151 Ky. 97 | Ky. Ct. App. | 1912
Opinion op the Court by
Reversing.
Roberta S. Bryant claims a large body of land in Whitley County under a patent for 9,600 acres issued October 18, 1855, to Jacob Hudson and Cyrenius Wait. The patent includes a large boundary of land from which prior patents and surveys are excepted. She brought this suit against Murray Strunk and others to recover a portion of the land embraced in her patent which was claimed by them. On a trial between her and Strunk, Strunk was adjudged the owner of the land claimed by him. She appeals.
Strunk’s claim to the land is based upon a patent issued July 12, 1883, upon a survey made June 12, 1882. Although his patent is junior to hers, he insists that he is the owner of the land covered by his patent by reason of the fact that he and those under whom he claims had been in the adverse possession of the land for more thán fifteen years before the bringing of the action. He does not show a marked or well defined boundary to which he claimed, but he insists that having entered under his patent, he was in possession of all the land which -the patent includes. So it becomes necessary to locate his patent in order to determine the extent of his possession. As claimed by him and as located by the judgment of the circuit court, his patent, though calling for only 100 acres, in fact includes, according to one surveyor, 486 acres, and according to another 550 acres. The calls of his patent are as follows:
“Beginning at a white oak corner of a survey in the name of Alexander Murphy; running thence with said survey S 8 E 16 poles 1 o a spotted oak; thence S 2 E 44 poles to a gum; thence South 70 E 144 poles to a stake in said line and in a line of John Murphy’s survey; thence with John Murphy’s survey S 20 W 106 poles to a stake in a line of Isham Strunk’s survey; thence with the same N 10 W 90 poles to a stake said Strunk’s corner; thence with his line S 31 W 180 poles to a poplar and hickory; thence S 76 W 120 poles to a stake in a line of Enos King’s survey; thence with same N 23 W
It will be observed that the patent contains only nine ealls, but as located by the surveyor it has about forty calls, and includes not only the body of land indicated on the plot below given, but as much more lying west of it. ,The circuit court submitted to the jury the question of the location of the patent; but as there is no dispute as to the facts, the proper location of the patent under the evidence is a question of law for the court. The following plot gives roughly the situation;
It is true the rule is that the calls of a patent for course and distance must give way to known or established objects found on the ground. But, after all, the rules that have been laid down on this subject are for the purpose of establishing the actual location of the lines and corners of the original survey, and they have little application where the lines were not run out in the original survey, but were simply laid down by the surveyor by protraction as was evidently the case in the patent before us. When the lines were not in fact run we have little to guide us except the calls of the
Although the appellee’s patent was inferior to appellant’s and was void as the land had been previously granted, still if he entered on his' grant claiming to the extent of its boundary, he was in possession of all the land included in his patent; for his patent, though void, gave him color of title and defined the extent of his possession. The circuit court should by his instructions under the evidence have located the Strunk patent as above indicated. If on another trial there is evidence of adverse possession by the defendant, sufficient to take the case to the jury as to any part of the land, the court will by his instructions define the extent of possession under the facts shown by the evidence, so that only a question of fact will be submitted to the jury, and not both the law and the facts. (LeMoyne v. Hays, 145 Ky., 415; Burt & Brabb Lumber Co. v. Sackett, 147 Ky., 232.)
There is considerable evidence in the record in regard to the Copeland tract, or the Copeland survey, as it is sometimes called, but no such survey is produced and there is no proof of any marked boundary to which
Judgment reversed and cause remanded for a new trial and further proceedings consistent herewith.