95 Ky. 581 | Ky. Ct. App. | 1894
DELIVERED THE OPINION OE THE COURT.
W. C. Magowan and others, devisees of James P. Magowan, brought this action against William Branham and others, alleging they were owners and in actual possession of a tract of land described in their petition; tliat defendants, all of whom are insolvent, unlawfully and without right- entered upon said land and cut and removed a large number of saw'-logs, and are giving out in speeches they own said land and claiming it adverse to plaintiff, whose title is being thereby clouded.
In their answer, made a counter-claim, tw'o of the defendants, Yanarsdale and Carter, allege they are owners and in possession of a large tract of land described, which includes the land sued for, and pray for judgment quieting their title. The two actions were consolidated and transferred to equity, and by the final judgment dismissed.
It seems to us, though argued by counsel for appellees otherwise, that the allegations of the petition, if sustained by proof, are sufficient to enable plaintiffs to maintain their action so far as it is in the nature of a bill of'peace. But even if not, as defendants, in their answer and counter-claim, prayed for their own title to be quieted, adverse to plaintiffs, and tendered an issue involving questions of superior title, it was competent for the loAver court, to try and determine it.
It appears that about the year 1786 the State of Virginia issued four patents for mountain land situated in what is noAv Menifee Comity, one to John Carnan for about 20,000 acres, one south of and adjoining it to Dean Timmons for about 22,000 acres, one Avest of and adjoining it to Roberts for about 18,000 acres, and one south of the latter and Avest of Timmons’ survey to John Carnan for about 10,000 acres, each tract being in form a parallelogram. The line di\riding the two first-named surveys is S. 81 "W"., as is the one dividing the two last-named, though not an extension of the other, being farther south.
It appears from the map, filed as evidence, that all, or nearly all, the branches or tributaries of Grlady Creek rise north of it and inside the John Carnan survey of 20,000 acres. The tract in controversy, as well as the larger tract claimed by defendants, is situated on these tributaries,, and the land is valuable principally for timber and minerals ; for the valleys of Grlady, as well as of its tributaries, are very narrow and bounded by sandstone, cliffs from one hundred to one hundred and fifty feet high,, having very few gaps or breaks.
There is filed in this case a deed from John McCalla, Collector of Internal Revenue, to Thomas Duckham, executed in 1839, for the whole of the John Carnan survey of 20,000 acres, which, as recited in the instrument, was made in pursuance of a public sale in 1816, under act of Congress of the United States, by collector of direct taxes. We need not determine as to validity of that deed, nor inquire how Duckham acquired title to the Dean Timmons survey, to which, as well as the John Carnan survey,
The lower court seemed to be of opinion that the land thus conveyed was entirely within boundary of the Dean Timmons survey, and to that extent restricted plaintiffs’
In regard to the actual boundary intended by the parties to the deed of 1842 to be conveyed, it appears from the evidence that Powell Rose’s line crosses Glady Greek at or near, though below, mouth of Salt Greek, a tributary, and not very far south of the dividing line between John Carnan and Dean Timmons’ survey, and that continuing the case up and on each side of Glady Greek to James Cock’s line, necessarily locates very much greater portion of the land inside the Carnan survey than inside the Timmons’ survey, which is comparatively little. As such would be the result of following calls for objects and according to courses well known to the parties, we are bound to conclude that the recital the land was inside the- Timmons’ survey was a mistake, if it be inter
We think it is also clear that Magowan intended to buy and Duckliam intended to convey all the land lying on G-lady Creek and branches west of Cock's line, north of Powell Rose’s line and east of the line S. 81 E., between the Carnan and Roberts’ surveys, for two principal reasons. First, Duckliam then neither owned nor claimed any other land in the southwestern corner of the Carnan survey except the boundary now claimed by plaintiff, and it was not practicable or worth the expense of dividing it, by running and making a line across the cliffs. Second, by the upper cliffs on each side of G-lady Creek,” to which the land was stipulated to run, was manifestly meant cliff's of the tributary branches, as well as those of the main creek; because the cliffs, by reason of the peculiar formation of that particular region, constituted plain, and in fact only practicable, landmarks.
It seems to us the evidence shows that James P. Magowan, in virtue of the deed made to him in 1842 by Thomas Duckham, claimed to a well-defined boundary, including all the land in controversy, and by tenants had actual and adverse possession thereof from that date long-enough to acquire title.
The defendants claim under a quit-claim deed from one Frisby, executed in 1874. But he had no paper title, nor
"Wherefore, the judgment of the lower court is reversed and cause remanded for judgment quieting plaintiffs’ title, and further proceedings consistent with this opinion.