137 Ky. 253 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing.
This action involves the title to 28 acres of land in Knox county, Ky. The appellees claim to own it under a patent from the commonwealth issued to W.
It is conceded that the land in dispute does not lie within the lines actually given in the survey and patent; but the question in dispute arises as follows: The first line of the boundary is: “Thence with said Jones’ line S. 80 degrees W., 163 poles to a beech
The question, then, narrows down to this: Must we abandon the surveyed line S. 80 degrees W., 163 poles, and adopt Jones’ line as a part of the boundary of the patent issued to Miracle and Goodin? If we adopt the surveyed line, then .the prior.patent does not cover 'the land in dispute, and appellants are owners of it. If, however, we' abandon the surveyed line and adopt Jones’ line as the' boundary, then the prior patent does cover the land in dispute, and therefore the subsequent patent issued is void, and appellants acquired no title to it. The subjoined map illustrates the question for adjudication :
The triangle, A, B, and C, constitutes the land described in the patent to Miracle and Goodin, if we adopt the surveyed line, S. 80 degrees ~VV., 163 poles, instead of Jones’ line, as constituting a part of its boundary. A is the beginning point of the survey, and the straight line, A, B, is the first line called for by S. 80 degrees W., 163 poles, to B, which is Levi Goins’ corner. The quadrilateral figure, A, D, E, B, C, constitutes the claim of appellees; Jones’ line being A, D, E, B. It is obvious that, if the Jones’ lines be adopted as a part of the boundary of- the prior patent, the land in dispute is covered by it; and it is equally obvious that if the straight line, A, B, being the surveyed line, be adopted as the first call of the boundary, the prior patent does not cover the land in dispute. As said before, this question turns upon whether we must adopt the line actually surveyed and measured, which is A, B, or whether we will adopt the lines, A, D, E, B, which constitute Jones’ line in going from the
The question of law arising is whether or not Miracle and Goodin will be limited to the land actually surveyed and which lies within ihe lines actually run by the surveyor, or whether there can be included in the survey and patent the land which they intended to include in the boundary, and thought at the time they did include therein. We are of opinion that the line, A, B, which was actually surveyed and measured out, must control. There is no dispute that Jones’ line is not a marked line, but is merely a called or ideal line; and the question of law wé
In the case of Dimmitt v. Lashbrook, 2 Dana, 1, the court lays down three propositions which are said in the opinion to be incontrovertibly true upon principle, reason, and authority. The second of these is as follows: “"When a line is actually run, it must be as so run, the true boundary.” In Elliott v. Gibson, 29 S. W. 620, 16 Ky. Law Rep. 708, the question arose whether a line actually surveyed which was variant from another line called for was to be adopted as the boundary of the land in question. The court said: “We take it that, as the patent calls can not both be true, the material thing to determine, if possible, by any legitimate evidence, is which line was actually run or designated at the time by the surveyor.” -The court then held that the surveyed line prevails. In Mercer v. Bate, 4 J. J. Marsh, 334, the difference between a marked line and a mere ideal line which is called for in a survey is thoroughly discussed and decided. In the opinion it is said: “If Mercer’s closing line had been marked throughout its whole extent, it could not be denied that the line so marked would be also a line of Madison’s boundary. Because, calling for it, he
In Matthews v. Pursifull, 96 S. W. 803, 29 Ky. Law Rep. 1001, the opinion in the case of Mercer v. Bate, supra, was expressly approved. The very question we have here arose in that case, and in the opinion it is said: “The argument of the counsel for appellant' is that the calls for courses and distances in patent 38,433 must give way to' the objects called for- as forming the westerly boundary of this patent,'which in this case would he'the easterly line of patent 38,-437. ' The rule is well'settled that course's'and distances yield to natural objects mentioned in a deed as the boundary line thereof; but this well-established rulé does not apply in this' case, because the calls relied'oh by appellant are not'natural objects or monuments. They are merely artificial lines named in a patent under which the patentee claims
It follows from this that appellees are entitled to only the land within the line actually surveyed and measured by the surveyor on the ground, and the fact that the surveyor supposed that the line A B, which he actually surveyed, was identical with Jones’ line, is immaterial. He did not know where Jones’ line was, and the mere fact that he believed that the marks he saw upon the trees indicated Jones’ line can not avail appellees to extend by construction the line A B beyond its actual position as surveyed.