Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-08-08
COURT DECISIONS.
DIGESTED BY w. B. MARTIN
EXCLUSIVELY FOR
vIRcINlAN-PlLoT.
Notes of Cases Recently Decided
Which Are of Interest to
Our People.
FRY ". SHOWERS.

FRY ". SHOWERS.
Supreme Court of Appeals of Virginia.
June rs, 1900.
RULE If A SENIOR PATENTEE OF
LAND SETTLES UPON A PART
OF IT. AND AFTERWARDS A
JUNIOR PATENTEE TAKES AC-
TUAL POSSESSION OF A PART
OF AN INTERLOCK.
THERE CAN BE A PAROL DIS
CLA1MER OF LAND; BUT ADMIS-
SIONS AS TO BOUNDARIES AND
LOCATIONS HAVE THE SAME
WEIGHT IN EJECTMENT AS IN
OTHER CASES.
THE PRINCIPLE AS TO PUTTING
A PARTY UPON TERMS AS TO A
NEW TRIAL is THE SAME IN
EJECTMENT AS IN OTHER
CASES. AND THE SUPREME
COURT WILL ENTER SUCH AN
ORDER IN A PROPER CASE.
This was an action for ejectment for
land which was in interlock, or includ-
CD In two grants. From Judgment
Tor plaintiff the defendant appealed.
inc court says:
IN the actual possession of the land en-
braced In the patent under which he
claims for many years, having cleared
ana cultivated Il largo part thereof and
puilt house thereon. 1t further APP
pears that while the plaintiff was thus
In the actual possession of the land
covered by the Robinett patent, the de-
1endant, whose later grant overlapped
that of the plaintiff. entered upon and
enclosed part of the interlocl1 created
hall 1,n
versely to the plaintiff for the statu-
tory period. 1t is conceded by the
PlaintiT that the defendant is entitled
py reason of his entry and adversary
possession, TO SO much OF the interlock
as may be within the actual enclosure
made by him. but that his I~s>ht ex-
tends no further than the limits of
such enclosure. On the other hand,
the defendant contends that by virtue
or MS enclosure of part of the inter-
LOCK, his right extends to the limits of
his grant and includes the whole of the
interiock. Proceeding then directly to
decision of the question presented,
we are of opinion that where q senior
patentee settles upon any portion oe
MS land claiming title to the whole.
whether inside or outside of the inter-
lock before the Junior patentee has
settled upon any part of the interlock,
tne senior patentee is in possession to
the extent of his grant and n subse-
quent entry of the Junior patentee upon
the interlock only Gusts the senior
patentce to the extent of the land ac-
tualiy In the occupancy of the junior
patentec by residence, Improvement.
cultivation, or other open, notorious
and habltual acts OF ownership
The conclusion reached is supported
py the better reason. and is in accord
ancc with the great weight Of author
ity.
we are of opinion that both inAtruc-
IONS correctly state the law, and were
properly given. The instruction for the
defendant told the jury that dis
ciaimer of n legal title could only be
made by deed or by record in court,
and the instruction for the plaintiff in
forms the jury that while there can
ne no paro disclaimer of title to land
still, where the owner of land makes
O solemn admission in regard to a dis
puted question of location or boun-
dairy. or in regard to the time. loca-
ton and existence of n disputed corner.
then such admissions are entitled to
the same weight. in an ejectment case
mat would be given to them by the
jury i'm any other case There is no
conflict between the two Instructions
That for the plaintiff admits the cor
rectness of the instruction for the de-
lendant ana propounds in addition n
sound proposition touching the weight
OF admissions as to disputed boun-
Diary or corner.
new trial may be granted upon any
Terms winch, In the discretion OF the
court. shall seem requisite TO achieve
the ends of justice in the particular
case
We do not approve the rule announc-
ed in Shifiet V. Dowell, 90 Va, 745. that
the principle stated does not apply in
the case of an action of ejectment, be-
cause OF the statute which requires
that the verdict shall specify the land.
particularly as the same is proved, and
with the same certainty of description
as is required in the declaration" The
practice of putting party upon terms.
where the verdict is plainly erroneous
In part. Is a wise and salutary one,
saving delay, costs, and above all. end
ing strife, and we perceive no good rea-
son why the ends of Justice are not as
much subserved by the application of
the principle in an action or etectment
as in any other case.
In Graham and Waterman on New
Trials, Vol. 1. p. 600. it is said: ut may
be safely asserted that no case can oc-
cur, presenting circumstances. timely
addressed to the court in which rho
rights Of the parties may not be fully
protected. by the imposition of condi-
lions meeting the eXgency."
We are, therefore, of opinion thot
the court. before entering its Judgment.
should have put the plaintiff unon
terms, so as to have excluded from his
recovery. that part OF the interlocl i'm
the actual enclosure of the defendant
Reversed.