143 Ky. 759 | Ky. Ct. App. | 1911
Opinion op the Court by
Reversing.
These two cases involve a common question and are considered together.
On June 1, 1785, three entries and'surveys of a thousand acres each were made, adjoining each other, on the Cumberland River. They were taken out in the names of William Thompson, Augustus Tabb, and Rawleigh Colson, assignee of James Quarles. On the day following, June 2d, a survey was made in the name of Barbara
The point- in dispute is the location of the boundary line separating these two patents, plaintiffs claiming thát the true boundary line between them is along the
“The owner of land may maintain the appropriate action to recover damages for any trespass or injury committed thereon, or to prevent or restrain any trespass or other injury thereto or thereon, notwithstanding such owner may not have the actual possession of the land at the time of the commission of the trespass.”
Upon the return of the cases to the circuit court the chancellor found in favor of paintiffs and adjudged them the owners of the lands claimed by them; and of that finding and judgment the defendants in each suit complain and appeal.
The question in dispute is simply the location of the boundary line between these two old patents, the plaintiffs claiming under the one, and the defendants under the other. None of the original landmarks or trees pointing out the corners of the James Quarles tract are to be found. All are gone. The evidence given by the residents as to the location of these corners is far from convincing, and the reports of the survey made by the surveyors, Vick & Harrison, are neither in all respects satisfactory. They are not as full and complete as .They should have been. Vick undertook to locate the line in dispute by ascertaining the true location of the points A and H on the river, and then running west from each point the course called for in the patent the required distance. The result of his work is not satisfactory for two reasons. In the first place, it is not shown that the points A and H, as located by him, are where they were when the survey was made. The river has been washing away its banks for some years, and there is evidence that it has cut away the bank along in front of this survey for quite a distance, so that it is altogether probable that the points A and H at the time the survey was made
It is argued that, as the three one-thousand-acre patents were surveyed on the first day of June, and the three-thousand-acre patent was surveyed on the second day of June, and the surveyor making the last survey
It is evident that this survey can not be accepted as establishing this line. He depends alone upon the uncertain memory of settlers in that neighborhood as to the location of the points A and H. He had no means whatever of verifying the opinion of these settlers that the points were properly located. However, having them as located, he proceeded westwardly along the lines called for in the original Colson-Quarles patent, and which are not in dispute, until he had run out of the distances called for in the patent. The original comer trees called for in the patent were gone. No stones were found; but, for some reason not altogether clear, he extended these lines the distances above indicated and established corners at C and G-, and then, by drawing a straight line between these newly established corners, he fixed the western boundary of the Colson-Quarles survey. Neither the southwest nor the northwest comer of the Colson-Quarles patent, as established by him, answer the description of the corners established in the
The trial judge erred in not holding the line B to L the true division line between these patents.
Judgment reversed and cause remanded for further proceedings consistent herewith.