Helton, et al. v. Central Trust & Safe Deposit Co., Pulaski, 1902

HELTON et al. v. CENTRAL TRUST & SAFE DEPOSIT CO.

COURT OF APPEALS OF KENTUCKY

69 S.W. 720; 1902 Ky. LEXIS 263; 24 Ky. L. Rptr. 628

September 23, 1902, Decided

PRIOR HISTORY:  [**1] Appeal from circuit court, Pulaski county.

Action by Central Trust & Safe Deposit Company against William Helton and J. M. Sloan to recover logs and to enjoin trespasses on land. Judgment for plaintiff, and defendants appeal.

DISPOSITION: Reversed.

COUNSEL: W. O. Bradley, for appellants.

O. H. Waddle, for appellee.

JUDGES: BURNAM, J.

OPINION BY: BURNAM

OPINION

 [*720]  BURNAM, J. This action was instituted by the appellee, the Central Trust & Safe Deposit Company, against the appellants, William Helton and J. M. Sloan, to recover certain logs alleged to have been cut from a tract of land patented to C Waite in 1849 upon a survey made in August, 1847, and under which they claim title, and to enjoin trespasses on the ground that defendants were insolvent. Appellee answered, averring that the 247 logs were cut on the Porter survey, an older one than that under which plaintiff claims. And the appellant Helton also says that he is the owner and in possession of 600 acres of land claimed by appellee by purchase from R. D. Powell, who resided upon the land, and had same inclosed, and claimed title thereto; that immediately after his purchase he took possession, and had continued to occupy it ever since, and pleads the statute of limitation as a bar to  [**2] plaintiff's claim. He further alleges that in 1869 there was surveyed and patented to him by the commonwealth 100 acres of land inside of the 600-acre boundary, which incloses his residence and improvements, and on which he has resided ever since the date of his patent, and now resides, and that his claim thereto has been notorious and adverse to all the world, and relies upon the statute of limitation as to the 100 acres covered by the patent. The plaintiff replied that none of the logs were cut on the Porter survey, but claimed that it was the owner of that survey; denies ownership of the 600 or title to the 100 acres covered by the patent of Helton. Appellant Helton, by amended answer, pleaded that the land embraced in the Waite patent had been given by the general assembly to Pulaski county, in 1835, for the purpose of constituting, when sold, a fund to improve the roads and bridges in that county, and had prescribed the manner in which they should be disposed of by the county; and alleges that Waite did not comply with these conditions in procuring his patent, and that it was, for that reason, void; that the patent was also void because its exterior lines embraced a large amount  [**3] of excluded lands, which were not specifically described therein. He also pleaded that the deed to appellee was champertous. Appellee traces its title to the land upon which the logs were cut in an unbroken chain to the patent issued to C. Waite in 1849, which is in the main uninclosed forest. It appears from the testimony of R. D. Powell that about 1855 he squatted upon this tract of land, and erected a house thereon, and inclosed and cultivated a small boundary around his dwelling. It appears that about 1,100 acres of this land was in the main surrounded by high mountains that had precipitous cliffs with occasional openings or depressions, and that appellee undertook to close these openings by cutting down trees, and building brush and log fences from cliff to cliff, which served to inclose a few head of cattle during the summer, but which were usually burned up in the fall, and suffered to remain in this condition for long intervals of time. Powell admits that he had no paper title to the boundary occupied by him, and that his occupancy was for the purpose of ripening a title to the land by possession. In 1864 he sold his possession and alleged rights to the appellant Helton, who  [**4] took possession, and apparently held and used it in the same way. The testimony is conclusive that a large boundary of the land was never inclosed, except for short periods, and for temporary purposes. In 1869 Helton obtained a patent for 100 acres of the land, acquired from Powell, which included his residence and the land which he inclosed for purposes of cultivation, which he continued to occupy continuously until the institution of this suit, claiming under his patent. It was adjudged by the trial court that the appellee recover of the appellants, Helton and Sloan, the logs sued for, and it was adjudged to be the owner of the entire tract of land set up and described in its petition, which included not only the boundary of 1,100 acres claimed by Helton, but also the 100 acres covered by his patent; and to reverse that judgment this appeal is prosecuted.

Nearly all the points relied on for reversal by appellee have been elaborately considered by the court in the recent cases of Lumber Co. v. Strong, 51 S. W. 189; Uhl v. Reynolds, 64 S. W. 498; and in Kid v. Deposit Co., 65 S. W. 355. The validity of the Waite patent, under which appellee claims, was  [*721]  passed upon, the same defenses  [**5] being made as are relied upon in this proceeding, and was decided adversely to the contention here made, the patent being held valid. It is therefore unnecessary that we should consider these questions. We are of the opinion that the lower court properly adjudged that appellee recover of the appellants the logs sued for, and that they were the owner of the lands covered by the exterior lines of the Cyrenius Walte 8,000-acre grant not excluded therefrom by prior grants as against the defendants, except as to the tract of 100 acres covered by the patent issued to the appellant Helton in 1869. As to this tract of land, the testimony warrants the conclusion that the possession of appellant Helton has been notorious and adverse for more than the statutory period, and his plea of limitation should have been upheld.

For reason indicated, the judgment is reversed in so far as it adjudged plaintiff to be the owner of the 100 acres covered by the patent issued to the appellant Helton in 1869.