Fugate v. Martin

66 S.W.2d 40, 252 Ky. 189, 1933 Ky. LEXIS 995

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: December 12, 1933
• Status: Published

Opinion

Opinion op the Couet by

Judge Richabdson

Affirming.

Henry Fugate claims title by adverse possession of a portion of a 400-acre tract of land situated in Knott county, patentd by Esau Hammons in 1849. Archibald Puller, the predecessor in title of Fugate, made a survey covering the land in controversy in 1870. His survey overlaps portions of the Esau Hammons survey and patent. Fugate claims that his title by adverse possession has ripened into a perfect title as against the Ham-mons patent and those claiming under it. The major portion of the evidence in behalf of the parties was directed to the identity and location of the beginning corner of the Hammons 400-acre patent. There is a variance in the boundary of the 400 acres, as it appears in the survey and entry, and in the patent. It is an established rule that, where such discrepancy occurs, the original entry and certificate control the calls, courses, and distances in the patent. The witnesses of Fugate located the beginning corner of the 400-acre patent where he claims it to be. Those in behalf of Martin identified a small, decayed, forked sugar tree as the beginning corner. As respects the sugar tree corner, there is no difference in the Hammons’ entry and certificate, and the patent. The identity and location of the beginning corner at the forked sugar tree are abundantly established by witnesses claiming a personal knowledge of it for 60 years or more and, also, knowledge obtained of old citizens now deceased. The trial court accepted their testimony as to the identity and location of the beginning corner of the Esau Hammons 400-acre patent. The surveyors who have testified for the respective parties differ in their location, not only as to the beginning corner, but in other courses and distances; also, in location of the entire boundary of the land respectively claimed by the parties. Esau Ham-mons entered and obtained a patent for 1,500 acres adjacent to the 400 acres. According to the surveyors, testifying in behalf of Fugate, their boundaries overlap. Accepting surveys as made by the surveyors who have testified in behalf of Martin, this- overlap of these patents disappears. The deed of Archibald Fuller to Solomon Fuller, a predecessor in title of Fugate, shows that the description of the Fugate land calls for the Delby Combs lines. The deed of Solomon Fuller to "William Combs calls for tbe lines of tbe Hammons 400-acre survey. Fugate’s deed from Combs contains tbe same description of tbe land, and calls for tbe lines of tbe Hammons 400-acre survey. These deeds thus corroborate the testimony of tbe witnesses who locate tbe beginning corner of the Hammons 400-acre patent at tbe sugar tree and establish that Fugate’s predecessors’ deeds do not cover tbe land in controversy, and show bis line runs with tbe outside lines of tbe Hammons 400-acre patent.

Fugate endeavored to establish title of tbe disputed land by 15 years’ adverse, open, notorious, and continuous possession.

Adverse possession need not continue tbe whole 15 years in tbe same person. One claiming such possession is entitled to add bis possession to those under whom be claims. Miniard v. Napier, 167 Ky. 208, 180 S. W. 363. However, to acquire title by adverse possession, it must be such as to give a cause of action for every moment of tbe 15 years, and, if tbe possession is broken, it must be counted from tbe break and not from tbe commencement of tbe possession. Ashcraft v. Courtney (Ky.) 121 S. W. 625. Any break in tbe possession destroys all possession previously held. Sparks v. Jackson, 142 Ky. 17, 133 S. W. 959. It is not required that tbe party, himself, live on tbe land; be may do so through tenants. Terry v. Loudermilk, 158 Ky. 353, 164 S. W. 959. In order to acquire title against an elder grant, tbe adverse possession must not only be actual, but so continue for tbe statutory period as to furnish a cause of action every day during that period. Courtney v. Ashcraft, 105 S. W. 106, 31 Ky. Law Rep. 1324; Ashcraft v. Courtney (Ky.) 121 S. W. 625; White v. McNabb, 140 Ky. 828, 131 S. W. 1021; Logan v. Williams, 159 Ky. 412, 167 S. W. 124; Id., 160 Ky. 641, 170 S. W. 22; Bibb v. Daniels, 183 Ky. 659, 210 S. W. 454; Meek v. Davis, 189 Ky. 64, 224 S. W. 659.

In Meek v. Davis, tbe claimant by adverse possession removed bis family about a mile, and remained for tbe cropping season, then moved back. It was held this act constituted a break in bis actual possession, which was fatal to bis claim of title by adverse possession.

Fugate in bis testimony claims that be paid tbe •taxes, cut and removed timber from, and used, tbe dis- putecl land as lie pleased, but “one year there was no body on it.” His own testimony showing a break of possession for one year and failing to show adverso, open, notorious, and continuous possession for 15 years next following such break, falls far short of establishing his title by adverse possession.

It is argued in Fúgateos brief that Martin’s deed is ehampertous and void. It fairly appears that the ■case was not prepared on this theory. Anyway the evidence as to actual possession of the disputed land at the date of Martin’s deed is not definite. The deeds under which Fugate asserts title, calling for the outside lines of the 400-acre patent, show no overlap of the land covered by his deed and the 400-acre patent, thus eliminates the claim that Martin’s deed is ehampertous.

Judgment of the chancellor, being in harmony with our views, it is affirmed.