140 Ky. 459 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
The amount of land involved in this controversy is so small, being 27-100 of an acre, and its value so trifling, that it is evident that the appellant Ewell was not influenced by pecuniary considerations to bring this suit or to prosecute this appeal from a judgment against him. But, whatever the motives that induced the litigation, the case is properly here, and we will dispose of it on its merits.
In 1888 the appellee Hauser purchased from "W. B. Catchings a tract of land containing 15 acres, more or less. The deed describes the land as:
“Beginning at a stake on the Sublimity road at or near J. C. McKee’s corner, thence S. 79 W. 231-2 poles to a stake on said road; thence N. 27 W 53 poles to a stake; thence N 10 E. 7 poles to two little white oaks; thence same course 6 poles to a stake; thence S. 80 E. 43 poles to a stake near the branch; thence S. 38 1-2 E. 33 poles to a stake in the road; thence with Sublimity road 27 1-2 poles to the beginning.”
In 1892 Catchings sold to Ewell a tract of land adjoining on the north the land previously conveyed by Catchings to Hauser, and in 1890 Catchings sold to Par-man a tract of land also adjoining on the north the land of Hauser. Parm an conveyed this land to Mrs. Brown, and in 1897 Mrs. Brown conveyed it to Ewell. The result of the ownership of these two tracts was to give Ewell title to all the land that adjoined on the north the land of Hauser. The strip, of land in controversy lies on the north line of Hauser’s land, and it is the location of his north line that is in dispute. The deeds under which Ewell claims title calls for Hauser’s line on the north, and so the question at issue in the case turns upon the location of the line in Hauser’s deed “S. 80 E. 43 poles to a stake near the branch.”
The evidence shows that the courses and distances in the deeds made to Ewell cover the land in dispute, but
When the land was surveyed, the line in dispute run through uncleared or wooded land, and it will be observed that there are no permanent or natural corners in Hauser’s lines- except the one calling for “two little white oaks,” all the others being stake corners. It is Ewell’s contention that there are and were three marked trees on Hauser’s north line, to-wit: A black oak, corner tree, and a white oak and a pine, line trees, and that these trees— especially the black oak — should control the location of the disputed line. But we are unable to perceive how the location of these trees or the fact that they are now marked, throw any light on the location of Hauser’s line, because there are no calls for trees in his north line — it is a stake line. There is no satisfactory evidence that ngarked, throws any light on the location of Hauser’s line, was run. If these trees were on the line when it was surveyed to Hauser, it is singular that the field'notes of the surveyor do not call for these trees or some of them in place of stakes. If these trees or any of them were in the line it is fair to assume they would appear in some way in the field notes of the surveyor, and the fact that they are not mentioned in the survey is persuasive if not conclusive evidence that they were not in Hauser’s line as surveyed to him. That they were not in his line is borne out by the testimony of some of the surveyors who testify that the line of Hauser’s survey runs a few feet beyond the black oak claimed by Ewell to be a corner tree. Hauser testified that both he and Catchings were with the surveyors when the land purchased by him was surveyed, and that he remembers distinctly the two little white oaks mentioned in his deed, that they were marked as line trees and grew out of the same stump, and one of them is now standing. At the time he purchased, there was no fence on the disputed line, but he says that in the summer of 1888 he built a fence about half the distance on the line in controversy and on his own land, and between 1890 and 1894 he completed the fence on the line on his own land, and that the fence now standing and which Ewell claims is over on him, is on his own land. He also testified that the oaks and pine tree that Ewell claims are line and corner trees, were passed and noticed by them in making the