131 Ky. 75 | Ky. Ct. App. | 1901
Lead Opinion
Rever sing.
On February 28, 1874, the Commonwealth of Kentucky issued to W. H. Nickels a patent for 34,800 acres of land by virtue of a survey of the land made by Nickels on May 16, 1873. The patent was based on 174 warrants of two' hundred acres each obtained by the patentee from the Letcher county court and for which he paid the price fixed by law. A portion of the boundary lines of the survey were established by marked trees plainly marked; the beginning point of the patent is at a point then well known by the citizens of the county and was well described in the survey ; so were other marked corners. The survey embraced large bodies of vacant lands and also lands that had been previously patented; the location of the survey is certain and definite and by a survey of the patent all the older surveys may be located. Nickels, at the time, resided in Letcher county and continued to reside there for fifteen years afterwards, within four miles 'of the land; on February 3, 1882, he sold and conveyed the entire tract covered by the patent to J. B. Altemus and W. D. Jones, who resided in Philadelphia, Pa., and purchased the lands for $34,800, which they then paid in good faith, believing that the patent was valid and that very little of it had been previously patented and that most of this had been bought up by Nickels; the State has every year since the issual of the patent collected from Nickels-and his vendees taxes on this land, the amount so paid amounting to at least $2,000.00; Letcher county has also since 1885 collected an ad valorem tax of a thousand dollars and in addition to this, taxes have been levied by some
The court below annulled the patent. It is insisted that this judgment is right for the following reasons:
1. The survey purports to have been made in blocks of two hundred acres each, when in fact the entire boundary was surveyed and the plot was made by running a base line and plotting off the land in blocks of two hundred acres.
2. There was no notice to the older patentees or those holding older entries.
3. The patentee knew that a large part of the land was covered by older grants and none of these are excluded or mentioned in the patent, the fact being that only about eight thousand acres of the land was then in fact vacant.
In American Association, Limited, v. Innis, 22 Ky. Law Rep. 1196, 60 S. W. 388, and in Uhl v. Reynolds, Register, decided at this term, we fully considered most of these questions. In those cases the previous decisions of the court are collected and we said then, however much we might be inclined as an original proposition to question the correctness of the rule heretofore established, we can not depart from it after it has been acted on for so many years and the title to large bodies of land have been bought and sold upon the faith of these decisions. To do so would be to depart from the rule of stare decisis.
The arguments that are so earnestly pressed upon us by appellee’s distinguished counsel and elaborated in the dissenting opinion of Judge O’Rear in the case of Uhl v. Reynolds, were forcibly stated by Judge Pryor in his dissenting opinion in Register v. Read, 72 Ky. 103, and for us now to take this view and hold a patent issuing for more than two hundred acres
There is no- provision of law inhibiting the inclusion of several surveys in one patent; it being settled that one person might at the same time make two surveys each of two- hundred acres or more at his election, the land office issued patents upon these surveys including in one grant as many surveys as were desired at the request of the patentee. This practice followed the ruling of the United States Supreme Court by Chief Justice Marshall in Polk’s Lessee v. Wendell, 9 Cranch 87, which was approved in Smelting Co. v. Kemp, 104 U. S. 648. When there was no statute for bidding this- and such patents have been recognized by this court, after large sums of money have been invested on the faith of this practice of the land office and these decisions, it would be, in our judgment, a departure from well settled legal principles for us now to declare such patents invalid. Besides, this patent comes within an amendatory act which was evidently made for the purpose of inducing the taking up of the mountainous and timbered lands- of the State in large areas in this way.
The act of March 27, 1872, provides: “Section 3, chapter 2, Revised Statutes, entitled Treasury Warrant Claims, be and the same is so amended as to authorize the register of the land office to issue patents to persons who- have surveyed or may hereafter survey vacant and unappropriáte-d lands in this Commonwealth for any number of acres so surveyed and appropriated: Provided, that this act shall only apply
The patent before us was issued under this act. It in express terms authorized the register of the land office to issue patents to persons who had surveyed or might thereafter survey vacant lands for any number of acres so surveyed. To hold that only two- hundred acres could be surveyed or only two hundred acres embraced in one patent under this act would be to deny proper effect to its express terms, after it had been acted upon by the authorities of the State, and the patent issued under its authority by the State has been purchased in good faith, by those who gave credit to the official act of the State, as shown by the patent issued under its seal. Section 3 of the original act authorized any one to enter and survey, “any number of acres of such land in the' county not less than twenty-five- nor more than two hundred. ’ ’ The amendment authorizing surveys “for any number of acres” was necessarily intended to remove the limit as to the quantity of land that might be embraced in one survey, for it made no other change in the existing law.
We, therefore, conclude that the patent is not void because it covered 34,800 acres of land. There are no exclusions in the patent; it is entirely silent as to prior grants. The question does not arise, therefore, in this case as to the effect of th-e exclusion in a patent of prior grants which, are not identified. The fact that the surveyor who made the survey and the patentee who obtained the grant knew that the patent embraced land that was covered by prior grants can not affect the validity of the patent. A patent is nothing more nor less than a deed from the State, and an innocent purchaser of land covered by a patent stands
We conclude, therefore, that the patent is not invalid as to the lands embraced in it which were vacant or unappropriated at the time of the survey. As to all lands covered by it that were not then vacant and unappropriated, it, of course, passed no- title. The record is not so presented as to enable us to determine what lands passed1 to appellants under it or to determine anything as to what prior grants existed or any of the rights of occupying claimants to the land. The only question, before us is as to the validity of the patent for such land as was vacant and subject to appropriation. To this extent we are of opinion that the patent is valid and that the court below erred in adjudging it void.
Judgment reversed and cause remanded, with directions to the court below to enter a judgment dismissing the petition.
Dissenting Opinion
Dissenting Opinion by
The majority opinion in this case is in line with that of Uhl, etc., v. Reynolds, Register of the Land Office, etc., decided at this term of court, and as I have dissented in that case, the same reasons may be referred to as a part of the basis for this dissent.
In this case it appears that there was never an act
“An^ actual settler of any vacant or unappropriated land shall have a pre-emption right to any number of acres, not exceeding one hundred, to be laid off as nearly as possible in a square, his improvements in the center. Before any other person shall locate the same, three months ’ notice of intention to do so mu'st be given to the actual settler, in which notice the land intended to be taken up or appropriated must be described. ’ ’ This notice was not given.
The special acts of 1871 and 1872 referred to in the majority opinion were not pleaded, and can not and ought not to be considered by the court, therefore, in the determination of this case. (Section 119 of the Civil Code.)
The taking of this patent by appellant’s vendor was a fraud upon the Commonwealth; in direct contravention of the settled purpose and policy of the State in reserving its vacant lands in lots of 200 acres to actual and bona fide settlers for the purpose of indue
It is further my opinion that the judgment of the circuit court denying the validity of the Nickels patent was right; right in law, and right as being in support of a sound public policy.