Robinson v. Wells

• Decision Date: 16 March 1911
• Citation: 135 S.W. 317,142 Ky. 800
• Parties: ROBINSON et al. v. WELLS et al.
• Court: Kentucky Court of Appeals

135 S.W. 317

142 Ky. 800

ROBINSON et al. v. WELLS et al.

Court of Appeals of Kentucky.

March 16, 1911

Appeal from Circuit Court, Robertson County.

Action by Annie Wells and others against Frank Robinson and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded for judgment as directed.

Robert Buckler and John P. McCartney, for appellants.

Holmes & Ross and Samuel Throckmorton, for appellees.

CLAY C.

On July 23, 1907, Annie Wells, Lena Wells, Luther Wells, and others claiming to be the joint owners of a certain tract of land in Robertson county, Ky. and lying on the waters of Johnson fork of Licking river, a nonavigable stream, instituted an action against Frank Robinson and Sarah J. Robinson, his mother, to restrain them from destroying and defacing their landmarks and monuments on the western boundary of plaintiff's land, and from constructing fences on the east bank of Johnson fork, and from otherwise trespassing upon the land. A similar suit was filed by Annie Wells against the same defendants to enjoin them from wrongfully and unlawfully entering upon the lands which she owned in her individual right. A similar suit was also filed by Elizabeth Wells against the same defendants and praying for similar relief. The defendants answered and denied the allegations of each petition. Thereafter plaintiffs filed their amended petitions in equity, wherein they asserted title to the land in controversy by adverse possession. Subsequently all three of these actions were consolidated and docketed under the name of Annie Wells, etc., v. Frank Robinson, etc. Thereafter the defendants filed an amended answer and counterclaim, wherein they pleaded ownership of the land by title of record and also by adverse possession. They also pleaded that plaintiffs claimed title through Uriah Wells, who had accepted a certain stone on the east bank of Johnson fork as the corner in making surveys of his and defendants' land, and that the line claimed by defendants to be the dividing line between him and plaintiffs had always been recognized by plaintiffs and those through whom they claimed as the dividing line. Upon submission of the case, the chancellor granted the relief prayed for by plaintiffs and adjudged that each of them, with respect to the particular land which she owned had title to the bed of Johnson fork of Licking river to the thread of the stream for the full length of the western boundary of her particular land. From this judgment the defendants have appealed.

While both plaintiffs and defendants asserted title by adverse possession, it is manifest that neither had such possession as would ripen into title. Each claimed to the division line and the whole case depends upon where that line is located. Both plaintiffs and defendants have shown title from the commonwealth, and also from a common grantor. For the purpose of determining where the division line is located, resort must be had to the record titles, which are exhibited in the record.

The tracts of land owned by plaintiffs and defendants are embraced in a patent for 4,045 acres issued by the commonwealth of Kentucky to Robert Johnson. Robert Johnson conveyed the lands owned by plaintiffs and defendants to David Irwin on August 29, 1805, by deed of record. David Irwin conveyed to David Gray and John Allison on December 30, 1805, by deed of record. David Gray conveyed to John Allison his undivided one-half interest in said land on August 25, 1806, by deed of record. John Allison conveyed the land now belonging to defendants to John Dea on December 13, 1806, by deed of record, and Dea, in turn, conveyed to John Throckmorton by deed of record dated January 23, 1807. By a regular chain of conveyances from Throckmorton, defendants acquired title to their tract of land. Subsequently, on August 29, 1808, Johnson conveyed the lands now belonging to plaintiffs to Aaron Wells by deed of record. Aaron Wells' heirs conveyed to Uriah Wells by deed dated March 27, 1848. From this point on it is unnecessary to set forth plaintiffs' title.

The description both in the deed from John Allison to John Dea of date December 13, 1806, and the deed from John Dea to John Throckmorton, of date January 22, 1807, through whom the defendants derive title, is as follows: "Beginning at a white oak on a ridge standing near a large forked white oak and in the western boundary line of the said Robert Johnson tract; thence east forty poles to two gums and a hickory in Lawrence Harrison's line; thence with the same south forty-five east ninety poles to two beeches on the east bank of Johnson Fork and a corner to Aaron Wells; thence down Johnson Fork on the east side thereon and binding thereon with its different meanders two hundred poles when reduced to a straight line to a sycamore and elm another corner of the said Wells, and in the Southern boundary line of the said Robert Johnson tract; thence on a line of the same west twenty poles to three...