Arnett v. Elkhorn Coal Corporation

• Decision Date: 31 May 1921
• Citation: 231 S.W. 219,191 Ky. 706
• Parties: ARNETT v. ELKHORN COAL CORPORATION.
• Court: Kentucky Court of Appeals

231 S.W. 219

191 Ky. 706

ARNETT v. ELKHORN COAL CORPORATION.

Court of Appeals of Kentucky.

May 31, 1921

Appeal from Circuit Court, Magoffin County.

Suit to quiet title by Elbert Arnett against the Elkhorn Coal Corporation. Judgment for defendant on plaintiff's electing to stand on his petition after demurrer thereto was sustained, and plaintiff appeals. Affirmed.

Augustus Arnett, of Salyersville, for appellant.

E. W Pendleton, of Prestonsburg, A. W. Young, of Morehead, E. C O'Rear, of Frankfort, and W. G. Deering, of Louisville for appellee.

HURT C.J.

The appellant, as the plaintiff below, by his petition in equity against the appellee, as defendant, averred that he was the owner with a legal title thereto, and in the actual possession of a tract of land, which was described, in Magoffin county, and that he purchased the land from one Lewis Hoskins and wife, and came into its possession and ownership through a deed made by Hoskins and wife. He further averred that the defendant was setting up claim to ownership of the oils and gases in the land, and thereby casting a cloud upon his title to his injury and damage. He filed with his petition a deed from Lewis Hoskins and wife to the Northern Coal & Coke Company, dated September 11, 1903, which he averred was the basis of the defendant's claim of title. He prayed for a judgment, quieting his title to the land, and requiring the defendant to release all of its claims thereto, and for a recovery of damages against the defendant. The foregoing constituted all the averments of the petition, and the deed from Hoskins and wife to the Northern Coal & Coke Company was the only exhibit filed with or made a part of the petition.

The defendant interposed a general demurrer to the petition which was sustained, and the plaintiff electing to stand upon his petition, and declining to amend it, the court adjudged that it be dismissed, and from the judgment the plaintiff has appealed, and the only question before this court is whether the petition stated facts sufficient to constitute a cause of action in behalf of the plaintiff.

At the outset, it is proper to say that upon a demurrer to the sufficiency of the petition, the court is not authorized to look to or to consider anything except the allegations of the petition and the exhibits filed with and made a part of it. In the instant case there were exhibits on file as evidence, and otherwise, which were not any part of the petition and cannot be considered upon the question presented, although it seems that the trial court took into consideration these exhibits. If the plaintiff had been content to have averred that he was the owner of the land and in its actual possession, and that the defendant was wrongfully claiming to be the owner of the oil and gases therein, which were a portion of the land, and to have designated the nature of the defendant's claim as nearly as it was practical to do without describing its chain of title, but so as to show that the claim of ownership by defendant was hostile and adverse to his title, a sufficient cause of action would have been stated under section 11, Ky. Stats. Kincaid v. McGowan, 88 Ky. 91, 4 S.W. 802, 9 Ky. Law Rep. 987, 13 L. R. A. 289; Campbell v. Disney, 93 Ky. 41, 18 S.W. 1027, 13 Ky. Law Rep. 919; Whipple v. Earick, 93 Ky. 121, 19 S.W. 237, 14 Ky. Law Rep. 85; Magowan v. Branham, 95 Ky. 581, 26 S.W. 803, 16 Ky. Law Rep. 233; Williams v. Lowe, 175 Ky. 369, 194 S.W. 342; Brown v. Ward, 105 S.W. 964, 32 Ky. Law Rep. 261; Henderson v. Clark, 163 Ky. 192, 173 S.W. 367; Hall v. Pratt, 142 Ky. 561, 134 S.W. 900; Cumberland Co. v. Kelly, 156 Ky. 397, 160 S.W. 1077; Perry v. Eagle Coal Co., 170 Ky. 824, 186 S.W. 875.

The plaintiff, however, went further and averred how he became the owner of the land, which he did by purchasing it from Lewis Hoskins and wife, and accepting a deed of conveyance from them for the land, which he had caused to be recorded. He thereby averred that his source of title emanated from the deed made to him by Hoskins and wife, but he did not file with his petition the deed nor allege the date thereof. He also undertook to state the source of the defendant's claim of title, and filed with his petition, as a part of it a deed of conveyance from Lewis Hoskins and wife to the Northern Coal & Coke Company, which he alleged was the basis of defendant's claim to the oil and gases, and this deed shows that Hoskins and wife sold and conveyed the oil and gases...