134 Ky. 249 | Ky. Ct. App. | 1909
Opinion op the Court by
— Affirming.
In the year 1872, a patent was issued to Steven G. Reed for a large body of land on the Laurel fork of Quicksand creek and its waters, there being excluded from the patent 25,800 acres of land previously granted. The Breathitt Coal, Iron & Lumber Company is, by subsequent conveyances, the owner of the land embraced in this patent. In April, 1887, Andrew Hix obtained a patent from the Commonwealth for 100 acres of land, and, soon after the patent was issued, he conveyed the land to John R. Bowling. This action was brought by the Breathitt Coal, Iron & Lnm
It is insisted that the plaintiff did not show an actual possession of the land, and therefore the judgment is wrong, as an action to quiet title cannot be maintained unless the plaintiff is the owner and in possession of the land. But this was not an action to quiet title. It was an action, under section 2361, Ky. St. to restrain trespasses upon it. The statute is in these words: “The owner of land may maintain the appropriate action to recover damages for any-trespass or injury committed thereon or to prevent or restrain any trespasses or other injury thereto or thereon, notwithstanding such owner may not have the actual possession of the land at the time of the commission of the trespass.” It was alleged that Bowling was trespassing upon the land, and the proof brought the case literally within the statute. The proof for the plaintiff showed that there were something over 500 prior grants, within the exterior lines of the Eeed patent, and it is insisted for the defendant that the proof does not show that the land described in the plaintiff’s petition is wholly without the prior grants. But the defendant only set up title to 100 acres. That 100 acres is the only thing in controversy in the action. The proof for the plaintiff satisfactorily shows that none of the prior grants included this 100 acres, and that it lies within the exterior lines of the Eeed patent. In Chattaroi Timber & Cannel
In Trimble v. Smith, 7 Ky. 257, the junior patentee settled first on his patent, but not within the interference. It was held that by living on his patent in tliis way he acquired no possession within the elder patent. The court said: “Where there is no adverse possession there can be no doubt that a man by an entry into part of a tract may acquire the possession of the whole, provided he may lawfully enter upon the whole; but to construe an entry into part of which he has right, to give him possession of another part to which he has no right, would be making an act which was right in itself tortious by construction.” The court then quotes from Coke on Littleton, and adds: “Now, as the entry of the defendants in this case upon the part of their tract not within the interference, if construed to give them possession of the land within the interference, would have the effect of divesting the plaintiff of his right, it is clear that such a construction is contrary to the law as laid down by Coke. Indeed if such a construction should prevail, a party having right might be divested of his right without any wrong being in fact done to him, or any possibility of knowing that any was intended to be done.” The question again came before the court in Smith v. Mitchell, 8 Ky. 208. There the court said: ‘ ‘ The appellee is proven to have made an improvement and actually settled upon the land contained within his patent more than 20 years previous to the bringing of this action; but, as neither the settlement nor any part of his improvement was, at that date, contained within the boundaries of the appellant’s
The principles announced by these opinions were followed in Swafford v. Herd’s Adm’r (Ky.) 65 S. W. 803, 23 R. 1556; Hendrickson v. Linville (Ky.) 104 S. W. 688, 31 R. 967; and Goff v. Low, (Ky.) 107 S. W. 794. A contrary rule was not laid down in Northup’s Trustees v. Sumner’s Trustees (Ky.) 116 S. W. 699. In that case the defendant had settled his sons within the lap, and had so held the possession for a great number of years. In Overton v. Perry (Ky.) 111 S. W. 369, the defendant had no legal title, and therefore
On the whole record the judgment of the circuit court is in accord with the real right of the case.
Judgment affirmed..