157 Ky. 178 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
This action was brought by plaintiff, Gr. W. Rader, against defendants, Isam Smith and Jerry Allen Sparks, to recover judgment against them for timber which they had cut and removed from a small tract of land in Jackson County, Kentucky, to which plaintiff asserted title, and to enjoin them from further cutting or removing any timber from the land. Defendant, Isam Smith, denied plaintiff’s title and pleaded title in himself. On final hearing the chancellor gave judgment in favor of plaintiff, and perpetually enjoined defendants from further cutting or removing the timber. Defendant Smith appeals.
Plaintiff asserts ownership to the land in controversy under and by virtue of an 86-acre patent issued to one David Groosey on August 5,1858, on a survey made April 6,1858.
Defendant Smith claims title under and by virtue of a patent issued to him on August 30, 1910, on a survey made February 23, 1910.
In the David Groosey patent there is a call beginning at three spotted oaks and gum in the county line, and running “thence N. 45 W. 225 poles with the county line to a stake.” In the patent under which defendant claims there is a call reading “thence with the same (county line) N. 45 W. 125 poles to a stake in the Seaborne and Brawner lines.” The two patented boundaries adjoin, and the course N. 45 W. 225 poles is common to both, it being conceded by both parties that the
According to the evidence for the defendant, a man by the name of James ran the line in controversy about 25 or 30 years ago, and ran it with a variation of two degrees. If run with a variation of four degrees, the line would not follow the marked timber. If rim with a variation of two degrees it would coincide with the marked line.
This isi one of those cases where the evidence is. conflicting, and upon a consideration of the whole case the mind is left in doubt, and we cannot say with any reasonable degree of certainty that the chancellor has erred. In such cases it is our rule not to disturb the finding of the chancellor. Byassee v. Evans, 143 Ky., 415; Wathen v. Wathen, 149 Ky., 504; Potter v. Damron, 150 Ky., 587.
Judgment affirmed.