Denney v. Abbott, et al.
COURT OF APPEALS OF KENTUCKY
163 Ky. 499; 173 S.W. 1159; 1915 Ky. LEXIS 258
March 11, 1915, Decided
PRIOR HISTORY: [***1] Appeal from Wayne Circuit Court.
DISPOSITION: Judgment affirmed.
COUNSEL: O. H. WADDLE & SONS, H. C. KENNEDY and DUNCAN & BELL for appellant.
JOE BERTRAM & SONS, O. B. BERTRAM and J. P. HARRISON for appellees.
JUDGES: WILLIAM ROGERS CLAY, COMMISSIONER.
OPINION BY: WILLIAM ROGERS CLAY
[*500] [**1159] OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER--Affirming on original and cross appeals.
About seventy-five years ago Thomas Hurt procured title to several tracts of land lying in Wayne County. These tracts were covered by patents issued in the early part of the nineteenth century. Thomas Hurt died and left surviving him fourteen children, to whom the title descended. Granville C. Keeton married one of Thomas Hurt's daughters, who owned an undivided one-fourteenth interest. About forty years ago, Keeton purchased the interests of nine of the other children. Thus he and his wife became the owners of ten-fourteenths. John Hurt, a son of Thomas, owned a one-fourteenth interest, and subsequently he and his wife purchased the interests of three of the other children. John Hurt died leaving surviving him his wife, Fannie Hurt, and several children. When the children of John Hurt became of [***2] age, a conditional line dividing their lands from those of Granville C. Keeton, was agreed upon. Joel Keeton, the father of Granville C. Keeton, owned a farm consisting of several tracts lying in the neighborhood of the Hurt lands. On his death his lands were partitioned among his heirs at law. That portion of Joel Keeton's land adjoining the Hurt lands was alloted to Granville. Granville also purchased two tracts of land from Irving Keeton, one containing fifty acres and the other seventy-five acres.
Granville Keeton died about six years ago, leaving a widow and four children. He devised all his property to his wife for life with remainder to the children.
James Denney, who married one of the daughters, purchased the interest of two of the daughters. The other one-fourth interest is now owned by Myrtle Hughes, William Keeton and Charles Keeton, the only children of Mary E. Keeton, deceased.
In the year 1911, H. M. Abbott, Jesse Patton and G. W. Morris obtained patents to two tracts of land, one for thirty-five acres and the other for sixty-five acres. These lands are surrounded, if not covered, by the patents owned by Denney and the three grandchildren.
Alleging that the two tracts [***3] patented by Abbott, Patton and Morris were not vacant lands, but were covered by the patents which he and the three grandchildren of Granville Keeton owned, and that they also had title [*501] thereto by adverse possession, plaintiff, J. H. Denney, brought this action to quiet his title. The infant grandchildren of Granville C. Keeton were made parties defendant. The question whether or not the two tracts were covered by patents belonging to the plaintiff and the infant defendants was submitted to a jury. The jury found that the thirty-five-acre tract was covered by prior patents, and that all of the sixty-five-acre tract was covered by prior patents except about thirty-one acres. The patents obtained by defendants were canceled to the extent that they were covered by prior patents, and plaintiff's title quieted to that extent. From the judgment so entered plaintiff appeals, and defendants prosecute a cross appeal.
The chief error relied on by plaintiff is that the court erred in failing to submit to the jury the question of his adverse possession. Plaintiff contends that though he had no actual possession of the tracts in controversy, his evidence was sufficient to show a well-defined [***4] and well-marked boundary including both the tracts in controversy. The location of the particular patents under which plaintiff claims is a matter of great uncertainty. Granville C. Keeton did not acquire title by one conveyance or patent, but by separate conveyances or patents. His residence was upon the Joel Keeton patent. He never entered upon the sixty-five-acre tract or enclosed or improved it in any manner. To the extent at least of the thirty-four acres adjudged defendants, Granville Keeton's patents were not contiguous. This tract was vacant and unappropriated. His entry on the patent to which he had title did not, therefore, extend his possession to a tract to which he had no title, and upon which he never made any entry, improvements or enclosure. Furthermore, the evidence fails to show any well defined or well marked boundary. King v. Eagle Coal Co., 144 Ky. 660, 139 S.W. 863; Arthur v. Humble, 140 Ky. 56, 130 S.W. 958; Whitley Co. Land Co. v. Powers's Heirs, 146 Ky. 801, 144 S.W. 2; Burt & Brabb Lumber Co. v. Sackett, 147 Ky. 232, 144 S.W. 34.
Defendants, on their cross appeal, insist [**1160] that the evidence is [***5] insufficient to show that the lands covered by their patents, or any part thereof, are covered by prior patents. The maps in the record are not very intelligible. Testifying from these maps, the surveyors would answer in the following manner: "That line runs from here to here" or "from there to there." This [*502] method of testifying is necessarily more intelligible to the jury than it is to us. The evidence as to the location of the prior patents is very conflicting, and after considering the question, with the aid of the maps and the testimony of the witnesses, we are unable to say that the verdict is flagrantly against the evidence.
Judgment affirmed on original and cross appeals.