167 Ky. 208 | Ky. Ct. App. | 1915
Opinion op the Court by
—
Reversing.
On the 28th day of May, 1853, a patent, based on a survey made on August 11th, 1852, was granted to James Napier, for two hundred acres of land, on Abner’s Branch, a tributary of the Greasy Fork, of the Middle Fork of the Kentucky River, and on Fork of Lovely, in Harlan county.
On June 4th, 1877, James Napier conveyed the portion of the lands embraced in the above mentioned patent, which lies to the south of the ridge which separates the waters of the south prong of Bear Branch from those of Half Mile, a tributary of Abner, to the appellee, Israel Napier. On June 16th, 1890, James Napier conveyed all of the lands embraced in the patent to appellee.
On July 19th, 1897, Abner Eversole, the sheriff of Leslie county, in which county the lands are situated
On September 6th, 1902, the Louisville Tin & Stove Co. conveyed the lands to W. P. Hall.
On September 30th, 1907, W. F. Hall, by deed, conveyed the lands to appellee.
On the 20th day of April, 1909, the appellee brought this suit in the Leslie Circuit Court, claiming that he was the owner of the lands, and that appellant, John B. Miniard, had wrongfully gone upon the lands and cut and carried away a large number of timber trees, and sought to recover the value of the trees from him.
The appellant denied the ownership of the lands by appellee, and claimed to be the owner of the portion of the lands from which he had cut and removed the trees, by the adverse possession of himself and those through whom he claimed title, for the period necessary under the statute to vest title in him, and that the purchase by appellee of the lands was champertous, and his title on that account was void.
The allegations, as to adverse possession and champerty, were traversed of record.
The trial resulted in a verdict and judgment against appellant for the value of the trees, and he seeks to have the judgment reversed.
The appellant, upon the trial, introduced evidence, which conduced to show that on May 28th, 1853, a patent based upon a survey made on the 9th day of September, 1852, was granted to one Joseph Miniard for two hundred acres of land, and adjoining this tract, a patent based upon a survey made on the 17th day of November, 1855, was granted to Israel Miniard on August 15th, 1856, for fifty acres of land. Previous to the year 1860, Israel Miniard, who had theretofore entered upon the fifty acre tract, sold it to Joseph Miniard, and executed to him. a writing evidencing the sale, and promising to make a conveyance and delivered Joseph Miniard the possession of the land. The heirs of Israel Miniard conveyed the fifty acre tract of land, by deed, to Joseph Miniard in 1882. The lands, which were, embraced by
The appellee put in evidence a patent granted to Ballard Begley, for two hundred acres of land, which was based upon a survey made April 27th, 1889, and which covers, in addition to a considerable quantity of other lands, the greater part of the James Napier patent, and most, if not all, the interference between the James Napier patent and the patents to Joseph Miniard and Israel Miniard. Ballard Begley conveyed the lands embraced in the patent, to him, to appellee, by a deed, on June 26, 1894, which deed was read in evidence. The appellee, also, read a patent which granted to him one hundred acres of land, which was based upon a survey made June 3rd, 1873. Also a deed to appellee from James Napier for the two hundred acres which were embraced in the patent, which was based on a survey on
The comer trees, marked as such, to the Joseph Miniard and Israel Miniard patents, are still standing, and the patents can be and have been several times surveyed, and the corners can be located by the calls for courses and distances set out in the patents.
Both appellant and appellee offered instructions to be given the jury as the law of the case, but all were refused by the court, to which exceptions were taken.
The court then, upon its own motion, gave to the jury seven instructions, by which it was to be guided in its verdict. The appellant objected to each of the instructions and excepted to the rulings of the court overruling his objections. Appellant’s motion to set aside the verdict and judgment and grant him a new trial being overruled, he excepted thereto, and appealed to this court.
The appellant now insists upon a reversal of the judgment because the court misinstructed the jury as to the law of the case, and in' a way which was prejudicial to his substantial rights.
Instruction No. 2 directed the jury, that if it believed from the evidence that the appellant had, for fifteen years or more before the commencement of the suit, been in the actual, adverse, open, notorious, and continued possession of the land in controversy, claiming the same as his own, to a well defined boundary, to find for the appellant.
The objection of appellant to this instruction, under the facts of this case, is well founded. The appellee, as the claimant under the senior patent, is the owner of the land upon which, the trees stood, and therefore the trees, unless he or one of his vendors has lost the ownership of the lands by the adverse possession of appellant and his vendors, for the statutory period, or the acquisition of the title by appellee is champertous. If no adverse possession by the appellant or his venddr has ever, existed, the title to the land, without question, is in the appellee. No adverse possession of lands can exist unless the possession be actual, and not constructive. Where there is no actual possession of land by any one, the owner of the title thereto has the cpnstructive possession of it. There can be but one valid title, and the owner of it constructively possesses the land, unless another has the actual possession. An actual possession of some portions of a tract of land is frequently created by construction or operation of law, but there must always be an actual possession of at least some portion of the tract. For an instance, if one resides upon a tract of land, claiming to own it under a deed or patent, he is in the actual possession of the land to the extent of the boundaries of his deed or patent, although the lands are not enclosed; or if one, the owner of a tract of land by virtue of a deed or patent, enters upon it and improves and encloses a portion of it with the intention to possess all of it, he is in the actual possession to the extent of the boundaries of his deed or patent, by construction to the extent that no one else has actual possession of it.
It is, too, well settled for Controversy, that the claimant of land, by adverse possession, is entitled to add to the period of his possession that of his vendors, if the possession is continuous, to make out the statutory period necessary to toll the right of entry of the title holder.
There must necessarily be a privity between the holders of the possession before they can be tacked together, for else each possession would be an independent trespass. Slusher v. Howard, 88 S. W., 1109; Adams v. Tiernan, 5 Dana, 394; Beals v. Brooks, 7 J. J. M., 232; Winn v. Wilhoite, 5 J. J. M., 521; Hood v. Walton, 2 A. K. M., 620; Shannon v. Kenney, 1 A. K. M., 3.
It is only one who enters upon land without color of title, or one who claims under an inferior title, and enters upon the interference with the superior title, while the holder of the superior title is in the actual possession of the lands embraced in the senior grant, who is restricted in his possession to his enclosure. The one who enters under color of title under a patent or deed, to him, is in possession to the extent of his boundaries, unless the real title holder is in actual possession at the time of the entry of the claimant who enters under color of title. In the case at bar, the vendor of appellant and under whom he claims title, and who was a junior patentee, entered upon both patents claimed by him at a time when the record fails to show that there was any claim of actual possession by the senior patentee under his patent. There is no evidence conducing to show that the senior patentee or any one claiming under him ever entered upon the interference between the patents,
For the reasons indicated, instruction No. 2 was erroneous and prejudicial to the substantial rights of appellant. Grigher v. Wheeler, 12 B. M., 183; McLawniss v. Salmons, 11 B. M., 98; Fox v. Hinton, 4 Bibb, 559; Smith v. Lockridge, 3 Litt.; 19; Taylor v. Shields, 5 Litt, 88; Taylor v. Cox, 2 B. M., 429; Whitley Coal & Land Co. v. Lawson, 94 Ky., 603; Ky. Land & Emigration Co. v. Reynolds, 60 S. W., 635; Abner v. Creech, 79 S. W., 247; Martin v. Hall, 152 Ky., 677; Combs v. Stacey, 147 Ky., 222; Harrison v. McDaniel, 2 Dana, 144; Bassett v. Lush, 156 Ky., 490; Burt & Brabb Lumber Co. v. Sackett, 147 Ky., 232; Ferrell v. Bauer Cooperage Co., 159 Ky., 716.
If the appellant and those under whom he claims title were in the adverse possession of the lands in controversy, at the time of the making of any of the deeds of conveyance for the lands in controversy, through which appellee claims, including the one from his father, in 1890, such a sale was champertous, and each of them should be included in the instruction upon that subject, as well as the sale in 1890.
Upon the facts shown by the record, the onl-y instructions which should have been given were as follows: First: An instruction directing the jury to find for appellee the reasonable market value of the trees -cut and removed by appellant, after the conveyance of the land to him by Hall, unless the state of facts exists as set out in instructions two or three. Second: An instruction, in substance, directing the jury to find for appellant, if it should believe from the evidence that the appellant and those under whom he claims had the actual adverse possession of the lands from which the trees were cut and removed, continuously ■ and uninterruptedly, for as much as fifteen years, at one time, previous to the cutting and removal of the trees, claiming the land openly and notoriously as his own or their own, adversely to all others. Third: An instruction, in substance, to find for appellant -if the jury should believe from the evidence that at the time of the sale and con
For the reasons indicated, the' judgment is reversed, and the cause remanded for proceedings consistent with this opinion.