87 Ky. 421 | Ky. Ct. App. | 1888
delivered the opinion op the court.
.This is an action by appellant to recover of appellee for trespass by entering upon and cutting and carrying timber from a tract of land 'winch., as alleged in the petition, he was the owner and in possession of.
Appellee, not denying he cut and carried off the timber, states in his answer that he and those under whom he claims had, at the time of the alleged trespass, been in the actual possession of the land described in the petition, claiming to a well defined boundary, for more than fifteen years, and that he had for more than eighteen months so held and claimed it under a deed.
Upon the trial appellant testified as a witness he was the owner of the land, and had been in possession of it since 1861. And being asked if he claimed to a well-defined boundary, would, as was avowed, have answered that the boundary was marked, that he had lived upon the land, claiming to such bound
As the act of cutting and carrying away the timber was not denied by the defendant,, and the deed relied on in his answer is not alone sufficient to support a plea of liberum tenementum, the ruling of the lower court must have been made upon the assumption that a party without paper title can not maintain an action for trespass to land committed outside his inclosure, however long, notorious and definite may have been his possession and claim of ownership.
The case of Campbell v. Thomas, 9 B. M., 82, was an action of ejectment by the latter against the former. The defendant and those under whom he claimed, in 1816 entered and settled upon a tract of land, without title, but claiming to the marked boundary, and so continued to hold until the action was commenced. The land was surveyed previous to the settlement and in the same year, but the survey was private and unofficial. The original settler under whom Campbell claimed made his entry and settlement with a view of obtaining from the Commonwealth a valid title to the land embraced by the survey and marked boundary, but never obtained it. In 1823, Thomas procured a patent for a tract of land which covered about twen
The question involved and decided in that case was as to the extent of Campbell’s possession in 1823, when Thomas obtained his patent. And in reference thereto this court used the following language: “The land was vacant in 1816, when originally settled on by the person under whom the defendant claims. Having surveyed and laid off one hundred and seventy acres and entered and settled upon it, with the intention of taking possession of the whole, he gained, according-to the repeated adjudications of this court in similar cases, when the entry was made under color of title,, a possession to the extent of his marked boundary.” And in support of that decision, Thomas v. Harrow, &c., 4 Bibb, 564; Taylor v. Buckner, 2 Mar., 19; Roberts v. Sanders, 3 Mar., 30; and Brooks v. Clay, Ibid., 548, are cited.
It was then decided that while possession of vacant and unappropriated land is held in complete subordination to the title of the Commonwealth, it was taken in that instance under the encouragement given by legislation regulating the settlement and occupation of vacant lands, and, consequently, there was “no good reason why a possession taken under such circumstances should not, in ascertaining its extent, be gov
But as said by the court, inasmuch as the settler did not comply with the requisition of the Legislature, he acquired no pre-emptive right by his settlement, and the land was subject to appropriation by other parties at the time Thomas obtained his patent, and the title of the latter was not affected by the previous possession. It was, however, decided that as Campbell claimed the land as his own, his possession, according to the doctrine uniformly held by this court, became adverse to Thomas so soon as he obtained his patent, and having permitted such adverse possession to continue for twenty (15) years without entry or suit to divest, it formed a complete bar to his possessory right. And as the entry of Thomas, in 1825, was outside the interference, and not in Campbell’s possession, it did not oust the occupant or invest the patentee with possession of the land in controversy.
It does not appear whether the land was or was not vacant and unappropriated at the time the person under whom appellant claims entered and had it surveyed and marked, nor do we think, according to the principle laid down in Campbell v. Thomas, it makes any difference. If it was vacant, the person under whom appellant claims had the right to enter and hold to the extent of his survey and marked boundary, looking to the Commonwealth for a title upon the terms prescribed by statute. If it was not vacant, the occupant might, nevertheless, have, by entering and marking a
It being thus decided, we think correctly, that a possession without title may exist, which, if continued fifteen years, will bar a recovery in ejectment of any part of the land within a marked boundary, by even one having title derived from the Commonwealth, we see no reason why such a possession should not be held effectual to support an action for trespass committed within the boundary, whether outside or within the inclosure. In our opinion if appellant had openly held possession of the land in dispute, claiming and using it as his own, to a well defined marked boundary, continuously for fifteen years before the alleged trespass, he was entitled to recover. And as the evidence rejected by the court conduced to establish his right
The judgment must be reversed, and cause remanded lor a new trial consistent with this opinion.