155 Ky. 68 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
Robert Bates and Shade Combs brought this suit against Alvin Evans to quiet their title to a tract of land in Knott County. Evans filed an answer in which he denied the plaintiff’s title to the land, asserting title in himself and praying that his title be quieted. The facts¡
While the Napier survey is the oldest, it was not filed in the register’s office, and a patent obtained until after James Combs had obtained his patent for 400 acres; and under the law then in force, the 400 acre patent was superior to it, the survey not having been registered in proper time. (Payne v. Riley, 4 Dana 38). But these surveys were made so near the same time, and by men living' in the neighborhood, that it is very reasonable they were not intended to conflict one with the other; or that when a conflict was discovered, that the parties would agree upon a line between them so as to settle all dispute. Each had taken up a. large body of land, and from a custom well known in eastern Kentucky, each would regard the top of the dividing ridge as the natural boundary between
Evans, in the year 1890, obtained a patent for 110 acres on Elk Creek within the bounds of the Cody deed, but, as he claims, not within either of the James Combs patents; he insists that to this extent at least, judgment should have been entered in his favor. It is true the surveyors located the Combs’ patents so as not to include this land, but it is evident that James Combs did not so locate them; for he conveyed the land to Cody. One of the corners of this 110 acre patent is very near the house in which James Combs lived; and it was his evident purpose to take in the land about his house. Nobody in the neighborhood seems to have regarded this land as vacant, until some one had some surveying done about the year 1890. Up to that time, it had always been regarded as a part of the Cody or Smith tract. Under all the facts and circumstances we conclude that the location of the patent as made by James Combs and acquiesced in for so many years, is the best evidence of its true location; and that the circuit court properly declined to adjudge to Evans this land under the patent obtained in the year 1890. After the great lapse of time and the death of all the original parties, the facts shown warrant the presumption that the land was not vacant when Evans made his survey in 1890.
Judgment affirmed.