Johnson v. Potter

433 S.W.2d 358, 1968 Ky. LEXIS 274
CourtCourt of Appeals of Kentucky
DecidedJune 21, 1968
StatusPublished
Cited by4 cases

This text of 433 S.W.2d 358 (Johnson v. Potter) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Potter, 433 S.W.2d 358, 1968 Ky. LEXIS 274 (Ky. Ct. App. 1968).

Opinion

PALMORE, Judge.

The appellants, hereinafter called the Johnsons, leased a tract of land and right-of-way from Curtis Potter and wife, Corbie Potter, for the purpose of quarrying limestone. The term of the lease ran from 1949 to 1964 with a 10-year renewal option. In 1961, twelve years later, the appellees, whom we shall call the Richard Potter heirs,1 brought this suit to quiet their title to a 30-acre tract on which the Johnsons had constructed a haul road and installed substantial equipment. The Johnsons appeal from a judgment declaring title to be in the Richard Potter heirs but permitting the Johnsons to continue using the haulway and maintaining their installations on the property for the duration of the lease from Curtis and Corbie Potter.

It is conceded that the property in question is not included in the description contained in the lease, though both the John-sons and the CurtL Potters thought it was until it appeared otherwise during the progress of this litigation. The misunderstanding arose in the following manner :

Richard- Potter and his wife, Winnie Potter, both of whom died in 1935, had made conveyances of land to all of their children except A. J. Potter, a son. In 1938 A. J. Potter filed suit in the Pike Circuit Court against the other children and heirs of Richard Potter (who died intestate) alleging that these conveyances were advancements, and that when his father died he still owned one tract of land, which was of [359]*359less value than each of the tracts theretofore conveyed to the other children, and which he had intended to convey to A. J. Potter. He alleged also that Richard Potter left no other property, real or personal, and that by reason of the advancements made to the other children he, A. J. Potter, was entitled to this one remaining parcel. In due course a judgment was entered to the effect that A. J. Potter was the owner of the property. The description of the property as set forth in A. J. Potter’s petition (complaint) and in the judgment is the same description contained in the subsequent lease from Curtis and Corbie Potter to the John-sons.

The fact is that at the time of his death Richard Potter also owned the 30-acre tract that is the subject of this litigation. It lies at the entrance of Mountain Branch into Elkhorn Creek at the foot of Cumberland Mountain, whereas the tract described in the A. J. Potter judgment is on top of the mountain near the head of Mountain Branch. The two tracts are separated by a larger tract conveyed by Richard Potter and wife to Toy Potter, another of their sons, in 1923.

Curtis Potter is one of the children of A. J. Potter. Following the death of A. J. Potter his widow and other children conveyed the tract described in the judgment i., Curtis and his wife, Corbie. Curtis and Corbie were divorced some time after they had leased it to the Johnsons, and the John-sons purchased Corbie’s undivided half interest during the pendency of this action.

The Johnsons make two contentions, (1) that the Richard Potter heirs have not sustained the burden of proving their ownership of the 30 acres, and (2) that if the Richard Potter heirs do own the property the Johnsons nevertheless have acquired an easement by estoppel.2

At the beginning of the evidentiary hearing the parties stipulated as follows: “There is no issue as to preceding title to the property as the parties claim as successors to Richard Potter and Winnie Potter.” In other words, they stipulated that they were claiming under a common source of title. It is conceded that Richard Potter owned the property at his death, so if it did not pass to A. J. Potter under the judgment in the 1938 proceeding it still belongs to his heirs. Though it is true that a party asserting ownership of real estate must prevail on the strength of his own title rather than the weakness of his adversary’s claim, under the circumstances of this case the title of the Richard Potter heirs is established by the stipulation unless it is shown to have gone to A. J. Potter in the 1938 suit.

The Johnsons argue that the purpose and intent of the judgment in the 1938 suit were to give A. J. Potter all that remained of the Richard Potter estate, and to divest the other heirs of any interest in it. They say the judgment made that determination and is res judicata.

We have examined the entire record and transcript of evidence in the 1938 proceeding, all of which was incorporated as a part of the record in this case. It is clear from the testimony that the “tract” owned by Richard Potter at his death was not one tract, but consisted of two pieces of land, one on top of the mountain above the cliff and the other on Elkhorn Creek. For example, we quote from various witnesses as follows:

A. I. Potter (plaintiff)
Q- “How many acres is there in the tract described in your petition?"
A- “I imagine there’s 200 acres. I judge in the lower part 25 acres, maybe more and maybe not that much. Then there’s something like 200 [360]*360acres of the mountain. I don’t know that there’s that much.”
Q- “Now this 25 acres in the lower tract there, it lays down next to Elkhorn Creek?”
A- “Yes, sir.”
*****
Q- “Andy, talking about this tract of land your father owned at the time of his death, I believe you say there’s about 25 acres that lays down on the creek below the limestone cliff and the rest lays above that cliff?”
A- “Yes sir, that’s right.”
* * sj« ⅜ ⅜
Q- “The only thing of any value is this 25 acres that lays off down on the creek?”
A- “Yes sir, and some of it has been cleared up for 50 years.”
Q- “Tell the court whether or not these other tracts lay along Elkhorn Creek on the public highway?”
A- “All except Toy’s and his joins this 25 acres.”

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433 S.W.2d 358, 1968 Ky. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-potter-kyctapp-1968.