177 Ky. 653 | Ky. Ct. App. | 1917
Opinion op the Court by
Affirming;
The appellee, J. B. White, brought this action in the court below against the appellants, Lloyd Martin, Wm. Martin, Wm. Howell, James Cooper and John Willoughby, alleging in the petition his title to and possession of a particularly described tract of land lying on Red River in Powell county; that the land was devised him by the will of his cousin, Mrs. E. C. Chenault, and that he, his testatrix, and her vendo,rs, immediate and remote, had held and been in the actual possession of the land, claiming it to a well defined, marked boundary, adversely to the appellants and all others for more than fifty years continuously next before and down to the institution of the action; that on or about the 12th day of January, 1916, and at divers other times since that date, and before the institution of appellee’s action, the appellants wrongfully and illegally entered upon one hundred and fifty acres of the land mentioned, including what is known as “Groom’s Mountain,” while in the peaceful possession of appellee and his tenants, and wilfully cut down, destroyed and converted to their own use numerous trees and timber of value, growing on the land, and were yet continuing such trespasses.
The petition also alleged the insolvency of the defendants and the irreparable injury that would result to appellee from their continued trespasses committed on the land,' unless restrained by an injunction from so doing. The prayer of the petition asked for an injunc
The appellant, Wm. Martin, by separate answer, denied the acts of trespass alleged in the petition, also denied appellee’s title or possession of the land, and alleged title in himself to the one hundred and fifty acres in question and his possession thereof, adversely to appellee; that the title to the land was conveyed him by deed from one David Thrasher, who, on October 15,1915, procured a patent therefor from the Commonwealth of Kentucky, and that the appellant, Wm. Martin, upon receiving the deed from Thrasher, took possession of the land and has since continuously held such possession. The answer was made a counter-claim and by the prayer thereof the court was asked to adjudge the appellant, Wm. Martin, the owner of the land and. quiet his title to same. The other appellants by answer severally denied appellee’s title to the land, also his possession thereof, and .alleged title thereto and possession thereof in the appellant, Wm. Martin, and that what cutting of timber they had done thereon was by his direction and under employment by him. The appellee’s reply controverted all affirmative matter in the several answers of the appellants; and, in addition, alleged that the patent obtained by the appellant, Wm. Martin’s vendor, David Thrasher, upon the land was void, because of the existence of an elder patent embracing it; also that the sale and conveyance of the land from Thrasher to appellant was champertous because appellee was then and prior thereto in the actual adverse possession thereof.
Although the action had been brought in equity, on motion of appellants it was transferred to the law docket for a trial by jury of the issues of fact made by the pleadings. The trial resulted in a verdict for the appellee. Appellants filed motion and grounds for a new trial, which the court overruled. Judgment was then duly entered upon the verdict, whereby appellee was declared to be the owner of the land, the appellants were perpetually enjoined from committing further trespasses thereon or otherwise interfering with appellee’s peaceable possession thereof, and the latter was awarded his costs. From that judgment this appeal is prosecuted.
Only two of the several grounds urged by appellants in the court below for a new trial are sériously relied
The appellants and others introduced by them, mainly relatives of Wm. Martin, in a general way denied the possession of the land by appellee and the Gays, but failed to specifically show its possession by any other person prior to the issual of the Thrasher patent. In fact, appellants’ evidence showed no actual possession of the land, other than that of appellee and the Gays, until the purchase thereof by Martin of Thrasher.
While the evidence of appellants is contradictory of that of appellee, that of the latter was clearly sufficient to require the submission of the case to the jury. Where one resides upon any part of a tract of land, under a patent, deed or title bond, his possession will extend to the boundary contained in the patent, deed or title bond, in so far as it is not adversely held by another. The same would be true if his entry and possession were made and taken without written evidence of title, if the land were included in a well defined, marked boundary, and his possession actual, continued and adverse to all others, for as much as fifteen years, and was claimed all the while to the well defined, marked boundary embracing the whole. Everidge v. Martin, 164 Ky. 497; Dawson v. Shelby Creek Coal Co., 173 Ky. 796. The claim of appellee to the lánd here involved comes clearly under the rule of law last stated. On the other hand, the claim of the appellant, Wm. Martin, to the land seems to be barred by the equally well recognized rule that although one may claim title to land under a patent from the state, the patent will confer on him no legal title to the land, if another has by previous actual, adverse possession for fifteen years, acquired title thereto, dehors a patent or deed.
It is our conclusion that the evidence of appellee not only entitled him to a submission of the case to the jury, but was on the whole of such weight, notwithstanding the conflicting evidence introduced for the appellants, to authorize the verdict returned by the jury. If right in this Conclusion, it follows that the trial court did not err in refusing the peremptory instruction.
Appellant’s complaint of the instructions is without merit. No error is pointed out by counsel in the instructions that were given, and while one or two of those offered in their behalf might with propriety have been given by the court, as those actually given contained all
The record discloses no cause for reversing the judgment and it is, therefore, affirmed.