155 Ky. 509 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
This is a controversy over a gravel bar in Floyd’s Fork, near the mouth of Broad Bun, in Jefferson County, Floyd’s Fork being a tributary of Salt River. The facts of the case are these: In the year 1869, Bobert Welch, who owned the land on both sides of Floyd’s Fork, died testate in Jefferson County. By his will, which was duly admitted to probate, he devised to¡ his son. George Welch, the land on the west side of Floyd’s Fork, and to his granddaughter, Mary E. Allen, who afterwards married Dave Brentlinger, the land on the
It is insisted for Jean that as the main current of the stream ran east of the gravel bar at the time that Welch’s will took effect, this fixed the line between them at the center of the stream as it then stood; and in support of this contention he relies on Degman v. Elliott, 8 S. W., 10, and Vaughn v. Foster, 47 S. W., 333. On the other hand, it is insisted for Brentlinger that as the land on one side of the stream was devised to one person and the land on the other side of the stream to another, the thread of the stream is the line; and that as there has been no shifting of the channel of the stream, the center line of the stream as it runs is the line between them. In support of this he relies on Hunter v. Witt, 21 R., 25; Holcomb v. Blair, 25 R., 974; Spurrier v. Hodges, 28 R., 804.
Neither of the parties has had any actual possession of the gravel bar, and it is covered by water SO' much of the year that it is incapable of use for any practical purposes except to get gravel there when the stream is low. In all cases arising out of a will, the effort of the court is to carry into effect the intention of the testator if practicable. The present owners simply stand in the shoes of the two original devisees. The testator intended the stream to be the line between the devisees. Gravel bars like this frequently appear and disappear
On the cross appeal, it is complained that the chancellor erred in giving judgment in favor of the appelleh only for $1.00 for the gravel taken away from the gravel bed. But the gravel was of no value in the gravel bed; taking it out of the stream did appellee no injury and it is not shown that appellant, Jean, received anything for it. The stream is full of gravel and it is customary for the owners to give the gravel away.
The judgment is affirmed on the original and on the cross appeal.