45 Ky. 463 | Ky. Ct. App. | 1846
delivered the opinion of the Court.
In this action of ejectment, the plaintiff’s right of re•covery is asserted on the sole ground of twenty years’ possession in those under whom he claims. There seems 1o be no question upon the evidence that there had been ■a possession by those from whom the plaintiff claims, of more than twenty .years duration, before the entry of the
Fishback claimed an interest in Early’s patent of 2000 acres. His deed to Blakeman conveys by metes and bounds 311 acres as a part of Early’s 2000 acres, calls for the patent lines, and contains no call which, so far as appears in this case, can make it embrace land outside of the patent boundary. Butthere seems to have been at the date of the deed, and for years afterwards, an uncertainly or mistake as to the true position of the patent line from the fourth to the first corner, both of which seem to have been sufficiently established by the evidence in'lhis case. They are represented on the plat by the letters K. and A., and the call of the patent indicates a direct line between the two, which, however, does not appear to have been run, or at least not marked in making the original survey. The direct line appears to comport entirely with the calls of Fisbback’s deed. It appears, however, that although Fishback claimed nothing outside of Early’s patent, an improvement was made and possession held by him or his tenant, outside of the direct line from A. to K ; and that Blakeman though professedly limiting his claim to the patent boundary, continued the same possession and extended his improvement. More than twenty years before the entry of the defendant, Blakeman marked a double elm at the place where he supposed the closing line of the patent would cross the Muddy branch, and ran and marked a line from that point, but finding that he came to the cliffs of the Kentucky river at too short a distance to be in Early’s patent line, desisted from the survey and never completed any boundary from this line now represented by the figures 1 and 2, nor was the patent line ever run until after his deed to Ferrill was made. That deed, however, calls to begin at the double elm in Early’s old line, and running up the Muddy branch, and thence eastwardly, &c, calls
If it could be assumed that the lines from 1 to 2, 3 and 4, formed a part of Eaily’s patent boundary, it might be true, upon the facts appearing, that Blakeman’s possession should be understood as having extended to those lines; and,his possession added to that of -his vendees, would have been of sufficient duration to authorize a recovery in this case, although there is no chain of -documentary title from the patentee, and the patent itself is not exhibited. But the jury have not found, and as we conceive, were not .authorized by the evidence to find, .such to have been the patent boundary. The direct line from K to A must, upon the evidence now in the record, be assumed as the true boundary ; and upon thatassumption, though it be admitted that the possession of Fern-11, under his deed from,Blakeman, may have extended to the boundary now claimed, and especially after those boundaries were actually run out and marked, if there were nothing to oppose such extension, still this possession was not of sufficient duration to authorize a reóovery; and the question arises whether Blakeman’s possession outside of the line K A, can be regarded as extend, ing beyond his actual close. It may be inferred that the adjacent land outside of the line A K, was patented, though no patent is exhibited; and if there was any possession under that patent when Blakeman entered, his possession, even if he had had a marked boundary, would have been limited to his close. This is well settled; and -even though there was no adverse possession of the land'adjacent to the line A K, and no patent, still as Blakeman entered and held possession', claiming under
The cases of Smith vs Morrow, (5 Litt. 210,) and McKinney vs Kenney, (1 A. K. Marshall, 461,) decide in effect, that a person taking possession under one claim without intending to intrude on another, but accidentally extending his enclosures over the line, acquires no possession outside of his close. The case of Brooks vs Clay, (3 A. K. Marshall, 546,) decides that the possession of the.defendanls in ejectment was confined to their •actual close, because they exhibited no demarcation by en
Wherefore, without particularly noticing the instructions, further than to say that they do not present the-case to the jury in exact accordance with the principles of this opinion, the judgment is reversed and the caése remanded for a new trial.