Wishart v. Cosby

8 Ky. 382, 1 A.K. Marsh. 382, 1818 Ky. LEXIS 162

• Court: Court of Appeals of Kentucky
• Decided: November 28, 1818
• Status: Published

Opinion

Judge Owsley

delivered the opinion of the court.

This is an appeal from a judgment rendered in favor of Cosbv, in an action of ejectment, brought by him in the court below, against Wishart.

The main contest between the parties, relates to the boundary of Cosby’s claim, and involves an inquiry into the decision of that court, in giving instructions to the jury. . '

. After the evidence was gone through, the jury were instructed, that if they believed, from the evidence, that the cast and south west corners of Cosby’s patent claim were established, that the law would fix the north west corner at the intersection of the lines extended, according to the patent courses, from the north east and south west Corners, unless they should also be of opinion, from the evidence, that some other place had been marked and fixed on as the north west corner, although there never had been a north west corner made to the survey's

survey was made,; if ^partofaime marked, such ’ilJe >s vo bo bcuhdary a* far as i is ^ c,;,lrse 0f the paunt is <o ’’vp'1; vyd io vde Vance is. ae'*‘ B, Hardin for appellant, Wicklijfe for appellee.

Assuming no north west corner ever to have been made, and no evidence to have been introduced conducing to shew the lines, either from the north east corner or the south west corner, to have been run at the making of the original survey, there could not be a doubt, from the repeated decisions of this court, but that the intersection of lines from the north east corner and the south west should form the north western boundary of Cosby’s claim,

But as the making of a corner is no greater validity in fixing the boundary of a survey thar the marking of its fines, it is plain that the court, in giving the instructions, ought not to have withdrawn from the jury the consideration of the evidence in relation to the lines of the survey, but should^ moreover, have hypothecated their instructions as to the patent courses of the lines fixing the north west corner, upon the further opinion of the jury on the evidence in relation to the marking and identity, of the lines of the original survey; and should have informed the jury, that if they were of opinion, from the evidence, that the lines, or any part thereof, from the north east and south west ners, were extended variant from the patent course, that so far as those lines Were, in their opinion, shewn to have been -made, they must give boundary to the claim, and if they were of opinion those lines were not extended to the intersection, that the patent corners from the points where they are shewn to have existed, should be extended, so as by their lntersection, to torra the north western corner.

The judgment of the court below must, therefore, be rc-Versed with cost, the cause remanded to that court, aod further proceedings had not inconsistent with this Opinion.