| E.D. Ky. | Sep 14, 1916
This cause is before me for final decree. It was before me once before therefor, and I dismissed the bill. My opinion then delivered is reported in Rowe v. Hill (D. C.) 196 F. 910" court="E.D. Ky." date_filed="1912-05-13" href="https://app.midpage.ai/document/rowe-v-hill-8783450?utm_source=webapp" opinion_id="8783450">196 Fed. 910. On appeal this judgment was reversed. The opinion of the Appellate Court is reported in 215 F. 518" court="6th Cir." date_filed="1914-05-15" href="https://app.midpage.ai/document/rowe-v-hill-8792735?utm_source=webapp" opinion_id="8792735">215 Fed. 518, 132 C. C. A. 30. That court, however, did not direct what judgment should be entered. It merely directed that the case should be reopened and beard again. This has been done, and it is upon such rehearing that it is now before me.
On the former hearing I held that the questions as to the validity and location of the patent to J. W. Mills, of date July 13, 1858, upon a. survey made January 4, 1858, for 100 acres of land in Wayne county, Ky., in this district, involved herein, were res adjudicata, because of the judgment of the Wayne circuit court, affirmed by the Court of Appeals of Kentucky in the case of Alexander v. Hill (Ky.) 108 S. W. 225, and that if they were not, that I would not be justified in deciding the matter differently from the state courts. On the question of res adjudicata I thus expressed myself:
“I do not think there can be any question that the understanding between plaintiffs and their grantor, Alexander, was that he was to defend the land covered by their purchase against that claim as under his covenant o£ warranty he was hound to do so. It was in pursuance to this understanding that their grantor, Alexander, when the defendant brought her suit in the Wayne circuit court on January 11, 1901, the day before the deed was put to record, asserting her claims against him and J. W. Rowe, took charge of the defense of the suit and controlled and managed it and -bore its expense until its determination. Nor have 1 any doubt of the fact that plaintiffs knew of the pendency of this suit, and that their grantor was defending it, and that they*884 were relying on Ms defending it pursuant to Ms understanding with them and in accordance with his covenant of warranty. They so knew and relied, through their attorney, who was on the ground and had full authority to look after the land, if not otherwise. In so doing, therefore, their grantor, Alexander, was acting on their behalf as well as of himself, and they are bound and concluded by the judgment therein. It is not open to them-, now that that litigation has resulted in favor of defendant, to come into court and seek to reopen it.”
This position was held to be erroneous by the Appellate Court. Judge Sanford, who delivered its opinion, said:
“Nor are they bound by said judgment, even if, as found by the court below, the defense made by Alexander to the suit was made both for himself and them, in pursuance of an understanding and agreement with them, since, whatever may have been Alexander’s action in that regard, it was not open and known to the other party;- and the estoppel arising by reason of assuming the defense of a suit must, as in other cases, be mutual.”
The cases cited in support of this statement were cases where persons not parties to the suits defended them for the parties defendant, but unknown to the plaintiffs. He further said:
“It is true that if the plaintiffs knew of the pendency of said suit, and either through the agency of Alexander or -by attorney actually participated in its defense in the name and under the guise of ‘ J. W. Rowe,’ and through such representative filed the answer in such name, in which it was admitted that Alexander had made a conveyance to such ‘J. W. Rowe,’ thereby misleading the defendant as to the name and identity of the purchaser, and causing her to fruitlessly pursue her litigation against such fictitious vendee, they would now, in our opinion, be estopped from denying their identity with ‘J. W. Rowe’ as Alexander’s vendee, and would, by reason of such estoppel be bound by the judgment rendered aganst ‘J. W. Rowe’ in the former suit, as if they had actually been parties. However, while the circumstances are such as to create a suspicion that the facts were as above suggested, yet, after careful consideration of the meager evidence in the record, especially in default of the testimony of either of the attorneys who represented ‘Alexander and Rowe’ in the former, suit, one of whom apparently died before proof was taken, we are constrained to conclude that the evidence is sufficient to create such suspicion and not substantial enough to establish the fact.”
It is to be noted, in this connection, that i‘t is not said that if plaintiffs knew of the pendency of the suit, and that the defendant Pinkie Kidd, plaintiff therein, had brought before the court “J. W. Rowe” as Alexander’s vendee, and that the answer filed in the name of Alexander and Rowe expressly admitted that he was such and with such knowledge kept silent, plaintiffs are estopped, to deny their identity with “J. W. Rowe,” and hence bound by the judgment rendered against “J. W. Rowe.” As the matter is put, in order to this it is essential also that plaintiffs actually participated in the defense of the suit in the name and under the guise of “J. W. Rowe,” through the agency of Alexander or by attorney, and through such representative filed the answers. It is clear that they did not so participate. But it is equally clear that they had such knowledge, and with it they took no steps to correct the error, but kept silent in regard thereto. Under the evidence, as it now stands, I think I was in error on my former hearing in holding that Alexander defended the suit pursuant to any understanding with plaintiffs. It is quite likely that there never was
At the time of plaintiffs’ purchase the trespass suit-of Alexander against Hill was pending, and the deferring of the payment of part of the purchase money may have been to await the outcome of that suit, and, upon its being determined in Alexander’s favor in the 'December preceding the bringing of the suit by the defendants, the rest of the purchase price was paid, except perhaps for 83 acres, covered by the Mills patent, located according to courses and distances. The defense of the suit by Alexander was because he had warranted the title to the plaintiffs and was bound to defend it. That plaintiffs had such knowledge I think was the reasonable inference from the evidence as it stood on the former hearing and not a mere matter of suspicion. The plaintiff I. W. Rowe admitted that he had heard by letter from his attorney, Mr. Johnson, of the pendency of the suit. Mr. Johnson, therefore, must have known of its pendency. He could not otherwise have written plaintiff I. W. Rowe about it. As §oon as he heard of it, as plaintiffs had relied on him in making the purchase, naturally lie would at once take steps to ascertain exactly its character. And in determining the truth of things one has the right to take into consideration the way men act. It was convenient for him to find this out, as the suit was pending in an adjoining county, whose courts, no doubt, he attended. The inference that he did so was strengthened by the facts that his letter or letters conveying the information as to the pendency of the suit were not produced, and that Mr. Johnson did not testify as to what he knew concerning the matter. That he was then acting as plaintiffs’ attorney in relation to the land was testified to by the plaintiff I. W. Rowe in his testimony. But, however this may be, such knowledge was proven directly on the present hearing by the testimony of Mr. Bertram and Mr. Sharp, who were Mr. Alexander’s attorneys in the suit, and Mr. Snyder, Mr. Johnson’s partner, he having died since the former hearing. Mr. Bertram testified that shortly after the suit was brought Mr. Johnson was in Monticello, the county seat of Wayne, and had a conversation with him about it, and how it was brought and the parties against whom it was instituted. Upon his (Bertram’s) making some suggestion to Johnson about filing the answer or about the answer which had been filed, he then said that the .suit had not been filed against his client, and that he knew nothing about J. W. Rowe, and that he would have nothing to do with defending the action. Mr. Snyder testified that Mr. Johnson in his letter to plaintiff T. W. Rowe told him that J. W. Rowe was a party defendant. The situation was not relieved by the request made of Mr. Sharp to have the answer withdrawn and his promise to do so. It was never withdrawn and no pains were taken to see wheth - er the request had been complied with.
.Furthermore, I am inclined to think that the Appellate Court, on further reflection, would hold that, in order to constitute the estoppel and bind plaintiffs by the judgment, it was not essential that they should have actually participated in the defense of the suit, hut that such knowledge and silence on their part alone was súfficient to that
But I do not feel justified in acting upon the idea that the Appellate' Court would so hold. It included actual participation in the defense of the suit as a part of the estoppel, and it would rather be in tire face of its decision for me to hold that it is not essential to the estoppel. Hence will I dispose of the case on the basis that the Appellate Court would not so hold.
[ 1 ] The decision, however, is binding as the Appellate Court recognized, in so far as the principles of law upon which it was based have become a rule of property in this state.
What, then, is the proper attitude to take towards the decision of the Court of Appeals in Alexander v. Hill ? Thus far I have reached the conclusion not to treat it as binding save to the extent just stated. Should I go to the other extreme and treat it as if it had never been rendered? Judge Sanford said that, “regardless of its binding effect, we would with great reluctance feel ourselves constrained to differ from the highest tribunal of the state in a decision affecting title to real estate within its borders.” This was said without reference to the fact that plaintiffs had knowledge of the pendency of that suit and of its character, and with such knowledge kept silent, which has now been made to clearly appear. This circumstance certainly should have the effect, if no more, of adding to the reluctance to depart from that decision. And another circumstance has transpired since the decision of the Appellate Court herein which adds thereto. That is that the Court of Appeals in the reported case of Rock Creek Property Co. v. Hill, 162 Ky. 324" court="Ky. Ct. App." date_filed="1915-01-26" href="https://app.midpage.ai/document/rock-creek-property-co-v-hill-7142206?utm_source=webapp" opinion_id="7142206">162 Ky. 324, 172 S. W. 671, which involved the location of a patent covering lands in Wayne county, and probably in the same general neighborhood as those covered by the patent involved here, and'presented questions somewhat similar to those presented in Alexander v. Hill, cited with approval its decision in that case.
■ In this connection it may not be amiss for me to refer to a circumstance which affected me in handling it on the former hearing. I had theretofore refused to follow a decision of the Court of Appeals of Kentucky locating a patent. It was the case of Davis v. Commonwealth L. & L. Co. (C. C.) 141 F. 711" court="None" date_filed="1904-08-31" href="https://app.midpage.ai/document/davis-v-commonwealth-land--lumber-co-9303384?utm_source=webapp" opinion_id="9303384">141 Fed. 711, cited and relied on by plaintiffs. There, however, the Court of Appeals had been imposed on, by a trick as it were. There was ho real controversy before it. The-controversy before it was a sham one. And the party, for the pur
“Under the circumstances, we must hold that whether the location of the Ledford patent involved in Creech v. Johnson ought to have been heard and adjudicated was one for the Court of Appeals to pass upon, and, since it entertained .jurisdiction and delivered a considered opinion, which appears in*888 tiie reports of the court prepared for publication, we must accept its conclusions as its deliberate judgment upon the location of the patent, entitled to the weight such judgments usually are.”
When then this case came before me on the former hearing, and I was confronted with a decision of the Court of Appeals determining the validity of the patgnt involved here and locating its boundary as contended for by defendant, I could not help but feel that, if I could not safely refuse to follow a decision of the Court of Appeals obtained as that had been, I could not safely refuse to follow the one involved here obtained as it had been. Here the trick, if any there was, was on the other side, consisting in keeping silent with the view of claiming the benefit of the decisión if favorable and disowning it if unfavorable. The fact that this decision had not been officially reported and that one had would make no difference. The not officially reporting a decision of the Court of Appeals affected its importance rather than its value. Hence it was that I did not have sufficient patience with the case on the former hearing, and did not give it the consideration which I would otherwise have done. I refrained from going deeply into the validity of the patent and placed the estoppel on a wrong basis.
Returning then from this digression, I may say that I do not think that I should treat that decision as if it had never been rendered, but accept it as at least prima facie correct, not only as to the principles of law therein applied, but also as to the application of them, and' refuse to depart therefrom unless it is made clearly — I might say, but will not, beyond a reasonable doubt — to appear that the Court of Appeals was in error in one or the other of these particulars.
The Court of Appeals upheld Stanfill’s location of the patent. The question then comes to this: Accepting that location as prima facie correct, is it made clearly to appear that it was incorrect?
Another such consideration is that the Stanfill location necdssitates so many mistakes in the original survey in the courses and distances called for. On the basis of its correctness in four'of the lines — the first, eighth, tenth, and twelfth — mistake was made in both the course
I now proceed to take up the errors which it is claimed Stanfill made in making his location and to determine the effect thereof. There are two important particulars in which it is conceded by plaintiffs that he did not make any error which should be noted first. One is as to the location of the Thomas Ryan survey, to the fifth or closing line of which he ran the ninth line, and with which he ran the tenth line, and of such closing line. And the other is as to the location of the Isaac Foster survey, to the eleventh line of which he ran the eleventh line, and of such line of 'that survey. Those two surveys and those lines are well known and established. Alexander, under whom plaintiffs claim, ran to and called for them in his surveys. And it is true to say that these matters were well known and established when the Mills survey, here in question, was made. This is a fact that has never been disputed in this case, but always frankly conceded. It was because of this that no’ pains were taken on the former hearing to introduce the certificate of survey and patents in evidence.
1. That in running the second line he ran it a due north course as called for in the patent, and not N., 40 E., as called for in the certificate of survey. And defendant concedes that he did so err. The fact is that counsel and not Stanfill have erred here. When asked on direct examination as to whether he ran with the patent or the certificate of survey in running the second line, Stanfill’s answer was that he did not recollect. This was all he said as to this on the present hearing. Though his testimony on the former hearing was not introduced on this, plaintiff relies entirely on what he said tiren in support of the claim that he so erred. On that hearing, on direct examination, his attention was .called to the fact that the second call of the patent was N. 40 poles to a stake, and he was asked whereabouts he fixed that corner. His answer was at letter “C” on his map. He was then asked as to whether he extended the number of poles, and his answer was, “We simply run it on the degree and the number of poles called for”; neither counsel asking the question, nor did Stanfill have his attention directed to the fact, that the patent here did not conform to the certificate of survey, tire latter of which two documents governs. It was assumed that the patent call conformed|to the survey, and hence was correct, just as in the judgment of Alexander v. Hill the patent, and not the certificate, was followed. That Stanfill followed the latter, and not the former, is shown by his map, as was recognized by Mr. Blakeman in his testimony on the former hearing, which may be referred to if Stanfill’s is to be considered. He testified that a map which he had made of the boundary given in the judgment in Alexander v. Hill did not conform to the Stanfill map in two particulars, oxre of which was in the course of the second line, there being a mistake in that line, in that the judgment followed the patent and not the certificate. And Kinnie testified that there was a stake at the Stanfill rock with pointers N., 40 E.
2. That he. allowed no variation in the magnetic needle from the true meridiaxx between the time of the original survey and that made by him and that he made his survey by surface not by horizontal xneasux-ement. It would seem that his measurement was as claixned. As to making allowance for variation, if we confine ourselves to the evidence on this hearing, as it would seem we are bound to do, it is not made absolutely certain that he did not make allowance. The evidence as to whether he made allowance for variation is confined to the first line. As to whether he failed to make such allowance there, depends on whether he first determined the point to which he ran as the liver cliff to be the point called for, and then ran from the beginning corner to it, or whether he found that point and was led to fix on it as the point called for by running the course called for from the beginning corner. If the latter, then he failed to make such allowance, for it is shown-that the line run making such allowance will run to the right or south of such point some little distance; if the former, then he did not so fail. There was in that case no occasion for making such allowance, as there was nothing to be done but run a line from the be
But conceding that he erred in not allowing for such variation as well as iti the manner of his measurement, what follows? If the defendant were here seeking for the first time a location of its boundary and a judgment against plaintiff as to the land covered thereby, the court should, no doubt, refuse to uphold the location, and might require a location to he made with the proper allowance and measurement, with a view, if such location could be made, of upholding it. Such, however, is not the case. Plaintiffs are here seeking a judgment that the land covered by Staufill’s location belongs to them, and that under the circtimstonc.es under which plaintiffs appear here, as heretofore stated. It would seem that the court shtutld not grant relief on this ground unless it is made to appear that a location cannot be made with proper allowance and measurement, or that, if it can, a location so made will cover less ground than Stanfill’s location, and then only as to the ex - cess. Neither one of these things has been made to appear.
3. That the “coffin poplar” is not the beginning corner. It is not: necessary to consider the evidence hearing on this point. The Court of .Appeals of Kentucky held that it: was. No new evidence has been in - troduced here; and the Appellate Court, speaking through Judge Sanford, said:
‘■The location of the poplar beginning corner is, wo think, established by the preponderance of the evidencie in accordance with the defendant’s contention.”
4. That the points which Stanfill fixed as the points on the river cliff called for as being reached by the first, fifth, and eighth lines were either not points on the'river cliff at all, or, if so, not the points so called for. The Appellate Court seems to have been impressed with the idea that Stanfill had fallen down in his location of the points on the liver cliff called for as being reached on the fifth and eighth lines
So far as the river cliff called for as being reached by the fifth and eighth lines are concerned, Stanfill testified that he ran each of these-lines to the .river cliff. His familiarity with that country was such as to place him in position to form an intelligent judgment as to whether he did in fact run to the river cliff, and he had no motive to run these two lines otherwise than to the river cliff-. There is no evidence to the contrary, except Kinnie expressed doubt as to whether what he took to be the river cliff to which Stanfill ran was the river cliff because of its.
There is, however, room for holding that he did err in running the .first line with reference to the river cliff. Not in that he did not run to the river cliff, but in that he did not run to the point thereon called for, which would be where a line run according to the course called for, making proper allowance for variation, would strike the river cliff, which, according to the testimony of Blakeman, was 585 poles from the beginning corner, taking the coffin poplar to be such corner. Possibly the testimony of Kinnie is to the effect that Hodges in so running that line struck the river at a distance of 403 poles. Otherwise Blakeman’s testimony that it would not strike it short of 585 poles is uncontradicted. I take it that when a call is for a line to run to a point in an extended thing, it is only in case the line, when run according to the course called for, will not strike the extended thing at any point, that the course should be abandoned and a line run to the nearest point in such thing. If the line run according to the course called for will strike a point in the extended thing, then it is to be so run, though it will add greatly to the distance. Assuming, then, the first line to run as Blakeman has it, the error of Stanfill was against the survey and plaintiffs are not hurt thereby. Plaintiffs state that, taking this to be the first line, the boundary is impossible of location; but no attempt has been made to show that such is the case. On the* contrary, it would seem that there would be no difficulty in locating it. In so doing it, the fifth and eighth lines should not be run so as to strike the river cliff from the outside, i. e., on the river side, but from the inside. It is the thought of the certificate of survey that those two lines strike the river cliff from the inside. This would carry the fifth line over to the river cliff on the north side of the big bend in
There is nothing, then, whatever in the error which Stanfill made in running the first, fifth, and eighth lines to the river cliff that is of any benefit to the plaintiffs.
In Mercer v. Bate, Judge Robertson said;
“But there is, in this respect, a palpable and essential difference betwixt actual and an ideal line, or a marked and open line. And as in the one case, Madison might he bounded by the marked line, wheresoever it might be (if he made no mistake), so in the other he must be restricted to the line as it appeared to be, and as he believed it was when he called to adjoin it. In the first case, he would have a right to the marked line, because, being visible, he knew where it was, and therefore intended that, as marked, it should be his boundary. In the last case, for the very same reason, wherever ho supposed the invisible line to run, he must be bounded, because he intended when he made his survey to be, and therefore was bounded by it.”
In Ralston v. McClurg, Judge Marshall said:
“In determining now upon the manner in which it should be closed, the courses and distances should be adhered to and the" call for the line disregarded. There is certainly no necessity here for abandoning course and distance, which are in themselves certain. There is no mistake in the courses and length of the lines actually run, and the remaining courses and distances lead with certainty to the beginning. Why then abandon them, and adhere ■toa vague and repugnant call for a stake in a line of which the surveyor knew nothing, and for running with that lino in a direction widely variant from its course and for a distance greatly exceeding its whole length?”
In Mathews v. Pursifull, Judge Carroll said:
“The rule is well settled that courses and distances yield to natural objects mentioned in a deed as the boundary line thereof; but this well-established rule does not apply to this case, because the calls relied on by appellant are not natural objects or monuments. They are merely artificial lines named in a patent.”
In Jones v. Hamilton, Judge Barker said:
“The rule is that, where natural objects and courses and distances vary, the natural objects prevail; but where lines are not marked and defined so as to be visible to the eye, being merely called or Ideal lines, the rule is different. There the surveyed line will prevail, and the party claiming title will be confined to those lines, although he may have believed and intended them to be identical with the called lines.”
In Mathews v. Pursi full, Judge Carroll cited the decisions in Mercer v. Bate and Ralston v. McClurg in support of the position there taken, and, tu Jones v. Hamilton, Judge Barker cited the decisions in Mercer v. Bate and Mathews v. Pursifull in support of the position there taken. It would seem that both Judges Carroll and Barker thought that where there is a call for a line to run a certain course and distance to an ideal line of another survey, and a line run according to the course and distance called for will not strike such line, the call for such line is to be disregarded, and that as to course and distance followed, as contended for by plaintiffs, and that this had been held in the two cases
“That a course and distance called for in a survey, when not actually run and marked by the surveyor, will be controlled by a call for the line of another tract which was then actually marked and visible on the ground, so> as to be assimilated to a natural object.”
But they hardly yield such a generalization and are not relied on by plaintiffs as so doing. They are relied on as supporting their contention as I have stated it.
In determining the soundness of this contention there should be considered these four decisions cited and relied on by the defendant, to wit: Morgan v. Renfro, 124 Ky. 314" court="Ky. Ct. App." date_filed="1907-01-16" href="https://app.midpage.ai/document/morgan-v-renfro-7136323?utm_source=webapp" opinion_id="7136323">124 Ky. 314, 99 S. W. 311; Alexander v. Hill, supra; Brashears v. Joseph (Ky.) 108 S. W. 307; Rock Creek Property Co. v. Hill, supra. In each of these four cases the call for course and distance was disregarded and that for the line of another survey followed.
In Morgan v. Renfro, Judge O’Rear said:
“In all such cases, where it comes to locate again the survey so. made, the object is to reproduce if possible, or as near as may be, what was originally done in appropriating the land by the survey. * * * There are several means which may be adopted. The rule is to prefer the best evidence. Therefore marked corners, i. e., those clearly identified, and which are notorious objects, are seized upon as the most satisfactory; then natural objects not marked, such as a stream, a ridge, a cliff, or the like, for they, while not so exact, are nevertheless reasonably sure to afford satisfactory evidence of the location of the patent at or near that point; then calls for the lines of other patents which are of record, and which are susceptible of definite and certain location; ■ then courses; and then distances, in the order named.”
In Alexander v. Hill, Judge Passing said:
“This patent calls for a tract of land bounded by certain natural objects and artificial lines and established points, and provides that by following certain fixed courses and distances these natural objects and artificial lines and fixed points will be reached. But when it is shown by actual demonstration that, when the lines are run according to the courses and distances called for, the natural objects and artificial lines and fixed points are not reached, what shall we do? Shall the courses and distances, as called for in the patent, prevail, or' shall these be made to yield, and the courses so changed where required, and the distances extended as may be necessary so as to reach the natural Objects, artificial lines, and fixed points? If this was a new question, we confess that a more difficult problem would be presented; but this court has many times passed upon this question, and the law is now well settled that, where there is a conflict between the course and distance and recognized objects establishing the boundary lines of a survey, course and distance must yield, and the natural objects and established boundaries of other tracts called for, and designated known points therein must be accepted as the true boundary of the land in question.”
“Therefore the course and distance called for in the plat must yield, undei the well-known rule that, whore ¡.he patent calls for fixed, definite, and certain points or objects, the calls by course and distance must give way.”
And in Rock Creek Property Company v. Hill, Judge Nunn said:
"The rule is well settled in this state that courses and distances must yield to calls for the lines of other patents which are of record and susceptible of definite and certain location.”
It is thus seen that, if the four cases cited and relied on by plaintiffs support their contention, then these four cases cited and relied on by defendant are in conflict therewith; for an ideal line, i. e., an open and invisible line, whether actually run or only protracted, is susceptible of definite and certain location. It is to be noted that, though the decisions of Morgan v. Renfro, Alexander v. Hill, and Brashears v. Joseph were rendered and published before that of Jones v. Hamilton, no notice of them is taken by Judge Barker in his opinion therein. And in none of the four cases relied on by defendant i? any reference made to ■¡lie cases of Mercer v. Bate, Ralston v. McClurg, and Mathews v. Pursifull, though all were rendered and published before them, except that in Alexander v. Hill reference was made to Mercer v. Bate on another point. Brashears v. Joseph, Alexander v. Hill, and Rock Creek Property Co. v. Hill were built upon Morgan v. Renfro. This situation calls for an attempt at harmonizing these decisions, and, if it is found that they are incapable of harmonization, for a determination of which of them are right and to he followed. Particularly should pains be taken with the decisions in the early cases of Mercer v. Bate and Ralston v. McClurg. The opinions in them were delivered by great judges— Robertson and Marshall — and at a time when things were noi so complex, i. e., more simple, and when judges, as well as other people, were less hurried and had more time for reflection. These decisions are very apt to have been sound. And it is to be seen whether there is any warrant in either one of them for the position which Judges Carroll and Barker took them to support. But before taking them up it will not be amiss to do a little thinking on our own account.
in determining the location of an actual survey, the fundamental principle is that it is to be located where the surveyor ran it. As it has been put, the thing to be done is to track the surveyor. This being so, it is where he ran and not where his certificate says he ran that governs. If there is a conflict between where he ran and where he thus says he ran, the latter must yield. In Dimmitt v. Lashbrook, 2 Dana, 1" court="Ky. Ct. App." date_filed="1834-04-08" href="https://app.midpage.ai/document/dimmitt-v-lashbrook-7379856?utm_source=webapp" opinion_id="7379856">2 Dana, 1, Judge Robertson said:
“When a line is actually run, it must be, as so run, the true boundary.”
In reflecting upon this I have been puzzled to reconcile it- with the rule that parol evidence is inadmissible to vary a writing. I have reached the conclusion that there is no conflict here, because such a case does not come within the rule. The making of the certificate is not contemporaneous with the making of the survey, though made from notes taken at the time thereof. When it is made the making of
There is reason, however, for an exception to this rule. This exception comes in only where the line was not actually run, and it makes no difference whether the thing called for was visible or invisible. Lhe position thus taken that, if the line was not actually run, the call for the thing, whether visible or invisible, takes precedence over the call for the course and distance, is based on the assumption that the surveyor does not think that the thing called for is in a particular place. The exception comes in where he does think that it is in a particular place and hence mentally runs the line to that place. If iturns out that the thing called for at that place was not in fact there, i. e., the surveyor was mistaken in thinking that it was there, the call for the thing should give way to the call for course and distance; for the surveyor mentally ran the line to where he thought the thing was and not to where it in fact was. And the cases of Mercer v. Bate and Ralston v. McClurg were simply applications of this exception. In each case the line was not actually run, and the surveyor thought the thing called for was in a particular place, as to which he was mistaken. It was held in each case that the thing called for should give way to course and distance, because he had mentally run the line to where he thought the thing was and not where it actually was. It made no difference in the position there taken as to whether the thing called for was visible or invisible. A detailed consideration of these two cases will make this good.
In Mercer v. Bate the facts were these: Two surveys had been made in the then county of Kentucky of lands on the Ohio river some little distance below the falls at Louisville, one in the name of Mercer and the other in the name of Griffin. They were about 527 poles apart at the river bank. Mercer’s survey was four-sided. Its upper corner on the river bank was three beeches and a sugar tree. The river line ran 350 poles to two beeches and some sugar tree saplings. The lower line ran from this corner S., 56 E., 1448 poles, to a sugar tree, buckeye, and linn. The back line ran from this corner N., 52 or 62 E., 350 or 340 poles, to a white oak on the edge of a hill near Harrod’s creek, and the upper line ran from this corner N., 49 W., 750 poles N., 48 W., 540 poles, in all 1,270 poles, to the beginning. The lower corner of Griffin’s survey on the river bank was an ash and elm. Its lower line ran therefrom 1,130 poles S., 38 E., to five ash trees, and from that corner the line ran N., 30 E. At 246 poles from the five ash trees in that line were a beech and elm. It is not necessary to refer to any more of the Griffin’s boundary. Mercer’s survey was made in 1774. That of Griffin some later. In 1785, tire territory being then in Jefferson county, a survey was made in the name of Madison, including as it was thought all the land between the two surveys from the river back. It begán at Griffin’s lower corner — the ash and elm — and ran with the river bank to Mercer’s upper corner — the three trees referred to as two beeches and sugar tree — 427 poles. It called for this corner as Mercer’s corner. The call for the next line was with Mercer’s
There were over 2,000 acres within those lines. Possibly the surveyor never ran the river line of Madison’s survey, i. e., from Griffin’s lower corner to Mercer’s upper and beginning corner. Certainly he never ran Mercer’s upper and closing line, between its beginning and
“Is there anything, then, in the record which will show satisfactorily where Madison supposed Mercer’s line was when he called for it? We think there is enough, and that it shows that he considered the courses and distances described in Mercer’s patent as defining his true line.”
He then referred to seven separate and distinct things in the record as so showing. The decision provoked a vigorous petition for rehearing. Because of the distinction drawn between actual and ideal lines or marked and closed lines, it was thought that the court had taken the position “that if the objects called for are ideal or the lines called for are not marked, .then the adjoining survey shall stop short thereof, and has no right to extend to them, disregarding of other calls.” This position, it was claimed, was “entirely new.” It was said:
“It is a doctrine never heretofore applied in adjudicating on boundary in this country, so far as we know. It was not advanced by the learned counsel of the appellants, so that it might have met a reply. Its consequences are not easily foreseen, and as there are many lines left open, owing to the witchery in which surveyors acted and the dangers that surrounded them, it may be fatal; for it is a doctrine that will rend bounds and limits, hereafter to be fixed by a series of adjudications.”
The reasoning against this position which was advanced was unanswerable. Attention was called to the facts that Mercer’s upper back
The result was that Judge Robertson had nothing further to say, in response io the petition for rehearing, about any difference between the actual and ideal or marked and open lines. But he did bring out clearly and distinctly the true basis of the decision, which was that the surveyor took Mercer’s upper or closing line to run according to the courses and distances called for, and that his upper or hack corner was at the end of such line so run. Hence that is where he ran the Madison survey, and, as where the surveyor ran is controlling in locating a survey, there is where it would have to be located, though the surveyor was mistaken in so thinking. This being the caso, it would have made no difference had such upper or closing line been marked its entire distance. Fie said:
“Madison cannot be allowed to extend Ms survey beyond where he believed Mercer to be.”
And again he said:
‘•The reason why Madison would not be allowed to expand his survey, so as to enter all the interjacent land between the line which he supposed to be Mercer’s and the remote boundary which is ascertained by the Judgment of court io be Mercer’s true Hue, is only because there was an evident mistake in the opinion as to the location of Mercer’s line.”
And again he said:
“K Madison went to T A (i. e., the upper back corner of Mercer), or if, knowing where it was, he intended to go there, or if, without knowing wliere it was, he intended to go to it, wherever it was, he might be allowed to hold it. The opinion states some of the reasons why we believe that he intended that his line and corner should be where he supposed Mercer’s were.”
That it would not have necessitated a different decision, if Mercer’s upper or closing line had been marked its entire extent, is apparent from the following statement in the response:
“If Mercer’s hue from his beginning to T A had been marked and actually run, then still Madison might not have a right to make it his boundary, if it clearly appeared that he was mistaken in calling for it. But then we should require much stronger evidence of mistake than we should do, when the line was defined by course and not by marks.”
So it transpired that, as nothing had ever been said about any distinction between actual and ideal or marked and closed lines in the
I come then to the case of Ralston v. McClurg. Ham’s survey, there involved, was a five-line survey. It called to begin at William Richard’s northeast corner of his 50-acre survey, a large poplar and beech. The first line ran from there, a certain course and distance, to a beech; the second from thence, a certain course and distance, to a beech and buckeye; the third from thence, a certain course and distance, to three white oaks on a high ridge; the fourth from thence, a certain course and distance, to a stake in Richard’s line; and fifth and'last a certain course and distance with his line to the beginning. The surveyor in making tire survey began at Richard’s northwest, and not at his northeast, comer, as stated in his certificate, which threw the whole survey off the land described therein. He ran and marked the first three lines. When he came to the fourth comer, the three white oaks on a high ridge at the end of tire third line, Ham informed him that a line the course called for, to wit, S., 45 E., from that place would strike Richardls line at the distance called for, to wit, 83 poles. He thereupon adopted that as the fourth line of the survey without any part of it being run. He tiren calculated the course and distance from the termination of this assumed line to the beginning corner, and adopted it as the fifth line, without running it. On running the Ham survey it was found that a line S., 45 E., from the fourth comer, the termination of the third line, which was actually run, would not strike Richard’s line at the distance of 83 poles, but that, if continued, it would never touch any part of it. It was held that the fourth and fifth lines should be located according to the courses and distances called for and the calls for Richard’s lines should be disregarded. The ground of the decision was that there was where the surveyor mentally ran those two lines. He ran them there because he thought the fourth line would strike -Richard’s line and the fifth would run with it. In this he was mistaken. But, notwithstanding such mistake, that is where he mentally ran the lines, and, as we have seen, the consideration which always controls in locating a survey is where tire surveyor actually or mentally ran the lines. That the fact whether Richard’s line was an actual or an ideal — marked or open — line had nothing to do with the conclusion reached appears from the following quotation from Judge Marshall’s opinion, to wit:
“It does not even appear that the line of Kichard’s was itself a marked line. And that circumstance, though not essential to the conclusion to which we have come, certainly weakens the opposite construction of the survey, so far as it depends upon the position that an adtual marked boundary, or a call for physical objects, must control the call for course and distance.”
It must be admitted, however, that both Judges Robertson and Marshall seem to think that the fact that the line called' for was not a marked line, whilst not essential to the positions there taken, strengthened them. I would submit that it did not do so. The advantage which a visible thing called for has over an invisible thing when the
It is thus seen that there is nothing whatever in these two cases justifying the positions taken in the quotations from the opinions in Mathews v. Pursifull and Jones v. Hamilton. Whether Mathews v. Pursifull was correctly decided on its facts it is not necessary to consider. It would seem that it was not. But Jones v. Hamilton was. There the survey began at Wiley Jones’ corner, and the first call was “thence with said Jones line S 80 W., 163 poles, to a beech and cucumber, Levi Goins’ corner.” This call was widely variant from “Jones’ line.” But the surveyor had actually run it. It was decided that the line should be located as thus run, though the surveyor intended and the patentees intended him to make a survey of all the land which would be included with “Jones’ line” as a boundary, and they thought Jones’ line coincided with the call S., 80 W., 163 poles. There were some marks on trees which led the surveyor to suppose that it was Jones’ line. And the cases of Mercer v. Bate and Ralston v. McClurg were authorities for the decision reached. The only difference between that case and those was that in that the line was actually run, whereas in those it was not. There was no occasion in the case for pointing out any distinction between a call for marked and visible lines and ideal lines. It is true that the Jones line was not a marked line, but an ideal one. But it could have made no difference if it had been a marked one. The surveyor had actually run the line called for according to the course and distance called for, and as we have seen that it is where the surveyor ran, actually or mentally, that determines where the survey should be located. The fact that he thought that such line was the line called for, but was mistaken in so thinking, cannot change the fact as to where he ran, and hence does not allow the line to be located in accordance with the line called for, and that whether such line is a marked or an ideal line.
These four cases cited and relied on by plaintiffs do not, therefore, support their contention. The fact is that the cases of Mercer v. Bate, Ralston v. McClurg, and Jones v. Hamilton do not have to do with the kind of case that we have here. They are cases where the line called for was thought or supposed to be in a particular place, and was run to or with as being in such a place — -in Mercer v. Bate and Ralston v. McClurg it was mentally run, whereas in Jones v. Hamilton it was actually run — when in fact it was not in such place. The fact that it was not in such place did not alter the fact as to where the line was so run, and it was the fact as to where it was run, and not where it might or would have been run had the truth been known, which determined its location.
On the other hand, the four cases cited and relied on by defendant are directly in point, and they decide squarely that if the line called for is susceptible of definite and certain location, at least if the instrument by which the line is created is of record, the call for course and distance must yield to it. Whether it is essential that such instrument be of record it is not important to inquire, as here the Ryan and
I conclude, therefore, that Stanfill did not err in going to and with the fifth or closing line of the Ryan survey and to the eleventh line of the Isaac Foster survey, and disregarding the calls for courses and distances.
7. That Stanfill erred in the point to which he ran as the pine corner at the thirteenth corner of the survey. This is attempted to be made out in two ways. One is that, if it is taken to be the three pine trees called for in the Parmley survey, it was not capable of being definitely located, and that because it was not sufficiently identified. But the mere fact that it was not then standing, and no one could tell where it stood, did not prevent its being definitely located. At least two other corners of the Parmley survey were capable of identification. According to Shearer’s testimony, the sixth corner, the beech, poplar, and spruce, and according to Kinnie the third corner, the two white oaks and two Spanish oaks, were then standing. And to a certain extent the beginning corner was capable of identification, though the three Spanish oaks were not then standing, by reason of the call for them at the head of one of the Devil creek hollows. All the surveyors seem to have been able to locate this Parmley survey and its second or, pine corner.
In conclusion it is to he noted that plaintiffs have done nothing but criticize. They have put forth no constructive effort. They have made no sincere effort to locate Mills’ survey by actually running all its calls on the ground, disregarding calls for courses and distances for the thing called for, when running according to course and distance did not go thereto. The only line which they actually ran was the first line. This disclosing that Stanfill had erred in locating the first line, there they stopped. Whether they were fearful that running from the correct termination of the first line a location would be made more favorable to defendant does not appear. It is certain that they ran no further.
In view of all 1 have said, I have no other recourse than to hold that the bill should be dismissed at plaintiffs’ costs.