                                                                                       FILED
                                                                                    June 5, 2019
No. 18-0214 – Harrell et al. v Cain et al.                                            released at 3:00 p.m.
                                                                                  EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
WORKMAN, J., dissenting:                                                               OF WEST VIRGINIA



              I dissent to the majority’s affirm of the circuit court’s conclusion regarding

the parties’ intention because it ignores the actual language of the deed in favor of self-

serving, non-dispositive testimony. While I recognize the majority’s deference to the

circuit court’s role as factfinder, this Court has made clear that

              [t]he deference accorded to a circuit court sitting as factfinder
              may evaporate if upon review of its findings the appellate court
              determines that . . . a relevant factor that should have been
              given significant weight is not considered . . . [or] the circuit
              court in weighing those factors commits an error of
              judgment[.]

Syl. Pt. 1, in part, Brown v. Gobble, 196 W. Va. 559, 474 S.E.2d 489 (1996). Here, the

circuit court ignored the parties’ expressed intention in the deed as to the southern boundary

of the property to be conveyed and instead, cherry-picked self-serving testimony about

which brother “acted as though” he was the owner. The majority fails to realize or concede

that, as joint tenants, the fact that one brother utilized the jointly owned property more

heavily than the other does not, under any construct of our law, serve to render him the sole

owner or adequately provide compelling evidence of intent.



              It is undisputed that in the property description in Arthur Lewis’ deed, the

lone ambiguity is the precise north/south location of the southern boundary of the parcel

attempted to be conveyed. However, that boundary is not wholly without definition; rather,

it is described as running from a specific eastern boundary to a specific western boundary

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on a specific bearing: “beginning at a point on the Pennsylvania state Line, then North

68°-54’-11” West to the centerline of the dirt road . . . .” It is undisputed that this call is

on the same bearing as 1) the southern boundary of the original 121-acre parcel as indicated

in the Baker survey; and 2) the southern boundary of the Goddard farm, as the property

was previously identified in the chain of title. Nevertheless, the circuit court did not

explain, construe, or even mention this call.        Rather, upon finding the description

ambiguous due to this modest imprecision, the circuit court discarded the deed language

altogether as though it ceased to exist. The majority does likewise—hoping to obscure this

obvious omission in a mountain of decades-old cases regarding ambiguity and extrinsic

evidence, none of which are in dispute or remotely dispositive.



              The lack of precision in describing the southern boundary by no means

renders the deed void: “[W]e do not find the omission of express lines of reference to be

fatally defective.   The clause speaks of facts and circumstances which render the

description ascertainable.” Sally-Mike Properties v. Yokum, 175 W. Va. 296, 302, 332

S.E.2d 597, 602–03 (1985).         A finding of ambiguity opens up the factfinder to

consideration of extrinsic evidence to give meaning to the deed language and “render the

description ascertainable.” It does not authorize a free-for-all of hearsay and unreliable

“conduct” evidence to determine which party “acted” more like the owner, particularly

when the factual scenario is complicated by allegations of joint tenancy. The court’s order

consists almost entirely of discussion of this “subsequent conduct” testimony, which was

largely tantamount to ordinary usage by a co-tenant or, worse, unexplained conduct by
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deceased individuals.1 Under the majority’s analysis, if joint tenants do not equally utilize

jointly owned property, they may effectively oust the other if their deed is in some way

ambiguous.2 More incredibly, the majority suggests that a joint tenant must “challenge” a

co-owner’s entirely proper use of the property lest he be deemed to have relinquished his

joint tenancy under an ambiguous deed.3



              More to the point, allowing such “conduct” evidence to trump the parties’

intention, as expressed in the language of the deed, simply because it has been given the

apparently-transformative designation of “ambiguous” is directly contrary to our law:


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         In particular, the circuit court was critical of Raymond Lewis’ now-deceased
widow for failing to include the disputed property in his estate appraisement. Obviously,
without her testimony, we cannot be sure how or why that occurred. Raymond Lewis’ son,
who likewise omitted the property from his mother’s estate appraisement, testified that he
did not personally prepare the appraisement, but rather, his lawyers did so.
       2
         The majority boldly declares that Arthur “acted as though” he were the owner by
living on it, building a lake on it, and inviting/excluding persons from the property, finding
this dispositive. The majority fails to explain in what way this is inconsistent with the
rights and actions of a joint tenant, which petitioners claim Arthur was. Must a co-tenant
make equal use of a property as his or her co-tenant does to avoid a court using this lack of
equal use against them as “conduct” evidence?

       Moreover, the majority states that it does not decide this case on the basis of adverse
possession as did the circuit court. Yet it uses the exact same evidence the circuit court
used as evidence of adverse possession, but simply recharacterizes it as evidence of
“intent.” Regardless, at base, the majority’s repeated references to Arthur “acting as
though” he was the owner is merely a finding of adverse possession disguised as “intent.”
As joint tenants, one co-tenant “acting as though” he or she is the owner of a property is
demonstrative of nothing since he is, in fact, an owner.
       3
         The majority notes that Raymond “never challenged Arthur’s assertion of
ownership[.]” Given that Arthur’s conduct is entirely consistent with the rights of a joint
tenant, why then would Raymond ever seek to “challenge” it?
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                Intention disclosed, if at all, by inference or implication, is not
                allowed to prevail over a different intention expressed in terms.
                The language of the instrument itself, and not surrounding
                circumstances, is the first and foremost evidence of the parties
                intent.

Sally-Mike Properties, 175 W. Va. at 300, 332 S.E.2d at 601 (emphasis added) (citations

omitted). See Zimmerer v. Romano, 223 W. Va. 769, 780, 679 S.E.2d 601, 612 (2009)

(reversing circuit court where ruling “effectively accords no significance to the language

of the deed”). Not only did the circuit court and majority fail to afford the language of the

instrument “first and foremost” treatment, they ignored it altogether, along with this

controlling caselaw.



                This Court has explained that in making a conveyance,

                “the description thereof ‘must either be certain in itself or
                capable of being reduced to a certainty by a recurrence to
                something extrinsic to which it refers. . . . There must be
                language in the deed sufficient to serve as a pointer or a guide
                to the ascertainment of the location of the land.’”

Highway Properties v. Dollar Sav. Bank, 189 W. Va. 301, 305, 431 S.E.2d 95, 99 (1993)

(quoting Allen v. Duvall, 316 S.E.2d 267, 270 (N. C. 1984)). In other words, a reference

in a deed to something extrinsic which allows one to identify the property will serve to

identify the property conveyed. The call contained in the Baker survey is precisely such

extrinsic evidence; it is the “pointer or [] guide” which identifies the property. More

specifically,

                [a] call in a description in a deed, susceptible of application to
                a tract of land owned by the grantor at the date of execution
                thereof, for monuments like some of those mentioned in the title
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              papers under which he held such tract, is admissible evidence
              tending to prove identity of the land granted by the deed with
              so much of the land so owned as can be reasonably brought
              within the description.

Syllabus, Adams v. Tilley, 87 W. Va. 332, 104 S.E. 601 (1920) (emphasis added).



              Without question, the call in the deed mimicking the call in the Baker survey

plainly proves the identity of the land conveyed; otherwise, what purpose did inclusion of

that call serve? The brothers otherwise painstakingly followed the boundaries of the

property as described in the Baker survey, using those precise landmarks and boundaries.

Yet, when it comes to the southern boundary line, the circuit court and majority would have

one believe their inclusion of the precise bearing of the southern boundary of the 121-acre

parcel was merely surplusage with no significance or purpose simply because they failed,

as laypersons, to properly include a starting point.



              Not only is the majority’s conclusion legally unsound, it is factually flawed.

Rather than affording the language in the deed its most obvious interpretation—that by

using that specific call from the Baker survey, the brothers intended to mimic the boundary

line which followed that bearing—the circuit court and majority take the unsupported leap

that the brothers intended to carve off approximately 40 acres to Raymond, yet convey the

remaining approximate 100 acres, more or less, to Arthur. Not only is this facially

inequitable and therefore reason enough to suspect that this was not the parties’ intention,

it is directly contradicted by the express language of the deed.


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              If the description in Arthur’s deed demonstrates nothing else, it plainly states

that the southern boundary of the property being conveyed is a straight line on a bearing

North 68°, 54’-11” in a westerly direction from the Pennsylvania state line to a line on a

road on the western border of the property. However, the southernmost boundary of the

parcel awarded by the circuit court does not run in a straight line. As reflected by the maps

contained in the appendix record, the southern border of the 60-acre parcel is jagged and

runs north and south at various points. Accordingly, the circuit court and majority have

not only subverted the intention expressed in the deed, they have granted ownership of

property in direct contravention of the express language of the deed.



              Accordingly, I respectfully dissent.




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