172 Ky. 589 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming.
By this action, instituted in the Letcher circuit court, the appellant, H. Hardaway, sought to recover of the appellee, Ben R. Webb, damages for cutting timber from a certain tract of land described in 'the petition, of which appellant claims to be the owner. Appellant also prayed an injunction restraining appellee from the further cutting of timber from the land.
The lands described in the petition and claimed to be owned by appellant embrace about áOO acres. The
It appears from the record that appellant claims title to the land in controversy under, a 100-acre patent issued to D. I. Vermillion,• April 12, 1872, and also under a deed from Alfred Hall to D. I. Vermillion made July 16, 1860. Appellee claims title under a 500-acre patent issued to Ezekiel B-rashears and Alfred Hall, April 10, 1849, and a deed from Adam Hall to Simpson Adams, March 15, 1854. Hall had previously been conveyed by Ezekiel Brashears his entire interest in the 500-acre tract of land patented to Ezekiel Brashears and Alfred Hall. The tract of land conveyed by Alfred Hall to Simpson Adams, March 15, 1854, containing 50 or 60 acres, was conveyed September 13, 1869, to appellee by
An elaborate map or plat, marked “B. B. W. No. 5,” showing the respective contentions of the parties as to the location of the lines of the Brashears and Hall patent and other boundaries involved in this case, is here inserted in the opinion. According to the contention, of appellee, the boundary of the Brashears and Hall patent is indicated on this map by the black letters A, B, C, D, E; P, G, H, I, and A. As claimed by appellant, the boundary of that patent is indicated by the black letters A, B, and the red letters C, D, E, P, G, H, I, and A. The fifty-acre tract of land conveyed appellee by Simp-' son Adams and to the latter by Alfred Hall is indicated by the yellow lines on the map. The D. I. Vermillion. 100-acre patent of April 12, 1872, is indicated by the blue lines on the map, beginning at black letter B, and running to red letters C, D, E, then to black letters D, C, B.
The only difficulty presented is in locating the second line of the Brashears and Hall patent. If the lines are followed according to the calls of the certificate of survey or those of the patent, the patent does not cover the land in controversy, but if run according to the original plat made of the survey, the patent will cover the land in controversy. The difficulty referred to arises out of a mistake in the call of the second line. The beginning corner at black letter A and the corner at black letter B, are admitted by appellant to be correct; but in running from B to the object called for, a chestnut oak on
Quite a number of witnesses besides appellee himself, many of them elderly men, all residents of tbe neighborhood and well acquainted with tbe corners and lines of tbe Brasbears and Hall patent, testified to tbe correctness of tbe boundary of tbe patent as claimed by appellee. Some of these witnesses bad seen tbe patent surveyed by Stephen Fields and others by Newt. Lewis; still others by Nebemiab Webb, all of whom established tbe second line from black letter B to black letter C by following tbe call in tbe original plat, S. 83 E. 122 poles,
The admissibility as evidence of the original survey or plat constituting the basis of a patent, has long been recognized in this jurisdiction as competent, with other evidence on the subject, to explain a mistake or ambiguity in the description given by the patent of the land granted, or to supply the omission by such description of a course, distance or object necessary to correctly determine and fix its boundary. Thus, in Mercer, etc. v. Bate, etc., 4 J. J. Mar. 340, we said:
‘ ‘ The original plat is not only admissible as evidence, but it is intrinsically one of the most potent facts which can be adduced and, hence, it has always been admitted by this court as either preponderative or alone conclusive.”
In Bell Co. Land & Coal Co. v. Hendrickson, etc., 24 R. 371, we also said:
‘ ‘ The original plat of the survey may be always used in evidence to show the position of the land, and is evidence of the most potent kind in determining the original location of the lines and corners. (Alexander v. Lively, 5 T. B. Mon. 160; Mercer v. Bate, 4 J. J. Mar. 340.)”
In Hogg v. Lusk, 27 R. 840, it appears that there were several erroneous calls and an omitted line, in the patent relied on by appellant to show his title. In holding that the errors could be corrected and the missing line supplied by resort to the surveyor’s plat, we said:
“Appellant admits, and it is obviously .true, that if his patent is sought to be established by the courses and distances of its calls it runs wild, and can in.no way be so closed as to constitute a valid muniment of title; and if these calls must be adhered to the judgment of the chancellor must be affirmed. But he insists that certain of the calls are evidently clerical errors, which can be corrected by reference to the plat in the surveyor’s certificate, and that when so corrected his patent will be established so as to embrace from 80 to 100 acres of the land within the lines of appellee’s 800-acre patent. The*595 calls in the surveyor’s certificate- are the same as those in the patent, and, therefore, contain the same errors, and if they are to be corrected, this must be done alone by the plat drawn by the surveyor.....It must be presumed that the state, the surveyor and the grantee intended to establish a valid patent, and not to do merely a vain and useless act; and, therefore, we must conclude that the two erroneous calls, and the omitted line, which make the work abortive, should be corrected as shown by the plat, and the patent established. We know that such mistakes are readily made, and easily escape detection when read over. But when we observe the completed figure of the plat, which shows what the surveyor intended to accomplish by his calls, there is no room for mistake; an omitted line is detected hy the eye at a glance, and an erroneous direction wholly destroys the figure. By the aid of the plat we have no difficulty in correcting the manifest error made in transcribing the field notes. The principle is, that the intent of the parties must be effectuated, if possible, and the mere mistake of the officer should not be allowed to frustrate this intention if there is evidence by which they may be corrected. This evidence we have in the surveyor’s plat, which plainly points out the errors. The patent of appellant, when thus corrected, clearly laps on the Lusk patent, and to the extent of the interference the land is the property of appellant. ’ ’
It will be found that the following additional authorities are to the same effect: Bruce v. Taylor, 2 J. J. Mar. 160; Patrick v. Spradlin, 19 R. 1038; Zimmerman v. Brooks and Carter Co. v. Brooks, 118 Ky. 85; Steele’s Heirs v. Taylor, 3 A. K. Mar. 225.
Viewed as a whole, the evidence in this case and the application to it of the rule approved by the authorities, supra, convincingly sustains the finding of the chancellor, that the Brashears and Hall 500-acre patent embraces the land in controversy.
We are also of opinion that the chancellor’s further conclusion, that the deed from Alfred Hall to Simpson Adams and that from Simpson Adams to the appellee, embrace the land in controversy, ■ is also sustained by-the weight of the evidence.. While it appears from the proof that -eighteen or twenty years before the institution of this action and when one W. W. Baker cut and removed a small quantity of timber from the land in
The only question remaining to be decided is, should ■ the appellant’s defense of estoppel have been sustained? 1
Appellee’s specific contradiction of appellant’s agent .as to the conversation to which the latter testified, together with other evidence furnished by the record tend-, ing to corroborate him, seems to have been sufficient in the estimation of the chancellor to outweigh that of appellant’s witnesses and satisfy him of its truth. The evidence as to the question of estoppel was conflicting, but the action was brought in equity and each of the parties having asked that his title to the land in controversy be quieted and all proceedings guia timet being of equitable cognizance, we must follow the rule obtaining in equitable actions in this jurisdiction, which is, that where the evidence is conflicting, some weight will be given to the chancellor’s finding, and if on the whole case the mind is
Under the above rule the finding of the chancellor on the issue of fact raised by the plea of estoppel will not be disturbed; and, as on the other issues involved, the chancellor’s conclusions are sustained by the weight of the evidence, the judgment must be and is affirmed.