| Ky. Ct. App. | Mar 15, 1916
Opinion of the Court by
Affirming on the original; reversing on the cross-appeal.
This appeal presents a controversy over the title to less than a quarter of an acre of land, the value of which admittedly does not exceed five dollars. Appellants and appellee own adjoining tracts of land through both of which runs, from east to west, the Springfield and Loretto turnpike, leaving a part of the land of both on each side thereof. The single matter to be decided is as to the true location of the line separating their lands; it being the contention of appellants that if correctly located it will give them the ground in controversy, and that of appellee that it will give it to him.
The action was one in ejectment, brought by appellee against appellants in the court below, the petition alleging the former’s ownership of the land and appellants’ wrongful inclosure and possession of the parcel in controversy. The answer and counter-claim of appellants denied appellee’s title, and, among other matters
“That the present true-, line between the lands of plaintiff and defendants on the south- side of the Springfield and Lebanon turnpike is a straight line from the corner stone at the schoolhouse to the center of three stones on the north side .of said turnpike. (2) That the present true line between the láñds of plaintiff and defendants on the north side of said turnpike is a straight line from the center of said three stones on the north side of said turnpike to a stone at what is called .the hickory corner, thence a straight line to the center of a large white oak. (3) -That' defendants recover of plaintiff any and all lands inclosed by plaintiff’s fence on the east side of said first named line, that is, on the east side of said line from the schoolhouse corner to the center of said stone on the north side of pike, and that said plaintiff recover of defendants any and all the lands on the west side of the line running from the center of skid stone to the stone at said hickory and thence to? the center of said oak tree. (4) It is ordered and adjudged by the court that George Newbolt, of Marion county, Kentucky, be and he is hereby appointed to go upon said lands as soon as may be and plant ,‘stobs’ thereon at intervals at not more than-one hundred yards along same; and plaintiff and defendants are given 18 months thereafter in which to place their respective fences on the line as located. (5) It is adjudged that plaintiff pay his own cost herein expended and that defendants pay their own costs herein expended.”
It appears from the record that the land now owned by appellee on both sides of the turnpike was conveyed him by C. M. Wright; that on both sides of the turnpike now owned by appellants was inherited by them from Mike Murphy, deceased, a brother of one of them and an uncle of the other; that such part of their land as lies north of the turnpike was conveyed Mike Murphy by B. B. Montgomery and that on the south side of the pike was conveyed him by J. T. Wright. The location of the lands referred to may, in some sort, be understood from the rough plat here given:
The stone corner at the schoolhouse, the stone at the hickory north of the pike and the white oak north of the latter point, are undisputed corners or objects. The only controversy is as to the location of the planted stone at the turnpike, and that this stone was correctly located by the judgment of the circuit court is, in our opinion, free of doubt. If this be true, it follows that the location of the entire line was correctly determined by the judgment of that court.
The importance of establishing this corner is apparent because it was the corner to the land of appellee’s vendor, C. M. Wright, the former owner of the land on both sides of the turnpike west of the line in dispute, and that of R. B. Montgomery, Mike Murphy’s vendor, and the former owner of that part of appellants’ land lying north of the turnpike and east of the line in dispute, and is so referred to and identified in the deed from C. M. Wright to appellee and in that from R. B. Montgomery to Mike Murphy; and likewise in the deed from T. J. Wright conveying to Mike Murphy the land now owned by appellants which lies south of the turnpike and east of the line in dispute. The controlling character of this corner is not denied by appellants, but it is their contention that instead of this stone corner’s being ten links from the center of the pike, as fixed by the judgment appealed from, its true location is ten or twelve feet west thereof, which, if true, would so locate the line of division as to leave on their side thereof the land in controversy.
The stone corner at the pike, as located by the judgment, accords with the calls for that corner, both as to
In view of the satisfactory character of the evidence referred to, conducing to establish the stone comer in the turnpike as fixed by the judgment of the circrnt court, it is unnecessary to discuss the oral testimony heard on the trial, except to say that such of it as tended to show the comer in question to be located as claimed by appellants, though contradictory of that furnished by appellee’s witnesses, is wholly insufficient to overthrow the record evidence sustaining appellee’s contention. Moreover, it appears that the judge of the circuit court, after the introduction of all the evidence, went upon the ground, in company with the parties to the action and their attorneys, and made a personal inspection of the land in controversy, the line in question and the several ■ corners and’objects therein called for, which gives added weight to the conclusions expressed in the judgment.
The only thing that gave cause for the controversy -with respect to the stone corner at the turnpike, arose out of the fact that the stone originally planted there, ten links from the center of the turnpike, as a corner of ..the line between C. M. Wright and R. B. Montgomery,
But if the reasons already advanced for sustaining • the line of division. between the lands of appellee and
Although by the judgment of the circuit court appellee recovered practically all of the land in controversy, because of its permitting appellants to retain, as recited therein, “a small bit” of land near the schoolhouse stone corner south of the pike, which, though inclosed by appellee’s fence, was held to be east of the division line, it was adjudged by the court that each of the parties pay his and their own cost expended in the action.. Prom so much of the judgment as required appellee to pay his own cost he has prosecuted a cross-appeal.
The circuit court erred in adjudging that appellee pay ' his own cost. In ejectment the plaintiff’s recovery of any part of the land entitles him to a judgment against the defendant for his costs. Civil Code, section 125, sub-section 2; Childers v. Belcher, 142 Ky., 605" court="Ky. Ct. App." date_filed="1911-03-07" href="https://app.midpage.ai/document/childers-v-belcher-7138528?utm_source=webapp" opinion_id="7138528">142 Ky., 605. This also seems to be the rule in all actions ordinary, where the defendant is a necessary party and resists the plaintiff’s demand, and the latter recovers any part of such demand. Section 889, Kentucky Statutes. Brandies v. Stewart, 1 Met., 395" court="Ky. Ct. App." date_filed="1858-12-10" href="https://app.midpage.ai/document/brandies-v-stewart-7383324?utm_source=webapp" opinion_id="7383324">1 Met., 395. Had this been an action in equity the judgment as to the costs would also have been unauthorized, for the infinitesimal quantity of land adjudged the appellants would, not have presented any equitable ground for relieving them of the payment of appellee’s cost.
The error in the judgment referred to will necessitate a reversal of it on appellee’s cross-appeal, but, as on the return of the case to the circuit court the error can readily be corrected by that court without the granting of a new trial, by setting aside so much of the judgment as required appellee to pay his own cost and amending it by giving him judgment against appellant for same, no necessity will arise for disturbing the judgment in other