121 Ky. 580 | Ky. Ct. App. | 1905
Affirming in part and reversing in part.
Appellee Sergent, alleging that he was the owner of a certain tract 'of land on Carr’s Fork and its waters, in Knott county, sued appellants, Amburgy and Franklin and the Burt & Brabb Lumber Company,, charging that they were setting up claim to thirty-six poplar trees on his land, which had been marked in the brand of the last-named company. The object of the suit was to quiet 'appellee, Sergent’s title to the land -and trees in question. Sergent claimed under a deed from J. B. Pigman, who was the patentee of' the tract of land which embraces the trees and territory in dispute. Appellee, Burt & Brabb. Lumber Company, claims through conveyances from Franklin and Amburgys. Franklin and Amburgy claim through J. AY. Franklin, the patentee of a tract of land adjoining the Pigman patent. The boundaries of these two tracts interfere to the extent of a few abres;.but, as Franklin’s patent was 'the elder, Pig-man never claimed, so far as the record shows, within-that conflict. Franklin also owned another tract,, embraced by a patent which interferred with another-tract, also owned by J. B. Pigman under another patent than the one above alluded to. The elder Franklin and Pigman, about 1867, established a line between their two patents last mentioned, but which wa§nowhere near the line now in dispute, nor did either of the tracts of land mentioned touch the land now in dispute. This agreed line between them was marked' by a fence, and has been recognized by -the parties, it seems, for nearly forty years. The elder Franklin and Pigman are both now dead. Appellants, Amburgy and William. Franklin, as well as the Burt & Brabb Lumber Company, claimed under the Franklin
It is claimed by appellant that the elder Franklin and Pigman, in establishing the last-named agreed line, agreed to begin at a certain marked corner,, which was marked, not as the corner of the agreed line, but as the corner of other established surveys, and then to run it with the dividing ridge, the land on one side falling to Pigman, and that on the other to Franklin. If it had been true that the line had been established, as claimed, still it is also true that Pigman would have been giving up a number of 'acres-of his land for nothing. He got nothing whatever in return f or it. The alleged agreement was in parol. It is not claimed that there was any dispute or any misunderstanding between the elder Franklin and Pigman as to where their respective boundary lines were, nor as to the validity of either of .the grants, nor as to the superiority of Franklin’s grant to the extent that it interferred with the other. The claim of appellants is, broadly, that Pigman agreed to surrender and give to Franklin a strip of land by parol agreement, and that they fixed upon a natural object to> wit, the dividing ridge as the line between the land retained by Pigman and that which he ceded to Franklin. As the timber and territory in dispute
There have been quite a number of cases before this court, beginning in its very early history, and continuing until even the present term, which have held, broadly speaking, that parol agreements between adjoining owners of land, by which their dividing line is established, are not within the statute of frauds and perjuries. We conceive that all these cases may be referred to one of three heads: One, where the true dividing line is in doiibt, and there is a dispute between the adjoining owners as to the exact location, its true establishment depending upon variable facts or evidences in themselves not susceptible of certain determination. In such case, where the owners agree upon a line as the true dividing line, and mark it, and thereby establish it as such, it is held that this agreement and action is not ah exchange of lands, and is -not, therefore, within the statute. It rather comes under that head of evidence which holds that the acts and declarations of a claimant of land against interest are receivable against him and his privies in estate to prove that such was in fact the true boundary. It further rests upon the announced principle that the courts favor settlements of. disputes out of court by the parties concerned. Where they themselves have agreed that the fact is so and so, that ought to be and is the end of the matter. Another class of the cases is where the parties have established the dividing line, although in doing so each may have given up some part of his land to the ether, and have executed the agreement by. each one’s taking actual possession of
The case at bar does not fall within any one of the three classes above enumerated. As indicated, there
In the conveyance of the timber to the vendor of the Burt & Brabb Lumber Company a lien was alleged to have .been created upon the land of Am
The judgment in favor of appellee Sergent is affirmed; but, for the reasons given, the judgment in favor of the Burt & Brabb Lumber Company against appellant Amburgy is reversed, and cause remanded, with directions to grant appellants a new trial, as against the Burt & Brabb Lumber Company, under proceedings not inconsistent herewith.