115 Ky. 39 | Ky. Ct. App. | 1903
Opinion op the coitet by
Reversing.
This action was instituted by the appellants, David Hays and Jonathan L. Holcombe, against appellees, for cutting and removing timber from a certain, tract of land in Letcher county, Ky. The timber which' they ■ cut and removed was pant of the timber which John Holcombe sold and conveyed to the appellants by deed dated 7th: day of October, 1899. The timber sold to the appellants, is described as -follows: “All the merchantable yellow poplar, ash and cucumber trees or logs owned by us on the south side of Linefork creek and on the north side of Pine Mountain in Letcher «county, Kentucky.” It is recited in the dee_d -,“that the timber is sold with the expectation of immediate removal, and said second parties are to have until December, 1900, to complete the removal thereof.” The appellees denied that the title to the timber was in the plaintiffs.. On the trial of the case -the plaintiffs introduced testimony which tended to show that their vendor entered upon the land before the late Civil War, and began to claim it under his father; that in 1866 the father of the plaintiffs’ vendor executed and delivered to him a deed for the land upon which the timber in controversy grew; and that he had lived'within the boundary, and claimed it adversely, to the extent of the boundary prescribed in the deed, until the trial of the case. The proof tended to show that it was a well-defined and marked boundary. Upon this showing, the court gave a peremptory instruction to find for the. defendants.
The judgment is reversed for proceedings consistent with this opinion.