182 Ky. 562 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
It is agreed that Isaac Potter owned the land in controversy when on November 23, 1892, he conveyed to his son, Reuben, a tract of about eighty (80) acres which the latter claims included the land in controversy, only about an acre and a half, and upon which claim his title depends. Appellant claims (1) that the land in controversy is not included in Isaac Potter’s deed to appellee and was conveyed to it from Isaac Potter through others; and (2) that if included in appellee’s deed from Isaac Potter it was, on January 23, 1910, conveyed by appellee to W. K. Collier and later by him through others to appellant.
It also is conceded by appellee that appellant owns the minerals in the land in dispute, as well as adjacent lands, under conveyance from himself and his father, which would be unimportant upon this inquiry, which involves only the surface, were it not that the mineral deeds throw light upon the controversy about the surface, as will develop later.
Since, if appellee has conveyed to appellant’s remote vendor the land in controversy, as claimed by appellant, the whole controversy is thereby foreclosed, we shall first consider the conveyance from appellee to W. K. Collier to see if it includes this land, assuming'for the moment that it was included in appellee’s deed from his father, sa very troublesome question and determinable only upon .extraneous evidence.
These same lines are described in the deed from Isaac Potter to Eeuben Potter thus: “thence down the spur with a line between Isaac Potter to a black oak; thence with a straight line to the creek to the beginning.” The striking similarity of the two descriptions is emphasized'by the undisputed fact that the only difference does not affect the dispute but was due alone to the fact that in the deed to Eeuben Potter the line after reaching the creek, proceeded down the creek to the beginning corner some distance further down the creek than the black walnut at which the line down the creek stopped in the conveyance to Collier, and, that this change was made so as to include some land acquired by appellee from Sam Hall by another deed; and, the fact that this change and only this change was made in the description of the lines adjacent to the land in controversy is almost conclusively persuasive that the two descriptions mean exactly the same locations on the land from the black oak on the spur to the black walnut on the creek. The same terms having been employed by appellee in describing a boundary line in the deed disposing of the land as were employed in the deed by which the land was acquired the description it would seem is hardly susceptible of meaning’ one line in the first deed but another line in the second deed, yet that is what appellee is claiming, and is the effect of the judgment appealed from. Not only are appellee’s buying and selling descriptions of the controverted line identical, but after closing the particular description in his deed to Collier he added the following general description: “This being the same property conveyed to Eeuben Potter by Samuel Hall and wife and Isaac Potter and wife 23rd day of November, 1892, deeds to same recorded in deed book No. 0, page 190, &c., Letcher county clerk’s office.”
It would therefore seem to be almost, if not absolutely, conclusive that the deed to Collier conveyed all
Since the evidence here in support of appellee’s claim does not quite attain the quality of inherent impossibility or violate any physical law, we must content ourselves with a reversal because the verdict is flagrantly against the evidence.
Wherefore the judgment is reversed and the cause remanded for another trial.