143 Ky. 152 | Ky. Ct. App. | 1911
Opinion op the Couet by
Affirming.
The appellee, James D. Alexander, brought this action against the appellant, Elizabeth. Stacy, for the purpose of trying the title to thirteen acres of timbered land on the waters of Cow Creek in Estill county. The appellee alleged that he was the owner and in possession of said tract of land, and that the appellant had cut and would continue to cut trees on said land, unless she should be enjoined therefrom; and he prayed that she be enjoined and restrained from entering upon said land and from cutting or removing any of the timber thereon or therefrom, and that he have a judgment against her for fifteen dollars’ damages. The appellant answered, denying ap-pellee’s title and asserting her own title to the disputed thirteen acres.
The parties owned adjoining tracts of land; Alexander’s tract lying on the east side of Mrs. Stacy’s tract. Both tracts áre within the Morgan, Spillman and Searcy grant of 4,014 acres of February 26, 1800. Both parties derive title from a common grantor, John Tipton, who purchased from Sudduth in 1818. The Alexander farm was conveyed by proper deeds of the several grantors, until it was vested in J ames Alexander in 1857; and in 1886 James Alexander conveyed it to the appellee, J. Dudley Alexander, who has owned and possessed it ever since. The Stacy farm passed regularly from several owners, and was acquired by Thomas Bowman in 1858, at which time James Alexander was the owner of the adjoining Alexander farm. In 1860 Bowman conveyed his tract to Alden Stacy, and through his will the widow, appellant Elizabeth Stacy, acquired title in 1900.
It is conceded by counsel for appellee that the title papers of appellants do, in fact, cover the land in dispute, and that the title papers of appellee do not cover it. Ap-pellee claim's, however, by adverse possession up to a certain well-marked boundary for more than fifty years; and also that, if his boundary was correctly run and extended, it would include the land in question, although it does not, in fact, do so in terms. In establishing this marked boundary to which he claims, appellee introduced oral proof tending to show that his father, James Alexan
The thirteen acres, as well as the adjoining land of Alexander, is covered by virgin forest which has hardly been touched by the woodman. A few trees have been cut in past years upon the thirteen-acre-tract; but they were so few and were cut-so long ago as to make and leave no substantial impression.
Abundant testimony from some eight or ten witnesses was given, tending to show that the “white oak” corner on the ridge was blown down by a storm some years before the war between the States, and that Processioners set a stone by the side of the “white oak” stump for the purpose of serving as a corner stone, as early as the year 1854; and it remains there to this day. The stone has become well known in the neighborhood as the “Planted Stone”, and is on a path that leads from the “Climbing Cedar”, another well-known monument, to the town of Irvine.
1. In admitting incompetent testimony;
2. In refusing to admit competent testimony; and
3. In giving instructions 3, 4, 5, 6, 7, 8 and 9.
“In regard to the declaration of persons in possession of land, explanatory of the character of their possession, there has been some difference of opinion; but it is now well settled, that declarations in disparagement of the title of the declarant are admissible, as original evidence. Possession is prima facie evidence of seizin in fee simple; and the declaration of the possession, that he is-, tenant lo another, it is said makes, most strongly against his own interest, and therefore is admissible. But no reason is perceived, why every declaration accompanying the act of possession, whether in disparagement of the declarant’s title, or otherwise qualifying his possession, if made in good faith, should not be received as part of the res gestae; leaving its effect to be governed by the rules of evidence.”
This doctrine was recognized by this court in Mann v. Cavanaugh, 110 Ky. 785.
Evidently, there had been many years ago a contention between the then owners of these two tracts of land, as to where this division line actually lay — Alexander’s grantor claiming that it extended around to the white oak tree corner which was afterwards supplanted by the stone in 1854; and from that time, according to the great weight of the evidence, the “Planted Stone” and the line running therefrom to the branch have been treated as the corner stone and boundary line. The question of the existence of that agreement and its recognition for the last fifteen years having been submitted to the jury and determined by them, we think the case was properly and fairly tried. The ninth instruction tells the jury that an agreement fixing the*division line between adjacent land owners need not be in writing to be valid or enforcible, if the same has been acquiesced in by such adjacent owners for fifteen years or more. This instruction was more favorable to appellant than the law warranted. Warden v. Addington, 131 Ky. 296.
In view of the conclusion we have reached, that the controlling question of the case rests upon appellee’s claim of the agreement as to the corner and the dividing-line, and the continued recognition of said claim, we can not see how the minor errors committed by the trial court, as above pointed out, could have affected the result. Eliminating the incompetent testimony of the ap-
. Upon the whole case, we are of opinion that the parties had a fair trial, and that no error has been committed prejudicial to the substantial rights of appellant.
Judgment affirmed.