69 S.W.2d 721 | Ky. Ct. App. | 1934
Reversing.
The appellant, M.V. Davidson, sued the appellees, John C. Young and Nancy Young, to recover the value of some trees which they had cut and removed from his land. The title to the land was brought in issue and the verdict for the defendants effectually determined the title to be in them. The plaintiff appeals.
The land is near the head of Hurts creek, a tributary of the Middle fork of Kentucky river. The plaintiff has had other litigation over his title, which was disposed of in his favor in Coldwell v. Davidson,
The defendants claim under adverse possession to the ridge; consequently that the plaintiff's deed from Howard in 1902 was champertous. It does not seem to have been sustained. They lived at all times south of the creek and the line claimed and called for by plaintiff's deed. They testified, as did Browning, that the boundary extended to the conditional line on the ridge, and a number of others deposed that such was the neighborhood gossip or understanding. Upon one occasion when the plaintiff Davidson cut a tree for timber, the defendants said it was cut from their land, and testified that the plaintiff promised to pay them for it but never did. He says that it was cut on his own land, and *347
at that time Mrs. Young pointed out the line as being about where he now claims. There is some evidence as to trees being marked as a boundary on the mountain, but as we understand it that evidence related to a line agreed upon years before between Browning and Muncy at another place. The fact that the party is claiming to a certain line and even has taken timber from the disputed parcel is not enough to establish such possession as will ripen into title. Kentucky Union Co. v. Gilliam,
Waiving the question of competency of the evidence relating to the establishment of the conditional line by Browning and Howard, it would not be sufficient. There must have been some record or possessory title in both parties lapping over or meeting at that point before a conditional line can be established. The conditions necessary to be proved before title to land may be invested and divested by parol agreement with respect to a division line are to be found in several cases. See Amburgy v. Burt Brabb Lumber Co.,
We are of opinion that the court should have held as a matter of law that the line claimed by the plaintiff is the correct one; hence that he should not have submitted the case to the jury, but have rendered judgment for the plaintiff.
Wherefore the judgment is reversed.