187 Ky. 732 | Ky. Ct. App. | 1919
Opinion of the Court by
Reversing.
This is an appeal from the judgment of the Letcher circuit court in four consolidated actions, and the principal question presented is whether Joseph Craft and Joel Wright agreed on the division line between their lands.
The first suit was an ordinary action brought by Samuel J. Wright against the Burt & Brabb • Lumber Company to recover $450.00 as the value of forty-five poplar trees alleged to have been cut and removed by the defendant from a tract of land owned by plaintiff and described in the petition. Thereafter, a second suit, which was likewise an ordinary action, was brought by Samuel J. Wright against the Burt & Brabb Lumber Company and others, seeking to recover the sum of $288.00 as the value of twenty-four marketable trees alleged to have been cut and removed by the defendant from lands claimed to have been owned by the plaintiff and described in the petition. The third suit ' was an ordinary action instituted by the Northern Coal & Coke Company and Samuel J. Wright against the Burt & Brabb Lumber Company and A. B. Potter, defendants, to recover the sum of $2,060.00 as the value of 186 saw logs. In each of these cases, P. M. Osborne and wife filed a petition, asking to be made parties defendant, and alleging that they owned a nine-tenths interest in the timber in controversy, and seeking to recover that por
Joseph Craft and Joel Wright were brothers-in-law, and occupied adjacent farms in Letcher county on the north fork of the Kentucky river. Craft lived at the mouth of Laurel branch on the west, and Wright lived at the mouth of Holbrooks branch on the east. Their homes were about a mile a part. Craft and Wright moved on the lands some time in the early “forties.” At that time the lands were wild and uncultivated, with the exception of a little space here and there. The patents, which Craft and Wright procured, covered the lands lying on both sides of the north fork of the Kentucky river. A short distance, from the south side of the river there is a ridge which runs south until it reaches almost to the limestone cliff, which is near the top of Cumberland mountain. At '¿he base of this cliff there is a bench which runs north and south, and constitutes a watershed running from the 'beginning of the formation to the limestone cliff. This ridge divides the waters of the Laurel branch on the west from the waters of Holbrooks branch oh the east. At the top of the limestone cliff, there is a second flat or bench, called “Big Bench,” which extends south to within a few hundred feet of the top of the mountain. It is the contention of appellants .that the agreed line, called the “conditional line,” begins at a beech and sycamore standing on the south bank of the north fork of the Kentucky river, about half way between the mouth of Laurel branch and the mouth of Holbrooks branch; thence running south with an old fence across a narrow bottom; thence in the same direction up a hill a short distance to a beech; thence with the top of the ridge to a sugar tree on the north edge of the upper “Big Bench” above the
For appellants, Sam Webb testified that he was at his uncle Joe Craft’s cutting oats. Joel Wright came up, and after asking witness if he knew whose land he was working on, said that the fence was the conditional line; that the line ran to the top of the mountain and to the top of the ridge on the other side. Joel Wright stated that the reason-he and Craft had made the line was that lie had á little land that lapped on Craft, and Craft had a little that lapped on him. At that time Wright and Craft were on friendly terms, though they had had a dispute over their land prior to that time. John A. Craft-, a son of Joseph Craft, testified that he had heard his father and Joel Wright talk about the conditional line between their.farms some time in the “fifties” and beforfe the year 1862, and according to their talk, the line ran from the sycamore and beech up to the top of Cumberland mountain. As he understood it, all the land on the west side of this line'was his father’s, and the land on the east side was Joel Wright’s. No one but his father and his father’s tenants ever claimed or occupied the land west of the agreed line between the years 1849 and 1880. He did not know whether there was' any marked timber between the beech which stood on the hillside and the top of the spur, but all the way ,up the -spur to the “Big Bench” of the mountain, the line ran with the watershed or top of the ridge, and could be easily found. J. N. Webb stated that he had known Wright and Craft ever since he could recollect, and had often been over the land where they lived. His uncle, Joseph Craft, willed his land to his children, and witness and his uncle, Wiley Webb, witnessed the will. At that time his uncle, Joseph Craft, stated that he and Wright had made a conditional line, which ran across from top to top. He had also heard Joel Wright say that was the conditional line between him and Craft. E. T. Webb stated that he knew Joel Wright and Joseph Craft a lifetime, and worked for them. About forty-seven or forty-eight years before he testified, he was cutting timber for Joseph Craft. Craft showed him where to cut, and stated that his line ran up the spur. He told witness not to cut on
In 1881, Joseph Craft conveyed the lands in controversy to Wilburn Creer and Nancy Creer. The habendum of the deed contained the following: “To have and to hold all the land I own within the above described boundary with its appurtenances to the said Wilburn Creer and Nancy Creer,” etc. In his second deposition, Creer stated that his father-in-law had told him he did not know whether he owned all the land inside the boundary or not. At first the witness took possession of the whole boundary, but later relinquished his claim and possession to part of it, because of the claim of Joel Wright. Witness further stated that when he went to malvé a deed to Holbrooks, his father-in-law told him not to convey all the land as it might get him into trouble. One time he was present when Joel Wright and Joseph Craft sent for their patents to determine where their lines were. Craft claimed that Wright should not run across the top of the ridge, but the parties went and ran the lines of the Joseph Craft patent to the beech and lynn on the branch, which was on the west side of the ridge. Samuel J. Wright testified that he had never heard of any agreed line between his father, Joel Wright, and Joseph Craft; that there were only a few marks on the top of the ridge and they were corner trees to old patents; that no agreed line was ever marked, and that all the marking done along that ridge was by later surveys made since his father’s death. He further stated that he was present on the occasion referred to by Wilburn Creer, and corroborated Creer as to what then took place. On cross-examination, however, witness was asked the following question: “I will ask you to state, Mr. Wright, whether this division line, so far as you know, this division line between Joseph Craft and Joel Wright, is the western boundary line of your sister Susan’s land from where it strikes that line on up to the top of the mountain?” , Whereupon, witness replied: “It is the
Appellants further proved by a number of witnesses that Susan Mullins (Susan Venters) told them that there was a division line between her father, Joel Wright, and her uncle Joseph Craft, and stated where the line was. J. Dixon Craft also stated that J. Martin Wright told him of the conditional line and pointed it out to him as they were going up the mountain.
In addition to the foregoing evidence, we find that certain patents, surveys and deeds call for the division line. On the north side of the river the Joel Wright 200 acre survey of April 15, 1873, contains the following call: “Beginning on the north side of sd. river on top of the spur below a little branch that runs in at the conditional line between sd. right and Joseph Craft, about 30 poles from sd. river on 2 black oaks and 2 hickories and a W. oak; N. 76 W. 26 po. to a chestnut oak, spotted oak.and sour oak.” On the south side of the river, the Joel Wright 50 acre survey of April 15th, 1873, contains the following call: “Thence at a conditional line between sd. Eight and Joseph Craft; thence with said line N. 31 W. 20 poles to a beech.”
The Joseph Craft 100 acre survey of April 14, 1873, contains the following call: “Beginning on the south side of sd. river about 30 po. from sd. river on the side of a hill on a sugar tree, d. wood and W. oak to a conditional line between sd. Craft and Joel Bite; thence running with said conditional line N. 12 W. 34 po. to a W. oak on the north bank of sd. river. ’ ’
The Joel Wright 200 acre survey of April 19, 1869, which is located on the upper “Big Bench” of Cumberland mountain, contains the following*: “Beginning on the bench of said mountain on a dividing point between said Wright and Joseph Craft in a line of a 100 acre survey made in the name of said Wright on two sugar trees and dogwood, thence,” etc.
On March 6, 1882, the heirs of Joel Wright made a deed for certain lands to their mother, Eliza Wright. The description begins as follows: “Beginning at a conditional line made between Joseph Craft, Sr., and Joel Wright, deceased, thence with said line southward to the top of the hill. ’ ’ The last call is: “ Thence back with the top of said ridge to the conditional line made between Joseph Craft and Joel Wright, deceased,”
On February 17, 1881, Joseph Craft and wife conveyed a tract of land to Vincent Boreing. One of the calls of this deed is as follows: “Thence S. 70 E. 38 poles to chestnut oak and two.- hickory saplings,' thence S. 29 E. 19 poles to a chestnut oak sourwood on the agreed line between the said Joseph Craft, Sen., and Joel Wright’s heirs.”
On January 17, 1890, George Venters and Susan Venters (formerly S-usan Wright) conveyed to George F. Cross certain timber located on certain land. The first call of this deed is: “Beginning at the mouth of Lick fork of Holbrooks branch, and running thence up tlie right hand point to the divide between Joel Wright and Joseph Craft.” •
Where the dividing line is uncertain and there is a bona fide dispute as to its location between adjoining landowners, who agree on the dividing line and execute the agreement by marking the line or building a fence thereon, such agreement is not prohibited by the statute' of frauds, nor is it within the meaning of the provisions of the law regulating the manner of conveying real estate, since the parties do not thereby undertake to acquire and pass title to real estate, as must be done by written contract or conveyance, but simply by agreement fix and determine the situation and location of the thing that they already own, the purpose being to identify their several holdings by something agreed on, and to make certain that which they regarded as uncertain. And such an agreement, followed by possession with reference to the boundary so fixed, is conclusive on the parties, although the possession may not have been for the full statutory period, it being sufficient to show that the dividing line was actually established, and thereafter recognized or acquiesced in by the parties for a considerable time. Garvin v. Threlkeld, 173 Ky. 262, 190 S. W. 1092.
Since Greer and the Holbrooks were engaged in an effort to slander their own title, and since the Wright heirs were either interested,' or related to those who were
Judgment reversed and cause remanded with directions to enter judgment in conformity with this opinion.