194 Ky. 91 | Ky. Ct. App. | 1922
Opinion of the -Court by
Affirming.
The decisive question in this case is tbe proper location of -a patent for tliree hundred acres of land in Perry county issued to John Gillnm on July 1,1850, upon a survey made August 17, 1819. There was issued to Phillip W. Hall -on July 1,1851, a patent for two thousand acres of land, the survey of which was dated December 13,1850. The Hall patent to some extent laps on the prior -one issued to Gillum, and being junior to the latter -one it is void to the extent of the lap. The appellant an-d plaintiff below, Elzira Combs, is the owner by successive conveyances of a portion of the Hall patent -and her deeded boundary in-dudes that portion -of it which laps oh the Gillnm patent, while the appellee and defendant hel-ow,
Courts in locating patents, as in dealing with all other individual transactions, recognize the imperfections of humanity and that even the most painstaking are liable to commit mistakes, and that the thing to be done is to ascertain what was the intention of those whose work is under review, and in the case of a patent to locate it according to that intention. The most recent statement of this court of the rule, as applicable to the location of patents, is found in the case of Kentucky Union Company v. Shepherd, 192 Ky. 447, wherein it is stated: “The supreme task of a court in locating a patent is to ascertain the intention of the parties at the time of making the survey and to adopt the location which the parties intended to make upon tire ground at the time. For the performance of this task numerous rules have been adopted largely, if not entirely, analogous to the rules for the construction of other contracts and writings. None of them is inexorable nor should any of them be given indubitable weight.”
It is furthermore the rule, of such familiarity and such frequent application as to require the citation of no
The beginning comer of the Gillum patent is on the south side of Laurel Fork of Maces creek on the North Fork of Kentucky river about fifty poles from its mouth, and proceeds with courses and distances to natural object corners to corner 21, which is the fifth reverse one from the beginning, there being about twenty-five corners and twenty-six lines around the patent. According to the contention of defendant, which the court adopted in its 'judgment, the line of the Hall patent entered upon the Gillum one between the eleventh and twelfth corners on its east side and between its sixteenth and seventeenth corners on the other side; while it is the contention of plaintiff that the line of the Hall patent first crosses the Gillum patent between corners twelve and thirteen and passes out of it between corners fifteen and sixteen, which makes the acreage of the lap considerably less than the court found by its judgment.
There were three maps of the Gillum survey filed by three different .surveyors who testified in the case and who were J. A. Boggs, W. A. Ward and J. M. Hall, the latter of whom is a son of P. W. Hall, the original patentee of the two thousand acres u,nder whom plaintiff claims. There is some discrepancy as to the true location of the first comer, but we think the great preponderance of the evidence shows it to be at the large rock on the single red line on the map of J. M. Hall. However, there would be but little, if any, difference as to the inclusion or exclusion of the land in controversy if the beginning comer was fixed as contended for by plaintiff, since, if that was done, the natural objects marking corners 10,11 and 12, under the rule, supra, would have to be reached or approximately so in locating the patent, and it is from these natural objects, which the court found and which we think the evidence establishes, that the succeeding lines around to corner 21 would have to be run,
In the Cornett case, supra, it is stated that, £iIt has long been the rule in attempting to locate lost'lines to give preference to the courses rather than to the distances, and to close the survey, if possible, by lengthening or shortening the distances rather than changing the courses, but in so doing the error in distances must be reasonable and should be apportioned to all of the lost lines rather that arbitrarily placing it in only some of them. This rule of sacrificing distances to courses is only a general rule and is subject to many exceptions, where, from the evidence of a particular case, some other more satisfactory method of adjusting the error is disclosed.” The statement in the excerpt that the error in distances ££ should be apportioned to all of the lost lines rather than arbitrarily placing it in only some of them” also embodies only a general rule which itself££ is subject to many exceptions,” arising from the evidence in the particular case, and from which the true intention of the parties may b e gather ed.
We think the evidence in this ease, some of which we have referred to, renders the method adopted by the court in closing the survey more satisfactory” and conforms not only to the evidence in the case, as well as the finding of the trial court, but also as to what was evidently the intention of all parties concerned, including the surveyor of the patent.
Being unable to find any reason sufficient to authorize a reversal of the judgment, it must be and is affirmed.