walston all the lands I own on the south side of Beaver Dam Branch, to him, his heirs and assigns, forever.” The appellant claims title under item second of the will and the defendant under first.

There is a good deal of proof, both written and oral, as to the location of Beaver Dam Branch. It is not necessary that it should be set out in detail. It is sufficient to say that some of the witnesses prove the stream, in its entire length, was called and recognized as Beaver Dam Branch, whilst others ³⁰³ «rove that that part of it above the forks, designated on the plat, was known by a different name, and that It was only to that portion of it lying below the forks to which the designation of Beaver Dam Branch was applicable. In this state of case, at the trial below, the plaintiff asked of the court three instructions, all of which were refused.

They in substance are as follows: — The first asked the court to say to the jury, that if they should find the stream located by the plaintiff as Beaver Dam Branch, such In point of fact, and that the tract of land called Jerusalem lies on the south side of it, then the plaintiff was entitled to recover. The second asked that the court should say that, according to the true construction of the will of Jonathan S. Parsons, all his lands which lie to the southward of Beaver Dam Branch, or of any part thereof passed by said will to the plaintiff; and the third is the same as the second, except it puts It to the jury to find from the evidence in .the cause the land lying south of Beaver Dam Branch. It is the refusal of the court to grant either of these prayers, which constitutes the exception of the appellant. It is clear to our minds that the land involved in this controversy did not pass under the first item of the will.

The' land there referred to is "Parsons’ Outlet.” It is true the language is “Parson’s Outlet, or by whatsoever name or names the same may be known or called.” The word same evidently refers to “Parsons’ Outlet,” and the words “or by whatsoever name or names the same may be known, do not point to any other tract, and find an explanation in the fact that the patent for the tract called “Parsons’ Outlet” was a resurvey of six smaller tracts, called “Nelms Meadows,” “New Holland,” “Wolf Pit,” “Bacon Quarter,” “Partnership,” “Eagles Addition,” with vacancies added. The land not passing under the first item, the next and main question in the case is, whether it passes under the second, for if it does not the plaintiff has no standing in court. It is a well established canon of construction, that the intention of the testator is to govern when it is not in conflict with some principle of law. Berry vs. Berry, 1 H. & J., 421 . ³⁰⁴ Under the second item of the will in this case, it is manifest it was the intention of the testator to give to the plaintiff all his lands lying “on the south side of Beaver Dam Branch.” The language is too explicit to allow of doubt as to his intention.

The only difficulty arises from the fact that the evidence shows there is a difference of opinion as to the true location of the stream, and the