Citation Numbers: 183 Ky. 279
Judges: Clarke
Filed Date: 2/14/1919
Status: Precedential
Modified Date: 7/24/2022
Affirming.
As was stated in the opinion upon the former appeal of this case, which is reported in 160 Ky. 211, and contains copies of the map and patents referred to herein, J. C. Sproul brought this suit against the Inter-State Coal Company to recover 25 acres of land which, as he alleged, was covered by a patent from the Commonwealth to his brother, G. W. Sproul, of date October 28, 1891, and had been conveyed to him by the patentee.
This patent upon the former appeal was held to be void for uncertainty. Upon the return of the case, plaintiff introduced more evidence than on the first trial, tending to prove that the white oak, which is located at figure 9 on the map, was a corner to the A. Legere patent, and the beginning corner of his patent, and that the chestnut, Berry Lathram’s corner, called for as a corner in his patent, is a well known object and located at figure 3; he also introduced new evidence in an attempt to show that his patent might be closed from figure 1, to reach which all called for courses and distances had been disregarded, by following some eighteen or more lines of a 200 acre Lunsford survey, not referred to in the evidence' upon the former trial, to his beginning corner, the white oak on the road at figure 9. It will be noticed that the only calls in his patent from the Spanish oak, Lathram’s corner, located at figure 1 on. the map, to his "beginning are “thence E. 25 poles to a Spanish oak, Lunsford’s corner; thence with Lunsford’s line to the beginning,” which rather clearly indicates that the survey was to lie closed from Lunsford’s Spanish oak corner by one or possibly more lines .of his 100 acre patent previously referred to in plaintiff’s patent, and it does not seem to have occurred until quite recently to plaintiff, who himself made this survey, that this was a reference to Lunsford’s 200 acre survey; so we do not think this effort to close his survey conforms in any substantial manner with the calls of his patent, or that the new evidence introduced by him upon the last trial upon this question was any more satisfactory than the theory advanced by bim for closing the patent upon the former trial,which was rejected by this court; but even if we might concede that the theory now advanced by him for closing his survey is a possible^compliance with the calls of his patent, it would still be impossible in our judgment - upon his evidence upon the last trial, to make his patent cover the land in controversy or any land.
When plaintiff’s lines connecting the white oak and chestnut are run with the lines of the Legere patent called for as they had been established, and of which plaintiff must have known before he made his survey, they coincide wdth the lines of the Lunsford 200 acre survey, which he now claims as his closing lines, but which evidently was not so regarded when the survey was made, as the reference in the patent is only to Lunsford’s 100 acre patent; nor does such a possibility seem to have occurred to plaintiff himself until after the first trial of the case.
It is therefore apparent that even if we accept the introduction upon the last trial of the 200 acre Lunsford patent, as affording a possible basis for closing plaintiff’s survey from the Spanish oak called for in his patent as Lunsford’s corner, the location of his patent is shown to be even more indefinite and impossible than upon the first trial, because mnning with Legere’s lines as they had been located and were then visibly marked, upon the land, the first two lines of his patent pass along the eastern side of the land in controversy and coincide with his closing lines, and therefore include not only none of the land in controversy, but no land whatever. Consequently the trial court did not err in sustaining, at the close of the evidence introduced in plaintiff’s behalf, the defendant’s motion for a peremptory instruction.
.Wherefore the judgment is affirmed.