133 Ky. 486 | Ky. Ct. App. | 1909
Opinion of the Court by
Affirming.
Appellant claims title to a tract of land in Wayne county. The land is covered by a patent for 200 acres issued to T.C.Dick on a survey dated January 20, 1846. Appellee claims title to a part of a 1,100-acre patent issued to Morrow and Dodson on a survey dated January 19, 1846. The patent boundaries call for tbe same objects and upon tbe same courses and for tbe same distances for nine of the calls. A dispute has arisen between these two litigants as to where a certain corner and two of these lines are properly located. There can not be a conflict between them. Hence there .is no question of superiority of one grant, over the other. If the corner is established, as claimed by appellant it should be, then the strip of land in dispute would be included in the Dick patent and would belong to appellant. If, however, the lost corner and the two lines from it should be established as contended for by appellee the disputed strip would be within the Morrow-Dodson patent. Thus it will be seen that the location of the lost, corner
. One rule laid down for establishing a lost stake corner is to run the courses called for from the known corners to the intersection of the lines. Haggan v. Wood’s Heirs, Ky. Dec. 274. But there is no hard and fast rule on the subject. The object is always to carry into effect what was done and attempted to
This case was tried before a jury. There was submitted to the jury the question of the location of this lost corner and its lines. The court told the jury that the preceding and following known marked corners must be accepted, and that if the line reversed from the red bud and the black oak corner, so as to run S. 75 deg. W., 230 poles, was a marked line, with ancient marks apparently made contemporaneously with the making of the original survey, the jury should find that to be the line, if then by extending the next line back 108 poles it would exactly reach the chestnut oak established as the seventeenth corner. This instruction was really more favorable to the appellant than it was entitled to, for if the line was marked as a line at the time the survey was executed, and presumably it was, as it was the duty of the surveyor to have marked it (Bryan v. Beckley, supra; Johnson v. Marshall, 4 Bibb, 133), that marked line controlled and established itself, even though the corner was not marked (Thornberry v. Churchill, 4 T. B. Mon., 32, 16 Am. Dec. 125). However, there was evidence that the line N. 75 deg. E. was marked for 100 poles, with ancient line marks made in the execution of that survey. There was also some evidence that these marks had been made many years later by another person and for a different purpose; but that was a question for the jury, and the evidence on the whole seems to sustain their verdict. Thus the line N. 75 deg. E., 230 poles, was established, which established the stake corner which is the lost corner, at its extremity. As, then, the
It is contended that the remote vendor of appellant and the former owner . of the Morrow-Dodson patent established an agreed dividing line north of the line herein established between the lands which Avas marked and recognized by them and their vendees for many years as the true dividing line between their lands; but we do not find any evidence in the record that any of the owners of these two tracts at any time marked the line claimed by -appellant. There was some eAddence that a marked line existed at the point claimed; but part of it was the extreme northern line of the Morrow-Dodson patent, and part of it made for other purposes. None of it was shown to have been made under any sort of an
The question of adverse possession the trial court undertook to submit to the jury, but in instructions that were erroneous. However, they were not prejudicial to appellant for the reason that there was a failure of proof on his part to sustain him in that issue. He did not show adverse possession of any of the disputed land for a longer period than six or seven years consecutively. Then for much of the time the tenant in possession rented from and paid rent to the owners of each of the patents, so each owner had equal benefit from that fact. There should have been no instruction submitted on that. issue.
Upon the whole case we are satisfied no error prejudicial to appellant’s substantial rights has been committed.
Judgment affirmed.