141 F. 708 | U.S. Circuit Court for the District of Kentucky | 1900
The complainants’ bill seeks a decree quieting their title to a large tract of land, mainly in Harlan county, Ky., upon the allegations that they have the legal title to the land and the possession thereof, and that the defendants are, without foundation therefor, making some claim to the ownership of said land. The defendants H. V. Harris and Frank G. Brown, though properly brought before the court by statutory service sufficient for the purposes of the relief sought as to the land, have not appeared nor pleaded; but the defendants F. E. Hinckley and the Horn Silver Mining Company have pleaded that they are innocent purchasers for value of said land and have possession thereof, and they have also contested alike the title and the possession of the complainants. These defendants, however, have taken little or no proof in support of their plea or in opposition to complainants’ claim, and practically the case must be decided alone upon the testimony offered by the complainants.
Without treating the case at all elaborately (as it presents no serious difficulties), it will suffice to say, first, that there seems to be no doubt that the patent of September, 1845, issued upon the survey of March 3. 1845, to Ledford, Skidmore, and Smith, is not only prior to that under which the defendants claim, but is valid as to all lands included within the boundaries of that patent, except such parts thereof as had been previously patented by the state of Kentucky to other persons; second, that, as between complainants and defendants at least, the proof is sufficient to show possession in the former of all the land in dispute. The continued and prompt payment of the taxes upon the land lor a long period of time and its occupation by tenants, considered with reference to the character of the otherwise unoccupied portions of the land, is, all things considered, about the only character of possession
The determination of this question ultimately depends upon the location and upon the manner of locating the fourth corner called for in the patent. The call is from a “stake on top of Cumberland Mountain, south, 60 degrees west, 8,320 poles, to a stake near Cumberland Gap.” It is clearly proved that, if this exact course were followed the full distance, it would lead across the state line and onward over a portion of the state of Virginia to Powell’s creek, in the state of Tennessee, some 10 miles southwardly from Cumberland Gap, which is the corner of the two last-named states upon the Kentucky line. As neither Harlan 'county, nor the state of Kentucky, had any power either to survey, or sell, or convey lands outside of the latter state, it is entirely manifest
The court is of'the opinion, therefore, that the complainants are entitled to a decree in the usual form quieting their title as against all claims of each of the defendants to the entire boundary described in the patent as the same is now ascertained, and as this result will be worked out by locating the fourth corner of the patent at the state line monument in the Cumberland Gap. The complainants are entitled.to costs against the defendants Hinckley and the Horn Silver Mining Company, but not against the other defendants, who have not been personally served and who have not appeared in the case.
A decree may be prepared accordingly; but the form of one found in the papers is not thought to be quite up to this requirement, nor to the rules of the court.