CHARLESTON.

#### Buck *v.*Newberry.

Submitted January 18, 1901

Decided April *22,*1904.

■ 1. *Tbespass*— Exeeptecl *Land.*

In aB action of trespass for cutting trees, and the deed of the plaintiff excepts certain tracts within the outside boundary of the land, the plaintiff must show that the trees cut were not on the excepted land. (p. 683).

• 2. *Trespass*— Limitation.

In an action of trespass for cutting trees, under a plea of the statute of limitations, the defendant must show the date of such trespass, and where part of the' cutting of trees was more, and part less, than five years before suit, he must show what part is barred by the statute, (p. 683).

: 3. New Trial.

Rarely can the Supreme Court set aside a verdict dependent on weight of evidence, and approved by the circuit judge. The *682Code of 1899, chapter 131, section 9, does not, even if it could, do so under the Constitution, direct the courts as to what effect they shall give evidence upon a motion for a new trial, (p. 683).

Error-to Circuit Court, Wyoming County.

Action by Frank Buck against Herman Newberry. Judgment-for defendant, and plaintiff brings error.

*Affirmed.*

CAMPBELL, Holt & Cahpbell, H. K. ShüMate, and J. W. McCeeeRY, for plaintiff in error.

. Douglass *&*MoGeath, for defendant in error.

BRANNON, Judge:

Frank Buck brought an action of trespass *quare clausum fre-git*against Harman Newberry, in the circuit court of Wyoming, county, for breaking and entering and cutting trees upon a close of Buck containing sixty-three thousand acres, part of a. tract of four hundred and eighty thousand acres of land granted by Virginia to Robert Morris, 23 d March, 1795. A deed from Phillip A. Trimble to Buck, under which Buck claimed, reserves-from the sixty-three thousand acre boundary four different tracts, which had been previously conveyed to other persons, aggregating fourteen thousand acres. Newberry pleaded the general issue of not guilty and the statute of limitations. A jury having found for the defendant, the court overruled a motion of Buck for a new trial based on the claim that the finding was-contrary to the evidence, and gave judgment for the defendant,., and Buck brought the ease here.

The case involves only questions of fact under a large amount-of oral evidence. Is the place where the trees were cut within the Morris grant? Is that place within or without the four tracts excepted in'the deed from Trimble to Buck? Did the-defendant cut the timber? Was the cutting within five years-before the suit? These are the questions. No actual possession being shown, it is admitted that to recover Buck had to show title to the ground on which the timber was cut, and to do this-he had to show that the Morris grant covered it. This was a jury question. It depended on oral evidence of surveys, corner-*683trees and other corners, water courses, ridges and other circumstances. The evidence to locate the survey, and especially as to a certain line on which the controversy hinged, was not clear, but easily admitted of two opinions. We cannot overrule the jury and the circuit court under this head.

There was no adequate evidence to show that the timber cut was not upon the land excepted in the deed from Trimble to Buck The burden was on Buck to show that the cutting was on his land, and as thousands of acres within the bounds of his deed were never conveyed to him, he must show that the timber was not on those excepted lands. *Stockton*v. Morris, 39 W. Va. 432. The cases given on the two hearings of that case will sustain this position.

As to limitation: The evidence shows that some of the cutting was barred, some not. The burden was on the defendant to prove the time of the trespass under this plea, and it was on him to show what part was barred. But this, except as a legal proposition arising on the record, is immaterial, as the verdict is beyond our reach for reasons above stated. We cannot act as a jury. Again and again has this Court said, that where the case' turns on questions of fact on oral evidence, the jury being the judges, almost uncontrollably, of its weight and effect, we should scarcely ever reverse a verdict. In *State*v. *Sullivan,*decided at this term, this subject is discussed, and it is held that where: there is some evidence, evidence worthy to be considered, fairly-bearing with some weight upon the matter involved, appreciably operative to sustain a verdict, so as to make the case turn on its; weight and effect, the verdict rightly ought to stand. Why does-the Constitution give the jury trial, if this be not so ?. It gives-it to both sides. -When the Supreme Court interferes, simply because its judges, if of the jury, would have found the fact otherwise, it is only an act of arbitrary power against the plain meaning of the Constitution. I insist that when there has been a fair trial of fact by a jury, and the verdict is approved by the-judge presiding, the opinion of that judge, who witnesses the-trial, ought to be highly regarded, is almost conclusive and final,, and rarely can be reversed. *Smith*v. *Parkersburg*Association, 48 W. Va. 232; *Sigler*v. *Beebe,*44 *Id. 587.*As stated in *Johnson*v. *Burns,*39 W. Va. p. 669, the code, ch. 131, sec. 9, only causes the evidence, not the ultimate facts merely, to be eerti-*684:fied, so that the appellate court may see the evidence, and that :its effect to prove facts shall not be left finally to the trial judge; but the Legislature did not design a subversion and revolution .■as to the time-honored rules upon the treatment of verdicts and «evidence in appellate courts; did not design to give the evidence .a new force or effect; did not design to overthrow the weight of verdicts. As is said in the *Johnson Case,*the Legislature ■•■could not add new force to evidence, or affect verdicts under it; for that would be the exercise of judicial function, militating {•against the Constitution, which vests that function m the judiciary. The Legislature cannot trench upon the effect of a ver- • dict. We must not give the statute such a construction. Before it came the rule was that the trial court certified only the facts which it thought were proven by the evidence, and not the evidence in detail; but the statute was intended to dispense with the absoluteness of the judge’s opinion and bring before the •appellate court the whole evidence, not merely the facts proven by the evidence according to the circuit judge’s opinion, and thus present the whole evidence for the consideration of the ;appellate court. For these reasons we affirm the judgment.

*Affirmed.*