188 Ky. 694 | Ky. Ct. App. | 1920
Opinion of the Court by
Reversing.
Tbe only question in this case' is the proper location on tbe ground of a patent for 12,000 acres of land issued in 1846 to Isom Stamper. Tbe effort therefore is to relocate tbe described boundary as did tbe surveyor in making tbe survey upon which tbe patent issued. Tbe land is thus described in tbe patent:
“Beginning on three chesnuts and chestnut oak near tbe bead of Pigeon fork, thence running tbe dividing ridge between Turkey creek and tbe Line fork to tbe Defeated branch, thence tbe dividing ridge between tbe Defeated branch and Turkey creek, S 10 W. 68 poles to a chestnut, thence S. 10 E. 98 poles to a chestnut oak sarvis, thence S. 68 W. 125 poles to a stake, thence S. 5 E. 100 poles to a stake, thence S. 68 W. 2,000 poles to a stake, thence S. 40 W. 320 poles to a stake, thence N. 1,328 poles to a stake, thence N. 77 E. 1,900 poles to a stake, thence S. 33 E. 600 poles to the beginning.”
Upon the face of the patent it would seem.that the described boundary had eleven sides, the first being the dividing ridge between Turkey creek and Line fork, the
To this extent we concur in the conclusions reached in these cases, but this is as far as they agree or are relevant here. We have not the evidence before us upon which the circuit court of appeals in the first case rejected entirely the ridges in locating the land in accordance with the plat, and the courses and distances in the
We come, therefore, to a consideration of the evidence in this case to determine what is the proper location of a patent which is ambiguous because of the fact at least two and possibly five of its line® are twice separately and differently described. Some pertinent and controlling facts are thoroughly established. These are:
(1) The surveyor actually surveyed only the first two of the nine boundary lines he described. These two lines he marked by establishing and marking the three corner® connected by them and by marking line trees as well.
(2) These lines as run and marked by him are straight lines running the general course of the first of the two ridges referred to but not following its sinuosities.
(3) The other seven boundary lines of the patent were not actually surveyed or marked by the surveyor ■but were located by him simply by protraction after the actual surveying on the land had been completed.'
(4) The ridges referred to in the patent are well known and permanently established objects.
(5) To follow the two lines the surveyor ran and marked out on the land and the other seven lines that he protracted, according to the courses and distances called for will follow the general course but not the sinuosities of the first of the two ridges referred to a part of its distance, but will not reach the second ridge referred to by about a mile, but the figure thu® formed will conform to the plat he filed with his original survey, will close and will contain approximately the number of acres called for in the patent.
(6) To locate the patent by following the sinuosities of the first ridge referred to until the second is reached and following the meanderings of the second ridge without regard to the courses but for the approximate distance of the third, fourth and fifth lines, will reach a point on the second ridge known as Eagle G-ap, near if not at the end of that ridge, but which is not mentioned in the patent or certificate of survey, nor indicated upon the original plat. To close the survey thus started by starting the sixth line at Eagle Gap the courses and distances called for on the seventh and eighth lines must
A certain and necessary inference fo be drawn from these facts is that the surveyor inTocating this, land for patent, so far as he located it upon the land, did not follow the sinuosities of the first ridge described and therefore did not mean when he said “thence running” these ridges to follow the sinuosities of either, but intended only to follow their courses in a general way as he had done so far as he ran them. This destroys absolutely appellees’ theory that the combined distances of the third, fourth and fifth lines were to be exhausted in following the meanderings of the top of the two ridges and that at the point of exhaustion the sixth line was to begin. Not only so, but it leaves no way, even by disregarding both the distances and calls of the seventh and eighth lines, by which the boundary may be closed so as to form a figure resembling the original plat or containing more than about half as many acres as were intended to be and believed had been included.
The only evidence offered by the appellees to justify such a location was. proof that along the top of the two ridges were marked trees which as early as 1863 had the appearance of old marks, and that Isom Stamper from 1'863 and possibly earlier had claimed and by general reputation in the community was believed to own all of the land on the Turkey creek side of these two ridges to the tops of same.
The preponderance of evidence upon the question of the age of marks upon such trees as are marked along the top of these two ridges is that they were not nearly so old as this patent, and there is no evidence whatever that at the time of the survey any trees except the first, second and third corners and some trees on these two lines, were marked by the surveyor or with his knowledge. Upon the contrary, it is conclusively established that when he reached the third corner which he marked and called for in his survey, he quit the field and completed his work elsewhere simply by protraction. This evidence for the appellees is therefore wholly insufficient to establish any original location of the patent along the meanders of the ridges whatever might have been its effect if a question of adverse possession were involved.
But learned counsel for appellees argue most earnestly that the ridges called for are known and fixed objects on the land and must therefore control in the location of the patent over courses and distances where there is ambiguity in the description and uncertainty as to the proper location. This is unquestionably one of the most thoroughly established rules for construing and locating a patent and when applicable often controls. The trouble here is not with the rule but its application to the facts. The patent, survey, plat, and extraneous evidence all prove that these known and fixed ridges were not run or intended to be run by the surveyor in the original location of this patent along their crests as they meander, but were to be followed only in a general way and by straight lines, two of which he surveyed and marked, about which there is no trouble whatever, but as to the other three straight lines, which he unquestionably intended should also follow these ridges in a general way, he has left absolutely nothing for our guidance in fixing their exact location, as we must do, but their courses and distances.
When we reach the end of the fourth line we are at a point on the side of the first ridge and at least a mile from the top of the second ridge. We might possibly extend this fourth line until it reached the second ridge in accordance with an approved rule of law (if we could tell when we reached the second ridge and at what point thereon to stop) and by adding an equal distance to the opposite (seventh) line, close the survey with a boundary nearly conforming to the plat, although this would include nearly, if not quite, 17,000 acres instead of the 12,000 acres intended and believed to have been included. But the fact that we cannot tell even approximately where we should end the fourth line so as to lay the fifth line upon the second ridge as intended, precludes the possibility of our adoption of this plan to give effect to the reference to this ridge in locating the patent. We certainly would not be justified in extending the fourth line to the top of the second ridge, a distance of about a mile, even if we could be certain when we reached the
We are not permitted to guess where upon tbe second ridge it was intended to lay tbe 5th line, nor can it be determined accurately from tbe five maps and evidence in this record where tbe first ridge ends and tbe second one begins, since tbe two are but one continuous ridge with Turkey creek on one side and Line fork and Defeated branch meeting about midway on tbe other. Consequently tbe second ridge, considered as only it can be, as an aid in locating the lines otherwise and more accurately described, is of no practical value whatever, and of necessity must be disregraded entirely.
Wherefore the judgment is reversed and cause remanded with directions to enter a judgment in conformity herewith.