Middleton v. Potts

174 S.W. 9, 163 Ky. 550, 1915 Ky. LEXIS 268

• Court: Court of Appeals of Kentucky
• Decided: March 16, 1915
• Status: Published

Opinion

Opinion op the Court by

Judge Nunn

Affirming.

This controversy involves the location of a boundary line between two tracts of land for a distance of 180 poles. It seems that one end of the line is not disputed. Appellant claims that the course from that point is North 70% East. This is the course set out in deeds of partition executed in 1872, and the same course has been used in all deeds conveying the land from that time down to the present owners. A fence was erected on the line at the time of the division, and has ever since been maintained there or thereabouts, but there is evidence to show that in repairing and rebuilding the fence it has been shifted from the true line. Owing to variation in the magnetic needle the compass course is now North 73 East, as shown by the testimony of the county surveyor and another surveyor. But the line fence does not conform to the compass course, and the question is whether the compass course shall control. While the parties regarded the fence as the line, there is no evidence of a claim by either party of any land beyond the surveyed boundary line or deed calls.

The question is one of fact, and only a part of the evidence is before us. That is, the map used on the trial and to which the witnesses frequently referred is not in the record. Without the map we cannot get a satisfactory idea of the controversy, but it is apparent from the record that there is evidence to support the theory of both sides. The jury found for appellee — that is, they determined that the true line is North 73 East — and it appearing that the verdict is supported by the evidence, the judgment should be affirmed, and it is so ordered.