148 Ky. 316 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
This appeal grows out of a dispute between the Middlesborough Town & Lands Co. and W. D; Hurst and wife over a division line. They claim title from a common .source. The issue is necessarily a narrow one and is, in fact, confined to the location of a certain walnut tree, recognized by both parties as a corner. The location of this tree settles the controversy.
The town of Middlesborough emptied all its sewage into this creek. It was. a sluggish stream, and it was found necessary to adopt some means to make: it more expeditiously carry off the waste matter deposited in it. This, it was thought, could be accomplished by straightening the creek, or rather, by digging a canal and having the creek abandon its old bed and run in the canal, and the town accordingly caused this to be done. In building the canal the walnut tree, which was a recognized corner, was cut down, and the bed of the canal now occupies the place where the tree once stood.
Recently the Middlesborough Town & Lands Co., conceiving the idea that Hurst had enclosed a part of its land, brought a suit in the Bell Circuit Court in which it prayed that it be adjudged the owner and entitled to the possession of the land, and that the defendants be directed to surrender same up to it. The defendants denied that they were possessed of any of the land belonging to the plaintiff, and pleaded affirmatively that the fence which they had built enclosing their land was along the true boundary line. The case was tried out on
The accompanying map serves to illustrate the lay of the land and respective claims of the parties. “B” represents the point where appellant claims the walnut stood, and the line “B-X-Y-Z” the- true boundary line, according to its contention. “C” represents the point where appellees claim the walnut stood, and the line “C-D-E-F” the true division line, as claimed by appellees. The location of the old creek bed, the canal and the railroad are designated on the map.
As opposed to this testimony, appellees introduced one L. K. Rice, a surveyor, who had surveyed this same line. He knew the walnut to be a corner tree and he went back to the point “F,” where there was a black gum which was pointed out to him as a corner tree, and which had the marks qf such, and, reversing the calls, ran out the course and distance called for in the deed. This made the location of the walnut at “C,” the point claimed by appellees. Several witnesses were introduced by appellees who testify that there was a lane between the two lines contended for by these litigants, and a fence formerly stood on each side thereof; that some years ago the fence between the points “B-X” was removed, but that the fence between the points “C-D” remains now where it then stood; that this fence ran up to the walnut tree when it was standing on the bank of the creek, and that a gate hung to said tree and formed a part of this line fence. Mrs. Fitzpatrick testifies that, in her judgment, the location of the tree as fixed by the witnesses for appellant is correct. She had sold her land many years before and had not been upon the place a great deal since she disposed of it. On the other hand-,
With the evidence thus conflicting, it was the province of the jury to say where the trees stood. They saw the witnesses, observed the- way and manner in which they testified, were doubtless acquainted with many of them, and are much better qualified to pass upon the weight that should be given their testimony than we. Under such circumstances we would not be warranted in disturbing their finding.
Judgment affirmed.