October 1, 2012

Mahoning Coal Co. v. Dowling, et al., Pulaski, 1910

MAHONING COAL CO. v. DOWLING et al.

COURT OF APPEALS OF KENTUCKY

124 S.W. 370; 1910 Ky. LEXIS 778

January 21, 1910, Decided

PRIOR HISTORY:  [**1] Appeal from Circuit Court, Pulaski County. Action by Ed Dowling and others against the Mahoning Coal Company. From a verdict for plaintiffs, defendant appeals.

DISPOSITION: Affirmed.

COUNSEL: Denton & Wallace, for appellant.

O. H. Waddle & Son, for appellees.

JUDGES: CARROLL, J.

OPINION BY: CARROLL

OPINION
 [*371]  CARROLL, J. This action was instituted in the Pulaski circuit court by appellees against the appellant to recover possession of a tract of land containing 150 acres, and upon the conclusion of all the evidence the court instructed the jury to return a verdict in favor of the appellee. So that the only question now before us is the correctness of the ruling of the court upon the evidence.

The facts are substantially these: Prior to 1881 a patent issued to Stewart & Porter for a large tract of land in Pulaski county. This patent did not describe the senior patents, of which there were several, within its exterior boundary. Some time before the date mentioned, John Garey, one of the appellees, and J. W. F. Parker and Joe C. Parker, became the owners of this Stewart & Porter survey; Garey being the owner of one-third thereof and the Parkers two-thirds. In August, 1881, the Parkers for a valuable consideration conveyed to Garey all their right,  [**2] title, and interest in the Stewart & Porter land. The deed conveying the land did not reserve to the Parkers any part or interest in it. The appellees are the vendees of Garey, and the appellant is the vendee of the Parkers. The contention is made on behalf of the appellant that, although no interest was reserved in the conveyance mentioned, yet at the time it was made it was understood and agreed between the parties that 150 acres included in the Stewart & Porter patent which had been surveyed in the name of M. E. Parker was reserved and did not pass by the conveyance. This 150 acres is the land in controversy. The record presents two issues: First, whether or not this 150-acre survey was reserved; and, second, did the Parkers and their vendee, the appellant company, have the adverse possession of it for more than 15 years before this suit was instituted by appellees for its recovery?

It seems that in March, 1881, the decision of this court in the case of Hamilton v. Fugett, 81 Ky. 366, involved in great doubt and uncertainty the validity of patents that did not describe excluded senior patents, and the effect of this decision was known to the Parkers and Garey at the time the conveyance  [**3] was made. The Parkers contend that being apprehensive the Stewart & Porter patent was void, and for the purpose of avoiding its effect, they had procured several persons to survey for their benefit boundaries of land within this Stewart & Porter patent with the intention of holding the land under these surveys in the event that the Stewart & Porter patent should be held invalid. And that, with this purpose in view, there was surveyed at their instance to M. E. Parker in June, 1881, a boundary containing 150 acres, being the same in controversy, and that afterwards in 1884 a patent for this survey was issued to M. E. Parker. It is their further insistence that it was understood and agreed between themselves and Garey at the time they made the deed to him that this M. E. Parker survey was excepted from the conveyance of their interest, and that they retained the ownership and possession of it, and that this survey passed a title to M. E. Parker superior to the Stewart & Porter patent. The evidence, however, upon the point that it was agreed and understood between the parties that this M. E. Parker survey was excepted from the conveyance, is not in our opinion sufficient to overcome the  [**4] deed in which there is no exemption whatever. This deed, signed and acknowledged by the Parkers, conveyed to Garey without any reservation all the interest that they had in the Stewart & Porter survey. And as the M. E. Parker survey was made for the benefit of J. C. Parker, one of the grantors in the Garey deed, he owned whatever M. E. Parker might have by virtue of it, and it passed by the deed to Garey. The evidence necessary to correct a mistake in a deed or to establish a right inconsistent with its provisions must be clear and convincing. If this rule did not obtain, deeds would be of little value. We have carefully read the evidence upon this issue, and in our opinion the court did not err in ruling that the evidence was insufficient to sustain the contention that this M. E. Parker survey was reserved at the time the conveyance was made.

The next question is: Was there sufficient evidence on behalf of appellant to take the  [*372]  case to the jury upon the plea of adverse possession? The land in controversy is divided into two unequal parts by the Southern Railway. On the east side of this railway there is about four acres, and on the west side of it the remainder of the tract is located.  [**5] The four acres on the east side was conveyed by Garey to a man named Wood soon after Garey purchased it, and on this four-acre tract there has at all times been one or more houses actually occupied by Wood and other persons, and it is now owned by the Parkers by virtue of a deed made to them by Wood. So that this four acres is not involved in this controversy, and was excepted by the court in the judgment giving to Garey the remainder of the land. The boundary on the west side of the railway, until within the last few years, was open, uninclosed mountain land. No part of it was ever in cultivation, and, with the exception of a cabin in one corner of it which was occupied for a few years by some persons who worked on adjacent land, it has never been in the actual occupancy of any person. There is some evidence that the Parkers paid the taxes on the land, and that some small timber for mine props was occasionally cut from it, and tan bark gotten off of it. In our opinion the evidence is wholly insufficient to invest the appellant with a title to the land by adverse possession. As frequently decided by this court, it is essential, in order to sustain a plea of adverse possession, that  [**6] the adverse holding must be open, continuous, notorious, and to a well-defined boundary, and that the mere payment of taxes is not of itself sufficient to support this defense. Interstate Investment Co. v. Bailey, 98 S. W. 578, 29 Ky. Law Rep. 468; Overton v. Overton, 123 Ky. 311, 96 S. W. 469, 29 Ky. Law Rep. 736. Measured by this rule, the proof fails to show a continuous or notorious holding, or a holding to a well-defined boundary. The occasional cutting of small timber, and the fact that for a few years there was a house on the corner of the land in a remote place occupied by a tenant, falls far short of measuring up to the standard of adverse possession.

The argument is further made that the title of appellees is not sufficient to uphold the judgment in their favor. Counsel for appellant in making this point evidently overlooked the following agreement in the record: "The parties here agree that the deeds evidencing plaintiffs' (appellees') title need not be introduced; it thereupon being agreed between them for the purposes of this trial that the plaintiffs (appellees) had a regular derivation of title of record from the commonwealth of Kentucky to them for the lands granted  [**7] by the Stewart & Porter patent above copied."

Wherefore the judgment of the lower court is affirmed.

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