158 Ky. 321 | Ky. Ct. App. | 1914
Opinion of the Court by
Reversing.
Pendergrass sued Renia Butcher, together with her husband,- and son, to restrain them from cutting timber, and trespassing upon a boundary of land set up in the petition. Renia Butcher answered, claiming that the land described in the petition belonged to her, and was included within a boundary which had been conveyed to her by James Spicer. It seems that one John S. Robinson, who, by the way, was the grandfather of the appellant, Pendergrass, owned a large body of land containing more than 2,000 acres. On December 8, 1910, Robinson conveyed part of this land to the appellant, Pendergrass, but, in the deed, set up a boundary enclosing all of it. However, he specially excepted from the conveyance fourteen tracts which he had theretofore conveyed to others. These excepted lands were not minutely described. One of these exceptions was “100 acres, more or less, to James Spicer.” It will thus be observed that the title to both parties hereto comes from
While the appellee is holding under an older deed, yet she is none the less bound by the description in it when in a controversy with Pendergrass, the subsequent purchaser, as to location of the boundary. We quote the boundary conveyed by Spicer to Butcher, and which is also the identical description given in the deed from Robinson to Spicer:
“A tract or parcel of land lying and being in Lee County, Kentucky, on the waters of Spring Hollow and bounded as follows, to-wit: Beginning at a Beech tree on the bank of the creek about forty yards above the mouth of Spring Hollow on Bald Rock Fork Creek, said beech being marked with three hacks; thence running an East course a straight lin^ to the point of the cliff; thence with the cliff around to the head of. Spring Hollow; thence around the cliff, a South course, to the line of the Simco Land Company; thence with said company’s line, a North course, to Bald Rock Fork Creek; thence with said creek to the place of beginning, containing 100 acres, more or less, and including all the land that lays within the waters of Spring Hollow
Spring Hollow Creek or branch flows through what-is known as spring hollow. It is clear that the term “Spring Hollow” is used indiscriminately, and may designate either the creek or the hollow. This hollow is a deep basin, of triangular shape, enclosed on two sides by a series- of sand stone cliffs ranging in height from 30 to 145 feet. The base of the triangle, which is the opening of the hollow, is on Bald Rock Fork, into which Spring Hollow Creek empties. This cliff is only broken in a few places, where feeders of Spring Hollow cut through it in gorge-like fashion. These feeders begin their flow from points near the dividing ridge which encircles the cliff basin, the ridge ranging from 100 to 400 yards back from the cliff, and running all the way around Spring Hollow, in practically a parallel line to the cliff. Except for these gorges, which are from 10 to 100 feet in width, there is no break in the cliff, and it is so high and steep that no fences are needed except in the gorges, and no better land mark could be imagined. From the dividing ridge down to the cliff there is a gradual slope. The ridge is not made of a cliff, nor
The lower court did not render a written opinion, and we are left to surmise as to his reasons for finding against appellant. We take it that his judgment was based upon the failure of Spicer to deny the fraud which he practiced. If we are correct in this, we commend the trial court in a desire to protect the weak, but we are compelled to reverse the judgment, and it is so ordered.
The lower court will enter a judgment awarding to appellant the land in controversy, making the cliff the line between the parties.