185 Ky. 647 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
Keen and Osborne are owners of adjoining tracts of land. They each claim a part of the "William Hoskins 125-acre patent issued September 9, 1868. This action was commenced by Keen on February 18, 1915, for the recovery of a certain described boundary of land within the Hoskins patent then in the possession of Osborne, and for the sum of $200 in damages.
Osborne filed an answer in which he traversed the allegations of the petition and averred that he was the owner of the tract of land in controversy, describing it by metes and bounds; that his remote grantor,' William Woods and Joshua Hoskins, the remote grantor of Keen, were adjoining landowners and had, more than thirty years before the filing of the answer, and in settlement of a boundary dispute, entered into an oral agreement whereby they established a conditional line between their lands; that in pursuance to said agreement the said Woods and Hoskins took possession of the lands allotted to them, and held, claimed and used the same to the conditional' line, each recognizing the other’s right to the lands up to the line. He also interposed a plea of ad
No doubt the trial was an extended one, for the witnesses were numerous. The evidence was not in the extended form so common now in our practice since shorthand has been introduced to take down each statement of the witness, but the bill of exceptions contains only the substance of what each witness testified to as was anciently the custom in this Commonwealth. Two maps accompany the evidence. There is a great contrarity in the evidence on the point as to whether a conditional line was established between the remote grantors of Keen and Osborne. Some of the witnesses testified to such an agreement and establishment of a conditional line, the erection of a cross-fence along said line, and other matters tending to establish the existence of such an agreement and line; while on the other hand, witnesses for Keen testified that no such an agreement was made or conditional line established. Keen insists that if there was such an agreement between the remote grantors of himself and Osborne that it was a mere parol agreement, and as there was no good faith dispute as to the exact location of the true line between the lands of the parties establishing the conditional line, there was no consideration for the agreement and it was not, therefore, binding. He also contends that a parol agreement to establish a conditional line is within the statutes of fraud and perjuries unless there is a dispute in good faith between the parties, arising out of conflicting claims to the land, and no such an agreement is binding until executed by the parties taking actual possession up to the marked or otherwise designated line. In support of this statement he cites the case of Amburgy v. Burt & Brabb Lumber Co., 121 Ky. 580; Warden v. Eddington, 131 Ky. 296; Ball v. Loughridge, 100 S. W. 275. The
We are not called upon to weigh the evidence or to determine the credibility of the witnesses, because these are matters wholly within the province of the jury. Our only concern is to determine whether there was sufficient evidence upon which to submit the case to the jury upon the two questions involved, (a) the contract for the establishment of the conditional line and its execution; (b) adverse possession. As there can be no question as to the sufficiency of the evidence to have warranted the trial court in submitting these questions to the jury, and as there is no valid objection to the instructions given by the court, we are of opinion that no reversible error is presented by the appeal, and the judgment must be affirmed.
Judgment affirmed.