124 Ky. 314 | Ky. Ct. App. | 1907
Opinion op the Court by
O’Rear— Reversing.
The question for decision on this appeal is the correct location of a line of a survey of 100 acres of land made by Chastain & Waggoner in Clay county (now Leslie), March 13,1870, on which a patent was issued to them. The controversy arises upon a conflict between this patent and one issued in 1884 to F. G. Morgan. Under the statute, the junior patent, to the extent of the conflict, is void. The question for decision is one of law, as there is no controverted fact in the case before us. To a clear understanding of the point decided, and of the contentions presented, we append a map of the two' patents, and another necessary to be located. The John Gilbert, Sr., patent, dated August 9, 1831, is located because the Chastain & Waggoner patent calls for some of its lines. Furthermore, the presumption is that patentees of vacant land make their entries and surveys with reference to elder surveys which are known. The Gilbert patent is located by actual survey so far at least as is material to a correct application of the rules of construction to the patents in dispute. Both sides agree to this fact.
The F. G-. Morgan patent, No. 39,601, is also located correctly. There is no material discrepancy between the surveys of it made by competent and expert surveyors for the respective parties in this litigation. The trouble arises in correctly locating the lines and corners of the Chastain & Waggoner patent. "It has but two natural, visible monuments. One is its beginning corner (A on the map), which is as called for in the patent, and actually located on the ground, 2 white oaks and a double poplar, on Salt Well Branch (waters of the Middle Fork of the Kentucky river), and a small holly near a path leading up the branch, which is also a corner to a 50-acre survey made for Timothy Pennington: The first call of the Chastain & Waggoner patent is N. 52 degrees W., 80 poles, to a stake at the mouth of the second right hand fork of Salt Well Branch (B on the map). The mouth of the
The object of definite calls and monuments in a survey made of public lands is at least twofold: One to locate to the settler or patentee the specific boundary which he acquires, the other to notify the public; those who might desire to locate vacant lands in the the vicinity for entry and survey, and those who might investigate the records to ascertain the extent of such boundaries as had been previously located and patented with the view of purchasing them. It is believed that with very insignificant exceptions there remain no vacant lands in this commonwealth, though there probably was much that was vacant, or supposed to be, in 1870, and for some years later. Nevertheless, the importance and basis of the reason for marking such original patent boundaries remains the same in other respects. There are .many thousands of acres of unenclosed lands, wood land, yet in this commonwealth. Though it may all have been long since .patented, there was never a time when the preservation of the original lines, and the certainty of the evidence of their location was more-important. Not only is the validity of the particular patent involved therein, but as other patents which may call for their
The rule of stare decisis applies with especial force
Not only is the John Gilbert, Sr., survey, as located by the civil engineers who run out the disputed boundaries in this case, agreed to be the one called for in the Chastain & Waggoner patent; but as there is no evidence of any other survey by that name in that neighborhood, and particularly none that corresponds so nearly as this one with'the patent calls, it is properly assumed that it is the one called for. Markham v. McGee, Hardin, 382; Marshall v. McDaniel, 12
Judgment reversed; and canse remanded for entry of a judgment in conformity herewith.'