112 Ky. 677 | Ky. Ct. App. | 1902
Opinion of the court by
Reversing. ’
On February 5, 1818, a patent was issued by the State to Isham Stamper for a tract of land containing 12,000 acres by survey, bearing date July 21, 1816, lying in Perry county. (Stamper settled on his patent, and while he was living on it the county of Letcher was formed, which embraced a part of his patent boundary. After this, on May 3, 18S2, Stamper, while so holding the land, gave option for “all that portion of the 12,000 .acres described in the patent from the Commonwealth of Kentucky toi Isham or Isham Stamper issued on the 5th day of February, 1818, and recorded in Book 22 page 185, of the' records of the Kentucky land office, as lies in the county of Perry, supposed to contain 10,000 acres; that portion of the 12,000 lying in Letcher, supposed to be 2,000, being reserved.” Pursuant to this option. Stamper, on June 1, 1882, conveyed by deed to Thomas Gr. Stewart, appellant’s vendor, “all that part of the Isham Stamper 12,000-acre patent lying in the county of Perry and State of Kentucky described it as follows.” Here follows a boundary by courses and distances, and then these words: “The patent referred to having been issued,February 5, 1818, and recorded on page 185 of Book number 22, in the office of the register of the land office at Frankfort, Kentucky, • — together with the appurtenances to the same' belonging.” Before the deed was made, they had the land surveyed by a
The evidence is insufficient to show aru adverse possession of any of the land by appellees, or those under whom they claim, for the statutory period. Appellants' are entitled to judgment for the relief sought, and, on the return of the case, the amount of value of the timber cut will, be fixed by the tidal court. It seems to us the reasonable construction of the record is that the trees in controversy were not cut from any of the exclusions within the Stamper patent. That patent makes no exclusions, but some exclusions are made in the boundary covered by the judgment in the disclaimer suit. Appellants will also be granted a permanent injunction as prayed in the petition.
Judgment reversed, and oause remanded fori a judgment as herein indicated. »