Ashcraft v. Courtney
| Citation | 121 S.W. 625 |
| Parties | ASHCRAFT et al. v. COURTNEY et al. |
| Decision Date | 08 October 1909 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Lee County.
"Not to be officially reported."
Action by Herbert Ashcraft and others against M. H. Courtney and others. Judgment for defendants, and plaintiffs appeal. Affirmed.
For former appeal, see 105 S.W. 106, 31 Ky. Law Rep. 1324.
J. B White and Hazelrigg & Hazelrigg, for appellants.
H. L Wheeler, for appellees.
Herbert Ashcraft, etc., brought this action against M. H. Courtney etc., to recover the value of certain timber cut from a tract of 498 acres of land, which the plaintiffs alleged they owned. It was alleged in the petition that the plaintiffs derived title to the land under the John Carnan 29,873-acre patent through Thomas Duckham; that the defendants claimed the same right and title, but had, in fact, no valid title. It was also alleged in the petition that the plaintiffs and those under whom they claimed had been in the adverse possession of the land for over 30 years. The defendants answered, setting up title in them to the land under the John Carnan patent. A trial was had which resulted in a verdict and judgment in favor of the plaintiffs for the sum of $2,500. An appeal was taken by the defendants to this court and on the appeal it was held by this court that the plaintiffs did not connect themselves with the John Carnan patent; also, that the defendants had title under the John Carnan patent. It was further held that the evidence did not show adverse possession of the land by the plaintiffs or those under whom they claimed. The judgment was reversed, and the cause remanded for a new trial. See Courtney v. Ashcraft, 105 S.W. 106, 31 Ky. Law Rep. 1324. On the return of the case to the circuit court, the plaintiffs filed an amended petition, in which they charged, in substance, that they had by mistake alleged that the land lay within the John Carnan patent, and that the fact is that that patent does not include the 498 acres in dispute. Issue was taken upon this pleading, and, the case having been again submitted to a jury, the court at the conclusion of all the evidence instructed the jury peremptorily to find for the defendants, and, the plaintiffs' petition having been dismissed, they appeal.
The plaintiffs introduced some proof on the trial to the effect that the 498 acres in controversy are not within the John Carnan patent. This would show that the defendants do not own the land; but it does not establish in any way the plaintiffs' right to it. The plaintiffs sue the defendants for trespass upon the land. They cannot recover upon the weakness of the defendants' title. If they recover, they must recover upon their own title. The reason for this rule is plain. Only the owners of the land can complain of the timber being cut; and, if the defendants were held liable to the plaintiffs, when the plaintiffs are not the owners of the land, they would still be liable to the true owners, and the plaintiffs would have recovered money to which they had no right. In order to recover...
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Bruch v. Benedict
...is fatal to the claim of title. Collins v. Flynn, 160 S.W. 496; Barr v. Potter, 57 S.W. 478; Logan v. Williams, 167 S.W. 124; Ashcroft v. Courtney, 121 S.W. 625; Hall v. Hall, 200 S.W. 611; Owsley v. Owsley, S.W. 397. When the premises are abandoned in the adverse claimant before the expira......
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Asher v. Gibson
...is begun, in which case the prior holding before the break may not be tacked onto the subsequent one to complete the period. Ashcraft v. Courtney (Ky.) 121 S.W. 625, and not elsewhere reported; Young v. Pace, 145 405, 140 S.W. 555; Whitley County Land Co. v. Powers, 146 Ky. 801, 144 S.W. 2;......
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Fugate v. Martin
...years, and, if the possession is broken, it must be counted from the break and not from the commencement of the possession. Ashcraft v. Courtney (Ky.) 121 S.W. 625. Any break in the possession destroys all possession previously held. Sparks v. Jackson, 142 Ky. 17, 133 S.W. 959. It is not re......
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H. F. Davis & Co. v. Sizemore
...plaintiffs can recover only on the strength of their own title and not on the weakness of the defendant's title. Ashcraft v. Courtney, 121 S. W. 625. Their claim to title is based solely on adverse possession. To establish title by adverse possession, the evidence must show that the possess......