May v. Wolf Valley Coal Co.

180 S.W. 781, 167 Ky. 525, 1915 Ky. LEXIS 859
CourtCourt of Appeals of Kentucky
DecidedDecember 17, 1915
StatusPublished
Cited by7 cases

This text of 180 S.W. 781 (May v. Wolf Valley Coal Co.) 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
May v. Wolf Valley Coal Co., 180 S.W. 781, 167 Ky. 525, 1915 Ky. LEXIS 859 (Ky. Ct. App. 1915).

Opinion

[526]*526Opinion op the Court by

William Rogers Clay, Commissioner

Affirming.

This action by plaintiffs, James May and John Moore, against defendant, Wolf Valley Coal Company, involves the title to a small tract of land located in Breathitt County on the North Fork of the Kentucky River. At the conclusion of the evidence, the trial court peremptorily instructed the jury to find for plaintiffs as to three-tenths of an acre of ground and dismissed the petition as to the remainder of the land in controversy. Plaintiffs appeal.

Plaintiffs claim title under a patent for 50 acres granted to Allen Moore on September 16th, 1847. Defendant claims under certain patents issued to Joseph Spencer prior to the issue of the Allen Moore patent. Plaintiffs claim no lands other than those embraced -in the Allen Moore patent. Therefore, the real question ■is the proper location of that patent and no question of adverse possession is presented.

The description in the Allen Moore patent is as follows :

“ (1) Beginning on the south side of the North Fork of the Kentucky River at a beech; thence .up said river S. 27 E. 38 poles to three poplars; (2) west 40 poles to a double lynn; (3) thence south with a line of a survey made in the name of Nimrod McIntosh 207 poles to a corner of the said survey; (4) thence W. 40 poles to a stake; (5) N. 3 E. 239 poles to a stake; (6) thence E. 47 poles to the beginning.”

The Nimrod McIntosh survey called for in the above patent was made on September 28th, 1824. It calls for 50 acres and the description is as follows:

“ (1) Beginning at the mouth of a drain on the south side of said fork on three poplar trees at the first Narrows below said McIntosh field; thence S. 60 E. 30 poles to a poplar, hickory and beech trees, the beginning corner to a 32-acre survey made in the name of said McIntosh; (2) thence with the line of .same S. 52 W. 12 poles to a stake; (3) thence S. 21 E. 61 poles to a white oak; (4) thence S. 32 W. 15Q poles to a beech and white oak; (5) thence N. 207 poles to a stake; (6) thence E. 40 poles to the beginning.”

The 32-acre McIntosh survey called for in the McIntosh survey of 1824 was made on March 13th, 1810, and [527]*527patent'issued therefor in 1816. The patent describes the land as follows:

“ (1)‘ Beginning at a poplar, two walnuts and beech on the south bank of said fork 90 poles as said fork meanders below where Nimrod McIntosh now lives; thence up said fork as it meanders S. 65 E. 56 poles; (2) S. 38 E. 14 poles; (3) S. 18 E. 20 poles; (4) S. 35 W. 22 poles; (5) S. 52 W. 180 poles to a forked elm, one. other elm and poplar on the bank of said fork; (6) thence N. 38 W. 20 poles to two white oaks and beech on the side of the ridge; (7) thence N. 52 E. 150 poles to a beech and white oak; (8) thence N. 21 W. 60 poles to a stake; (9) thence N. 52 E. 12 poles to the beginning.”

The Nimrod McIntosh patent of 1816 for 32 acres, the Nimrod McIntosh patent of 1824 for 50 acres, and the Allen Moore patent of 1847 for 50 acres, all lie on the south side of the North Fork of the Kentucky River, a short distance. above the mouth of Wolf Creek, in Breathitt county.’ The McIntosh patent of 1816 for 32 acres lies next to the river; next to it is the McIntosh patent of 1824; and just back of the McIntosh patent of 1824 is the Allen Moore patent of 1847.

Plaintiffs do not claim adverse possession of any land outside of the Allen Moore patent. They' merely claim to the line of that patent, wherever it may be located. The question at issue turns on the proper location of that patent. If located as claimed by plaintiffs, it covers the land in controversy; if located as claimed by defendant, it covers only three-tenths of an acre of the land in controversy. The accompanying plat, will explain the respective claims of the parties. The location claimed by plaintiffs is C-l-6/-D-E-F/-C. The location as contended for by defendant is C-1-6-D-E-F-C. • There is no dispute as to the proper location of the McIntosh patent of 1906.. It begins at 2 on the plat and runs with the river to the point O, thence to B, thence to D, thence to 4, thence to 3, and thence to the beginning. It appears, however,, that if the course of the line from O to B be followed,, it will lead across the river to the point A, and that the course of that line has to be changed to B in order to' reach the corner called for, which is admitted by the parties to be the correct corner. The McIntosh patent, of 1824 begins' at the point 1 and goes to 2, thence to 3, thence to 4, and thence to D. To reach the point D, however, the course of the fourth line is changed to [528]*528reach, the admitted corner. There is a dispute between the parties as to the location of the sixth corner. Plaintiffs claim that it should be at the point 6', while defendant claims that it should be at 6. To sustain their contention plaintiffs insist that distances should yield to courses and that the proper way to reach the sixth corner is to run the lines from the known corners, 1 and 2, according to the courses fixed in the patent, and their intersection 6' will be the corner of the survey. Bryan-v. Beckley, Lit. Sel. Cas., 93; Brashears v. Joseph, 108 S. W., 307; Chambers v. Tharp, 93 S. W., 627; Kerr v. DeLaney, 91 S. W., 288; Limbert-Driskell v. Dixon, 143 Ky., 759; Combs v. Valentine, 144 Ky., 184; Williams v. Brush Creek Coal Co., 149 Ky., 188. For the same reason it is contended that the sixth corner of the Allen Moore survey should be at F', or the point of intersection of the lines run according to the courses of the patent from the known corners, C and E. While, as a general rule, the principle contended for by plaintiffs is undoubtedly correct, yet it is not the invariable rule that distance yields to course. On the contrary, it is well settled that where the facts clearly show a mistake in course instead of distance, the distance in which no error appears should be preferred to the course which is shown to be erroneous. Preston, et al. v. Bowmar, et al., 2 Bibb, 493; Blight v. Atwell, et al., 4 J. J. Marshall, 278; Davies v. Wickstrom, 56 Wash., 154,105 Pac., 545, 134 Am. St. Rep., 1100; Preston v. Bowmar, 6 Wheat., 580, 5 L. Ed., 336; Loring v. Norton, 8 Me., 61; 4 R. C. L., sec. 44, page 108. In discussing the question in the case of Preston, et al. v. Bowmar, et al., supra, the court used the following language:

“As, therefore, when the necessity of presuming a mistake of distance in some, or, of course, in others of the lost lines, is produced by the mistake which is found in the length of the lines extant, we adopt the presumption of a mistake in distance rather than in course; so, by a parity of reason when the same necessity is produced by the existence of a mistake in the course of the lines extant, it would seem proper to presume a mistake in the course rather than in the distance of the lost lines. In this way the necessity of presuming a mistake of either course or distance, will be made to operate according to the cause which produced it.”

[529]*529In the case of Preston v. Bowmar, 6 Wheat., 580, 5 L. Ed., 336, the United States Supreme Court said:

£ £ It may be laid down as an universal rule, that course and distance yield to natural and ascertained objects. But where these are wanting and the course and distance cannot be reconciled, there is no universal rule that obliges us to prefer one or the other.

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Bluebook (online)
180 S.W. 781, 167 Ky. 525, 1915 Ky. LEXIS 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/may-v-wolf-valley-coal-co-kyctapp-1915.