201 Ky. 571 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
The subject matter of this litigation is a small tract of land containing about 22 acres located in Pike county. The shape of the tract corresponds in a large measure to that of a stringed bow, familiar to every country boy and which he uses to throw his arrows. A ridge corresponding to the bow in the illustration separates the waters of Sand Lick branch from those of Mud Lick branch just before they each empty into Pond creek. On February 9,1849, Thomas Hunt obtained a survey of 150 acres of land lying south of the ridge on the Mud Lick side, and on July 8, 1850, he obtained a patent therefor. On August 29, 1859, William McCoy obtained a survey for a like sized patent on the Sand Lick side of the ridge which he carried into patent on the 11th day of June, 1860. Appellants, Varney and wife, are the remote vendees of a portion of the Thomas Hunt patent, while the appellee, Orinoco Mining Company, is a like vendee of the land in controversy and claimed by it to be included in the McCoy patent. Claiming to be the owners of the controverted land, as being a part of the Hunt patent, appellants as plaintiffs below brought this equity action against appellee and defendant below to quiet their title, alleging that they owned it and were in possession of it and that defendant was asserting title to it and committing trespasses thereon Plaintiff also claimed title by adverse possession. The answer denied plaintiffs ’ title or possession, and denied that the land was not included in the description of the Hunt patent but was included in that of the McCoy patent.
The cause, after preparation, was submitted and the court dismissed plaintiffs’ petition and adjudged defendant to be the owner of the disputed land, and complaining of that judgment plaintiffs prosecute this' appeal. The questions presented are: (1), whether the land was covered by the Hunt patent, and if not (2), whether plaintiffs proved title by adverse possession.
The law seems to be quite well settled that “In the absence of some controlling indication to the contrary, when a description of the boundaries of land calls for a line from one monument to another, the law presumes that a straight line is intended.” 4 R. C. L. 112; 9 C. J. 167; Carter v. Elk Coal Co., 173 Ky. 378, and numerous other Kentucky cases referred to in that opinion. It. is the contention of plaintiffs that the call or line in dispute should be construed so as to run around the top of the ridge, forming the bow in our illustration, instead of straight from the chestnut oak or oaks on top of the ridge to the three on the bench, which would form the string to the bow in the illustration, and in support of that conten- ■ tion it is urged that the words “up said ridge, ’ ’ in the descriptive part of the disputed line in the Hunt patent, is a “controlling indication” that it was intended to run the line around the crest of the ridge instead of straight. It will be observed, however, that in the Carter case, supra, almost the exact language was before us for interpretation, except that the words “down the spur” appeared iu the indicated straight line instead of “up said
But it is insisted that Stephen Trout, the immediate vendee of the patentee Hunt, as well as plaintiffs, his vendees, have adversely held the possession of the land in controvery so as to ripen title in them; but we do not so interpret the testimony. It is true that many witnesses testified that Trout claimed to the crest of the ridge, as did also plaintiffs since their purchase from him, but neither took actual possession of any part of the controverted land. The only acts of ownership of it by them were occasional cuttings of timber therefrom. They made no settlement upon it either by clearing land or construction of houses, and it is too well settled to require citation of authorities that one may not acquire title by adverse possession except to the extent of his boundaries, although he may claim beyond them and at the time be under the mistaken impression as to the true location of his lines, unless he takes actual possession beyond his boundaries and within those of the disputed tract.
It is again insisted that the respective holders of both the Hunt and McCoy titles regarded the crest of the ridge as the dividing line between the two patents, but the testimony concerning that is vague and consisted mainly in what the witnesses said was their understanding, as well as that of others. It is true that a witness testified that
In this character of case plaintiff, before he can succeed, must establish his title the same as in an ejectment action in which his success depends upon the strength of his title and not the weakness of that of his adversary. Slone v. Hall, 145 Ky. 232; LeMoyne v. Hays, idem 415; Musick v. Horn, idem 639; Engle v. Bon-Foley Lbr. Co., 173 Ky. 35; Bryant v. Hamblin, 183 Ky. 716, and Cooper v. Williamson, 191 Ky. 213. That being true, plaintiffs are in no condition to complain of that part of the judgment adjudging defendant to be the owner of the land, since their rights are not affected by its propriety or im
It results, therefore, that the court properly dismissed the petition, and the judgment is affirmed.