165 Ky. 456 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
This is an action by plaintiff, James P. Combs, against defendant, Virginia Iron, Coal & Coke Company, to quiet his title to the oils, gases and mineral products underlying a tract of land situated at the mouth-of the North Fork of the Kentucky River. From a judgment in favor of plaintiff the defendant' appeals.
Plaintiff and defendant both claim title from a common grantor, Clinton Combs, the father of plaintiff. Plaintiff’s title is as follows: His father, Clinton Combs, conveyed the land in controversy to James P. Combs, Cooley Combs, and Mason Combs, in the year 1892. James P. Combs subsequently purchased the interests of his two brothers, Mason and Cooley Combs, by deeds which he duly placed on record. Defendant claims urn
Briefly stated, the evidence is as follows: Plaintiff testified that the lánd in controversy was the home farm •of his father, upon which his father had lived ever since he was first married. His father was 97 years of age at his death in 1900. The land in controversy was not ¡surveyed by or patented in the name of his father. The land did not adjoin the lands of Eli Hall and Robert Brashear, but at that time lay about 2 miles from Hall’s land and about a mile from Brashear’s land. He also introduced in evidence five patents to lands lying on the North Pork of the Kentucky River. These patents were all in his father’s name. Each one of these patents adjoined the lands of Eli Hall and Robert Brashear and none of them covered the land in controversy. D. T. ■Combs testified that the patented land adjoined the lands •of Eli Hall and Robert Brashear. He further stated th; t Eli Hall’s farm in 1887 was about 2 miles distant from the home farm of Clinton Combs. Felix Brashear, son •of Robert S. Brashear, testified that his father’s land ■extended to the top of the ridge between the Kentucky River and Carr’s Fork and that he knew of no other land lying between Ms father’s land and the Clinton Combs land. However, on being asked if the boundary ■of the land claimed by plaintiff adjoined the land of Robert S. Brashear or Eli Hall, witness answered as follows: “It don’t join in any place that I know of; I won’t say whether it does or not, I don’t know.” The testimony of James J. Brashear, another witness for defendant, is indefinite and has but very little bearing on the case. Mr. Morgan, an attorney for defendant, testified that he- assisted in abstracting defendant’s title in Perry County. He found that the only land owned by Clinton Combs in the year 1887 was his home farm.'
As plaintiff’s deeds were shown to cover the land in -controversy, the burden was on the defendant to prove
Judgment affirmed.