192 Ky. 447 | Ky. Ct. App. | 1921
Opinion of the Court by
— Reversing.
Tlie appellant, Kentucky Union Company, a corporation, was the plaintiff below, and the appellees, L. Shepherd and Swift Coal and Timber Company, a corporation, were the defendants below. The action was originally filed by plaintiff against defendant, Shepherd, to enjoin him from committing continuous trespasses upon the described tract of land in Perry county, Kentucky, containing 337 acres, 3 rods and 36 poles, which plaintiff claimed to own at the time of the filing of the petition and had owned since 1882. Afterwards by an amended petition the Swift Coal and Timber Company was made a defendant and the same relief was prayed as against it. The answers of each defendant denied plaintiff’s title to about 161 acres of land described in the petition, and in a second paragraph alleged that the defendant, Swift Coal and
The determination -of the whole case rests upon the true location of patent No. 24,130, issued by the Commonwealth to Jonathan Smith in 1845 as assignee of Elijah Combs, who had previously procured land warrant No. 360, and the survey and patent to Smith included a part of the land covered by that warrant. The patent issued to Smith calls for one hundred acres, while the survey made in his behalf as assignee of Combs calls for 150 acres; but in both the patent and the survey the calls and distances, are the same, and in neither of them are there any natural objects called for, except at the beginning corner, which is “a white oak and chestnut oak in the dividing’ ridge between the Line Fork and Leatherwood Creek near the chestnut flat which is the waters of the North Fork of the Kentucky river.” From the beginning corner the calls in the survey are: “Thence (1) N. 50 E. 80 po. to a stake; (2) N. 120 po. to a stake; (3) N. 72 W. 60 po. to a stake; (4) N. 66 W. 100 po. to a stake; (5) N. 20 W. 54 po. to a stake; (6) N. 80 W. 250 po. to a stake; (7') S. 67 W. 60po. to a stake; (8) S. 76 E. 286 po. to a stake; (9) S. 52 W. 203 po. to a stake; (10) S. 116 po. to a stake; (11) E. 90 po. to the 'beginning. ’ ’ The courses and distances in the patent are the same as those shown in the survey, except in the patent the distance of the ninth call is 213 poles, instead or 203 poles as stated in the survey. The court found that there was an error in both the survey and the patent, and that to locate the patent so as to make its boundaries and contour conform to the figure of the plat filed by the surveyor in the land office, the first and the ninth calls should each be reversed, so that the one iwould read “N 50 W. 80 poles” instead of
The location of the patent, according to the courses and distances contained in its calls, as well as- those in the survey, makes a figure corresponding in shape to an ordinary stew pot with the handle attached to the top of the lid and running to the left (west) at an angle of a little less than 45 degrees. We have adopted these homely illustrations in lieu of inserting figures of the three plats, because we think our illustrations can be equally as well understood and we save space, expense and time in doing so.
The court seems to have proceeded upon the theory, not only that the plat of the surveyor when there was a conflict between it and the calls in the patent, was infallible, but that it was its duty under the adjudications of this court, and the rules governing the location of patents, to make the boundaries of the patent conform to the shape of the surveyor’s plat; though to do so would necessitate the reversing of calls, and the inclusion of land within the located patent, though miles away from that included in the surveyor’s plat. To do this it 'was not
The supreme task of the court in locating a patent is to ascertain the intention of the parties at the time of making the survey and to adopt the location which the parties intended to make upon the ground at the time. For the performance of this task numerous rules have been adopted largely, if not entirely, analogous to the rules for the construction of other contracts and writings. None of them is inexorable nor should any of them be given indubitable weight. Everything else being equal, courses and distances surrender to natural objects, and when there are no natural objects called for considerable weight should be given to courses and distances, but in running a line along a given course to a designated point that point should be reached at the expense of the given distance. Under the same circumstances, if there is uncertainty and ambiguity in the' description contained in the patent, making the construction from the papers in the case only and excluding extraneous facts and circumstances, the plat is both admissible and potent evidence and is given considerable weight. If, however, the extraneous facts and circumstances are such as. to conclusively show that there was a mistake or an error made in the plat of the surveyor it will be disregarded and the plat will be located according to the evident intention of the parties at the time the survey was made as gathered from all the evidence in the case; for it must not be forgotten that the same surveyor who made the survey and entered the courses and distances therein from his field notes, was the 'same person who made the plat, and the possibility of a mistake on his part is almost as probable in the one case as in the other. He was as much apt to commit error in drawing an ocular demonstration of his description in the survey (which is the plat) as he was to commit an error in writing out that description from 'his
The Louisville Property Company case was also one where the plat was resorted to, with controlling influence, in an 'effort to locate the patent where “something else appeared” to establish the mistake “except a discrepancy between the figure made by platting the patent calls and the surveyor’s plat,” and in that opinion, in stating the circumstances under which the plat might be re'sorted to, and the weight to be given it, we said: “Controlling weight has often been given to the plat by this court ((where, however, no doubt, ‘something else appeared’ than merely the discrepancy between the survey and plat), upon the theory, doubtless, that the surveyor might have unconsciously made an error in transcribing his field notes of the courses, which he could not have easily carried into his plat without noticing the dissimilarity of the _ figure on the plat and the one he had laid on ' the ground and had in mind. Mercer v. Bate, 4 J. J. Mar. 340; Hogg v. Lusk, 120 Ky. 419; New Era Land Co. v. Childs, 161 Ky. 588, 171 S. W. 417; Hardaway v. Webb, 172 Ky. 589, and many other cases.” In that case it appeared that the original survey was actually located upon the ground up to its tenth corner, but the last two lines were not so located.
Clearly, that case and the others hereinbefore referred to, went no further than to hold that the plat made by the surveyor who made the certificate for the patent was not to be resorted to except where there was an evident mistake in the calls of the patent or where “something else appeared” to show that the calls of the patent were from some cause insufficient to locate the boundary; and in the cases calling for a resort to the plat it should not be accepted ns conclusive but only as “potent evidence.” There are no mistakes appearing in the face of the patent here involved and the only “something else appearing” in the case is the necessity of lengthening the last call from “E. 90 poles to the beginning” to “E. 290 poles to the beginning, ’ ’ Which makes the quantity of land contained in the plat, as thus made, 500 acres instead of 150 acres,
The facts in this case coincide with those found in the case of Hall v. Pratt, 142 Ky. 561, iwith the exception of the two circumstances mentioned, and we are convinced that the principles announced in that case should govern this one. The patent there involved is what is known as a “call patent,” i. e., the corners were all, except the beginning one, .stake corners. In such cases it is generally presumed that the land was not actually run out by the surveyor but that he platted it by protraction. The only difference between the patent involved in that case and the one here is that according’ to the proof in this case there was an actual survey made of the Smith patent to its fifth córner. In that case, as here, the lines called for in the patent closed by running* the last line to the beginning comer. The figure made, according to the calls of the patent, was an entirely different shaped one in that case from that made by the surveyor in his certificate, as is true in this, case, but the court did not allow that fact to prevail over the calls of the patent, and in doing so said: “The patent calls seem to enclose a body of land, and on the face of the patent there is nothing to indicate a mistake in it. Nor is there anything in the evidence to show that there was a mistake made by the surveyor in transcribing the notes of his work and certifying them to the land office; or that the registrar made a mistake in issuing the patent, giving in it different calls from those certified to him. The theory of there being a mistake is rested upon the fact that the surveyor’s certificate, which had a plat of the land attached to it, as required by law, shows a different figure from that made by platting the
It will be observed that the opinions in the above two cases, and in the Louisville Property Company case, permit proof of contemporaneous construction of interested parties and proof of reputation and information in the vicinity and among those having knowledge of the actual location as made by the surveyor, as facts evidencing the true location of the patent at the time it was made. Other cases upholding that rule of evidence are Howes v. Wells, 100 S. W. (Ky.) 245; Wand v. Corbin, etc., 107 S. W. (Ky.) 753; Taylor and Crate v. Forrester, 148 Ky. 201, and other cases therein referred to. It is shown in this case that Jonathan Smith not only assisted the surveyor at the time the survey was made around to the fifth corner of the patent, but a short while after he obtained his
Under the facts and circumstances appearing in the record, and guided by the principles of the opinions hereinbefore referred to we see no escape from the conclusion that the court erred in dismissing plaintiff’s petition. It should have adjudged it the owner of the land described in the petition and granted the injunction prayed for, rendering judgment in favor of plaintiff for the sum of $10.00, which was the value, according to the proof, of the timber wrongfully cut and removed from its land through the trespasses complained of.
It might not be inappropriate to say that the corporate defendant obtained its alleged title to the land 'claimed by it through a deed executed by its codefendant Shepherd a short while before the filing of this suit, but at the time the latter executed the deed he had no sort of title, possessory or other-wise, and his deed conveyed nothing. Hence the court could do nothing but dismiss the counterclaim, but in as much as that part of the judgment is not before us we refrain from further comments upon it.
Wherefore the judgment is reversed with directions to -adjudge plaintiff the owner of the land described in its petition, and to perpetuate the injunction against defendants from trespassing thereon, for judgment for $10.00 damages against them, and for other proceedings consistent with this opinion.