154 Ky. 523 | Ky. Ct. App. | 1913
Opinion op the Court by
Reversing on Original and Cross Appeals.
In the month of February, 1912, plaintiff, Kentucky Coal and Timber Development Company, brought this action against the Carroll Hardwood Lumber Company, U. B. Buskirk and S. M. Croft, partners, composing The Kentucky River Hardwood Company, Harrison Banks, Lex Smith and Miles Smith, its employees, to enjoin them from entering upon or cutting any poplar, walnut, cucumber or ash trees from a tract of land consisting of about 1,200 acres, and located in Breathitt county, Kentucky, on the headwaters of the South Fork of Quicksand Creek, a tributary of the North Fork of the Kentucky River. The defendants, the Kentucky River Hardwood Company and its owners, Buskirk and Croft, denied the title of plaintiffs, and pleaded title in themselves to certain branded timber situated on the land in controversy. A temporary injunction was asked for and obtained. During the progress of the action plaintiff dismissed as to certain portions of the land included within the boundary set out in the petition, and the question of ownership and possesion of the branded trees claimed by defendants was transferred to the ordinary docket for trial by jury. As to the timber on certain portions of the tract described in the petition, the trial court gave a peremptory instruction in favor of plaintiff. The question of ownership and title to the remaining part of the timber was submitted to the jury, ■and there was a finding in favor of the defendants.
The principal chain of plaintiff’s title is through a patent for 154,800 acres of land, issued to Stephen G. Ried, June 15, 1872, from which there are excluded 25,-800 acres of land theretofore patented and otherwise appropriated. Plaintiff proved his chain of title from Stephen G. Reid, and introduced its surveyor, H. H. Gibson, who testified that there were no patents 'older or senior to the Reid patent lying within the boundary in. controversy except nineteen patents, some of which lie* entirely within that boundary, while others lie only partially within that boundary. The following are the.* nineteen excluded patents:
(1) Benjamin Clemons patent, No. 11,141, for 50 acres, issued June 21,1848, lying along South Quicksand Creek, at the mouth of Oldhouse Branch.
. (2) Benjamin Clemons patent, No. 11,139, for 50 acres, issued........................................................................, lying on South. Quicksand Creek a short distance above Land Fork.
(3) Benjamin Clemons patent, No. 11,138, dated June 2, 1848, for 50 acres, lying on the South Fork of Quicksand, just below the mouth of Six Mile.
(4) Benjamin Clemons patent, No. 11,140, dated June 2, 1848, for 50 acres, lying on the head1 of South Fork of Quicksand, just above the mouth of Six Mile.
(5) Combs and Byrne patent, No. 43,139, dated January 1, 1870, for 200 acres, located just west of the old conditional line between Moses Clemons and John Clemons.
(6) Combs and Byrne patent, No. 43,147, issued January 1, 1870, for 20 acres, lying on Oldhouse Branch just above its mouth.
(7) Combs and Byrne patent, No. 43,138, issued January 1, 1870, for 200 acres, lying on Shepherd’s Fork of the South Fork of Quicksand, adjoining patent No. 43,137.
(8) Combs and Davis patent, No. 43,343, dated August 8, 1868, for 200 acres, lying on the east side of the South Fork of Quicksand, including the mouth of Five Mile Branch.
(9) Combs and Byrne patent, No. 41,344, dated August 8, 1868, for 200 acres, lying at the head of Road Fork of the South Fork of Quicksand.
Of this land only a small portion of the southwestern comer is included in the land in controversy.
(11) John Clemons patent, No. 51,702, dated May 1, 1876, for 200 acres, lying on the Laurel Fork of the South Fork of Quicksand.
(12) Moses Clemons patent, No. 41,338, issued ..............................................................., for a tract of land lying near the head of Two Mile.
(13) John Clemons patent, No. 41,339, issued August 8, 1868, covering a tract of land at the head of Five Mile.
(14) Manford Stacey patent No. 42,855, issued ............................................................, covering a tract of land on Five Mile.
(15) George Bradley patent, No. 42,773, issued May 3, 1870, for a tract of land on Six Mile.
(16) M. J. Amix patent, No. 43,142, issued June 27, 1879, for a tract of land lying upon Upper Twin and Lick Branches of Main Quicksand Creek.
A small portion of land lies across the dividing line between Main Quicksand and South Quicksand, within the boundary in controversy.
(17) The John Clemons patent, No. 41,340, issued August 8, 1868, for 100 acres, only a very small portion of which lies within the boundary in controversy.
(18) Isaac Clemons patent, No. 20,774, for 50 acres, now known as the Goff tract, lying on Walnut Cove Branch of Two Mile.
(19) C. B. McQuinn patent, No. 20,785, issued December 29, 1852- for 50 acres, a tract of land lying on Plum Cove Hollow and Cane Patch Branch of Two Mile.
Of the foregoing patented boundaries, Nos. 10, 11, 12, 13, 14 and 15 are expressly excluded by plaintiff’s petition. Plaintiff also proved title through the Combs and Byrne patents Nos. 43,137 and 43,138 and dismissed its action as to Combs and Byrne patent No. 43,139. Plaintiff also claimed title under 'Combs and Davis patents Nos. 41,343 and 41,344. It further appears that Benjamin Clemons,, who owned patents Nos. 11,138, 11,139, 11,140 and 11,141, died leaving fifteen children. Plaintiff has acquired by deed the interests of several iof these children. Moses Clemons, one of the children, acquired the interests of seven of the children. Plaintiff showed further title to the land " in controversy by purchasing from certain heirs and vendees of Moses
Defendants claim title to the timber in controversy lying on several tracts of land embraced in the boundary in dispute, by purchase from Hagins and Clark, who purchased the same from Harrison Clemons and from the widow and certain children of Moses Clemons. Defendants- also attempted to prove a chain of title through Davis Boss and James Curry, under and by virtue of certain grants made by the Commonwealth of Virginia to Boss and Curry in the year 1788. The court, however, refused to permit the introduction of defendants’ title under the Boss and Curry patents. Defendants, therefore, relied on the possessory title of Moses Clemons and his heirs.
As plaintiff owns an undivided interest in the four patents issued to Benjamin Clemons, and defendants; own an undivided interest in the timber thereon, the trial court reserved for future determination the rights; of the parties under and by virtue of those patents. Of this action of the trial court there is no complaint from either side.
Upon the. question of Moses Clemons’ possessory title to the main portion of the land, the evidence in substance is as follows:
For some time prior to the civil war, Benjamin Clemons lived on a place known as the “Big Orchard,” on the South Fork of Quicksand Creek, some seven or eight miles from the land in controversy. Some time later, having obtained the four patents hereinbefore referred to, he moved to the mouth of Oldhouse Branch. When he first moved to the Oldhouse Branch he made no claim to any of the land except the four patents referred to. Some two or three years later he marked out a boundary on the land lying around the head of South Fork of Quicksand, and1 the marked boundary enclosing this land is the one now relied upon by dedefendants. After Benjamin Clemons had been there for a while he extended his clearings up to the Old-house Branch. Some time after the close of the war,, Moses Clemons, who was then living at Big Orchard,, purchased the interests of certain of his brothers and sisters in the lands of Benjamin Clemons, who had died, and moved to the house built by his father at the mouth of Oldhouse Branch. He continued to live there for several years, when the house was burned, and h^
The court instructed the jury as follows:
“ (1) The court says to the jury that they will find for the plaintiff unless they believe from the evidence that Moses Clemons enters upon the land in controversy and outside his patent boundaries, or some parts thereof for at least fifteen years before the ‘ entry of the plaintiff, or those under whom it claims, and before the filing of its petition herein, and that he and those claiming under him, used, occupied, controlled and claimed the same or some parts thereof as their own continuously, openly and notoriously for a period of fifteen years to a well defined or marked boundary; and if they so believe they will find for the defendants such land, and the poplar, cucumber and ash trees standing upon such lands as they believe from the evidence they have so held that bears the brands of the letter C or figure 2 and the figure á enclosed in a circle.’
“(2) The court instructs the jury that an entry upon the land patented to Benjamin Clemons is not such an entry as is contemplated in instruction No. 1, and that in determining the question as to whether or not Moses Clemons had possession of the land described, in the pleadings, they cannot consider any evidence offered by defendants as to the acts of ownership or entries on any of the land made by Benjamin. Clemons outside of his patents.
“(3) If the jury believe from the evidence that Moses Clemons entered in the land under Benjamin Clemons, his possession was confined .to the patents*530 made in the name of Benjamin Clemons and the land fenced by the said Benjamin Clemons, unless Moses Clemons entered outside of said patents or enclosures, either by himself ‘or tenants, and took possession of other lands, by clearing and fencing, with intention to possess the whole.”
Without entering into an elaborate argument of the questions involved, we deem it sufficient to state our conclusions as follows:
(1) There was sufficient evidence that Moses Clemons entered outside of his and his father’s patent boundaries upon the land in question, made. clearings thereon, and used, occupied and controlled the same or some parts thereof, continuously, openly and notoriously for a period of fifteen years, to a well defined and marked boundary, to take the case to the jury, and we cannot say that their finding in favor of the defendants is flagrantly against the evidence.
(2) The instructions, so far as the question of adverse possession is concerned, properly presented the law of the ease. Color of title was not necessary. New Domain Oil Gas Co. v. Gaffney Oil Co., 134 Ky., 792. Of course Moses Clemons could not acquire title against a superior title holder by merely occupying either his or his father’s patents and claiming beyond his patent boundary, but if he entered upon the land outside of his patent boundary, made clearings thereon, and used, occupied and controlled the same, claiming to a well defined or well marked boundary, continuously, openly and notoriously for the statutory period, he thereby acquired title by adverse possesion.
(3) Defendants purchased the trees in question from the vendees of Hagins & Clark. In the deed the trees are described as being branded with the letter “ C ” or with the figure “2.” The trees were of merchantable size. Hagins & Clark were engaged in the logging business. Some of the parties say that the trees were to be removed in three years; others that they were to be removed in five years. Hagins testified as follows: “We did not buy it (the timber) to have it taken out at that time, and we could not have had it taken out then without loss. It was a speculation, and we also had a verbal contract with the parties that we were not to deliver it at that time, not until somebody else could do something to help us; not until the Kentucky Union Land Company commenced to operate on the lower end
On a return of the case the court will qualify instruction No. 1 by adding the words “unless you believe as in instruction No. 4,” and will give in substance the following instruction, numbered 4:
Although you may believe from the evidence as set out in instruction No. 1, yet if you further believe from the evidence that at the time of the execution of the deed from the heirs of Moses Clemons to Hagins & Clark in the year 1898, the parties thereto contemplated a severance of the timber from the soil, you will find for the
CROSS APPEAL.
(1) It is insisted that the court erred in peremptorily instructing the jury to find for plaintiff as to the lands embraced in Combs and Byrne patent No. 43,138, Combs and Davis patents Nos. 41,343 and 41,344, and M. J. Amix patent No. 41,342. In this connection it is argued that Moses Clemons marked a boundary embracing these patents, and extended his clearings over on the land covered by them prior to the time that the surveys were made or the patents, issued. The patents were issued in the year 1870, on surveys made during the year 1868. One or two witnesses say that Moses Clemons moved to Oldhouse Branch some time after the war. The exact time is not definitely fixed. On the other hand it appears that Moses sold' to his brother a tract of land by deed dated November 23, 1868. This tract of land covers Big Bottom, the place where Moses lived prior to moving to the residence of Benjamin Clemons. The deed, after describing the land, recites “being the same land where Moses Clemons at pres-' ent lives.” It is certain, therefore, that Moses Clemons did not move to the Oldhouse Branch until after that' date. Furthermore, the precise time when he began to extend his clearings beyond his father’s patents, and
(2) The next question involves the propriety of the court’s action in excluding from the consideration of the jury evidence tending to show that two of the Ross and Curry patents covered the land- in controversy. The patents in' question are a part of a large number of surveys made by one Ceorge.Hart as deputy surveyor of Fayette county, and later of Bourbon county, Kentucky, in the years 1786, 1787 and 1788. Certain of these -patents call for “Remarkable Long Rock House on Buckhorn.”
Basing their arguments on the fact that in the original description of certain o-f, the patents, the word “Troublesome” was erased and the word “Buckhorn” written over it, and the fact that all,the surveys could not be placed on Buckhorn, and .that,there .was no. Remarkable. Long Rock House on Buckhorn. and there is oné'
Judgment reversed both on original and cross appeal, and cause remanded for a new trial consistent with this opinion. In the meantime the injunction will be continued in force.