Stearns Lumber Co. v. Ross , 144 Ky. 687 ( 1911 )

Opinion op the Court by

Judge Nunn

— Reversing.

Thomas M. King obtained a patent from the Commonwealth to the following boundary of land:

“Beginning at four spruce pine on the west cliff of Paunch creek, corner of said King’s upper survey -known a_s the Allen Stephens’ survey, running thence with a line of said Stephens’ survey, N. 84 W. 100 poles to a stake in said line and corner of said King’s Patton Thompson survey; thence with the Thompson survey N. 41 W. 277 poles to a stake corner of said survey; thence leaving the survey, N. 35 E. 20 poles to a stake on top of the main cliff West of Paunch creek; thence along the cliff binding on the meanders thereof, when reduced to a straight line, S. 59 E. 144 poles; thence S. 46 E. 205 poles still binding on the cliff to the beginning. ’ ’

King conveyed this land to appellee, Eoss. A greater portion of it is bounded by a cliff of Paunch creek. Appellant purchased from one Bryant the timber on a tract of land on the opposite side of the cliff] and creek. It cut and removed the timber and appeileej. sued for the value and recovered a judgment for $300.00. Appellant claims it was entitled to a peremptory in-' struction at the conclusion of appellee’s testimony, but if not then at the conclusion of all the testimony. This] is the only question necessary for this court to determine.

If appellee’s boundary extended across the creek, the judgment should be affirmed, but if it only extended to the edge of the cliff on his side of the creek, then appellant was entitled to a peremptory instruction. For appellee to get the boundary of land upon which the timber was situated, the call “N. 35 E. 20 poles to a stake on top of the miain cliff west of Paunch creek,” must be extended 157 poles, which would cross the creek at the end of 20 poles. It will be noticed that the beginning point is west of the creek and by reason off the winding of the very crooked creek the extension of the 20 pole line 157 poles to the top of the cliff, will go to a point which is on the west side of the creek at that place, but on the opposite sidei of the creek from the beginning point. The calls given in the patent do not mention the fact that the creek is ever crossed to get back to the beginning, nor does it speak of crossing the creek on the 20 pole line. Paunch creek is a stream off considerable length, and according to the most of the proof, it passes the land in dispute in a deep gorge at the foot of almost unbroken cliffs which are from one to three hundred feet above the stream1. The undisputed proof shows that for several miles there are only a few places where it is possible to find a passage across the creek. There is a break in Ubis cliff near the 20 pole line caused by another stream flowing into Paunch creek, but about one hundred feet from this point the cliff sets in again and continues to the beginning corner. The course and distance to be run from the end of the twenty pole line is “S. 59 E. 144 poles.” If this line is run from the end of the 20 pole line it will not meander with the cliff as the patent says it should, nor will it do so if that line is extended as claimed by appellee, so this line cannot aid us in arriving at the true boundary of the land, nor is the call “S. 46 E. 205 poles” of any benefit. It is conceded that the surveyor in surveying the land for King did not actually run the lines, but that he extended the boundary by protraction from the end of the 20 pole line around to- the beginning, and in our opinion, he never'intended to cross the creek; that it was his intention to confine the survey to the meanders of the cliff to the beginning. The patent to Thomas King was introduced as evidence and gives the boundary as above copied, and on the back thereof is a plat of the laud made at the time it was patented by King, which shows conclusively that 'it -was all on one side of the creek. "While the plat does not show the creek to be a crooked one as it really was, yet, it shows that it was the intention to locate the land on that side of the creek and confine the patent to the meanders of the cliff. While the patent calls for only one hundred acres, the testimony shows that when the boundary is confined to one side of the creek it contains three hundred or more acres. The patent also shows that Burrell King was one of the chain carriers when the land was entered. He is a son of Thomas King, and he testified that they did not cross the creek; that it was never intended that the patent should include the land beyond the creek, and that his father never claimed any land on the opposite side of the creek.

In the case of Bell County Land & Coal Co. v. Hendrickson, 24 Ky. L. R., 371, the court said:

“The original plot of the survey may always be used in evidence to show the position of the land, and is evi ■ denee of the most potent kind in determining the original location of the lines and corners.”

As stated, the plat in the case at bar does not showi that the land patented by King extended across the creek, and Burrell King’s testimony shows that his father never claimed on but one side of the creek.

For these reasons, the judgment is reversed, and iE the evidence is practically the same upon 'another trial, the lower court will give a peremptory instruction in favor of appellant.