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Pace v. Asher

126 S.W. 366, 137 Ky. 708, 1910 Ky. LEXIS 615
CourtCourt of Appeals of Kentucky
DecidedMarch 9, 1910
StatusPublished
Cited by1 cases

This text of 126 S.W. 366 (Pace v. Asher) 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
Pace v. Asher, 126 S.W. 366, 137 Ky. 708, 1910 Ky. LEXIS 615 (Ky. Ct. App. 1910).

Opinion

Opinion op the Court by

Judge Settle

— Reversing.

The appellee, T. J. Asher, by his petition in equity filed in the court below, alleged, his ownership by purchase from the Cumberland Yalley Land Company of the poplar, ash, and cucumber timber of certain dimensions standing upon a tract of land particularly described in the petition, charged that the appellant, Calvin Pace, was without right claiming, cutting, and removing the timber in question, and asked an injunction restraining him from further [709]*709cutting or removing same. The land upon which the timber stood is covered by a patent, purporting to contain 120 acres, issued by the commonwealth of Kentucky, December 30, 1885, to Carr Middleton, who sold and conveyed the land to the Cumberland Yalley Land Company. Appellant by answer- denied appellee’s title to the timber in controversy, and alleged title thereto in himself, and to the land upon which it stands, under a patent embracing a 200-acre grant, issued by the commonwealth November 17, 3844, to Wm. Thomas, who sold and conveyed the land to his son, Joseph Thomas, by whom it was sold and conveyed to appellant more than 40 ye.ars ago. By an amended answer appellant set out a specific boundary embracing that portion of the Thomas 200-acre patent claimed to lap on the Middleton 3 20-acre-patent.

When appellee instituted the action he obtained a temporary restraining order as prayed in the petition, by which appellant was prevented from further cutting or removing the timber; but, after thus tying appellant’s hands, appellee himself continued the work of cutting and removing it until appellant instituted in the same court an action setting up his alleged ownership of the land and timber, and obtained therein a temporary restraining order preventing any further appropriation of the timber by appellee. In the latter action appellee filed an answer, denying appellant’s title and alleging his ownership of the timber as charged in the petition of the action previously brought by him. The actions were consolidated and heard together, and a judgment rendered declaring appellee the owner of the timber and perpetually restraining appellant from interfering with his right to cut and remove same. From that judgment this appeal is prosecuted.

[710]*710There is no controversy as to the proper location of the Middleton patent; but the location of the Thomas patent is in dispute. It is appellant’s contention that the Thomas patent includes three-fourths of the land embraced in the Middleton patent, and 61 poplar, ash, and cucumber trees claimed by appellee. As the Thomas patent is the elder of the two patents, if its true location is as claimed by appellant, the judgment of the circuit court should .have been in his favor. If, however, its true location is as claimed by appellee, the judgment was correct, and should not be disturbed.

The Thomas patent describes the land embraced therein as follows: “Lying and being in the county of Harlan, on Bill’s and Turner’s creeks, waters [tributaries] of Yocum creek, * * * beginning on a chestnut and two beeches in the edge of a flat; thence S. 26 degrees W., 30 poles, to a poplar; thence S., 46 poles, to a beech and hornbeam; thence S. 13 degrees W., 60 poles, to a beech and maple; thence S. 71 degrees E., 180 poles, to a white oak and black gum; thence N. 36 degrees E., 70 poles, to a beech and white oak; thence N., 200 poles, to a stake; thence S. 70 degrees W., 195 poles, to the beginning.”

We find in the record three maps of the land in controversy, but because of its greater elaborateness of detail we hereby adopt, and make a part of the opinion, the map of Gr. A. Eversole:

[711]

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Related

Bennett Jellico Coal Co. v. East Jellico Coal Co.
154 S.W. 922 (Court of Appeals of Kentucky, 1913)

Cite This Page — Counsel Stack

Bluebook (online)
126 S.W. 366, 137 Ky. 708, 1910 Ky. LEXIS 615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pace-v-asher-kyctapp-1910.