Ball Creek Coal Co. v. Napier

• Decision Date: 14 February 1947
• Citation: 202 S.W.2d 728,305 Ky. 308
• Parties: BALL CREEK COAL CO. et al. v. NAPIER.
• Court: Kentucky Court of Appeals

202 S.W.2d 728

305 Ky. 308

BALL CREEK COAL CO. et al. v. NAPIER.

Court of Appeals of Kentucky

February 14, 1947

As Extended on Denial of Rehearing June 20, 1947.

Appeal from Circuit Court, Perry County; S. M. Ward, Judge.

Action of trespass by Addie C. Napier against the Ball Creek Coal Company and others, wherein the plaintiff prayed for an injunction and damages. Judgment for plaintiff and the defendants appeal.

Judgment reversed.

T. E. Moore, Jr., of Hazard, and L. E. Harvie, of Whitesburg, for appellants.

Napier & Napier, of Hazard, for appellee.

STANLEY Commissioner.

The question is the location of a boundary line described in a deed. The competency of parol evidence as to where it was intended to be is also in issue.

Two small creeks, Big Fork and Twin Fork (also called Pleasant Fork), meet to form Lick Branch of Ball Fork of Troublesome Creek, in Perry County. Big Fork flows almost due west. Twin or Pleasant Fork flows almost due south, and joins the other at right angles. The combined stream continues westwardly and is known as Lick Branch. M. S. Napier owner land on both sides of both creeks. On October 23, 1903, he conveyed to J J. C. Mayo 320 acres on the east side of Twin or Pleasant Fork and the north side of Big Fork, the location being described as on Lick Branch. The deed calls for many courses and distances.

On December 20, 1903, Mayo conveyed this tract, with others, to one Pardee. The description is the same. On March 4, 1943 Pardee's estate executed a coal lease, or the equivalent to one Degen, who formed the appellant coal company and transferred the lease to it. In the belief that the property was bordered on the south by Big Fork of Lick Branch, the company erected some of its mining structures and a roadway close to the bank of the stream.

After M. S. Napier died intestate, sometime after his conveyance to Mayo, his son C. W. Napier, received deeds from his brothers and sisters of their undivided interests in his real estate, 'said land being on Lick Branch of Ball Fork of Troublesome Creek, in Perry County.' Some of the deeds merely conveyed all the grantors' interest in their father's entire estate. On November 13, 1911, C. W. Napier made a deed to his brother, P. C. Napier, of land south of the creek, his deed calling for the meanders of Lick Branch as the northern boundary. P. C. Napier made a deed, with the same description, back to C. W. Napier and his wife, Addie Napier, the appellee herein. They mortgaged the land to a bank on November 10, 1920, with similar boundary lines. Eventually it was conveyed by the Master Commissioner of the court to K. N. Salyers. Thus, it is established that the north boundary of the tract south of the property involved extended to the meanders of the creek. We are concerned with the location of the south boundary of the tract north of the creek. The question is whether the property now owned by the appellant coal company also follows the meanders of the creek, or whether there was an irregular strip left between it and the creek, which is now claimed by the appellees.

The appellee, Addie C. Napier, received a conveyance from her husband, C. W. Napier, one of the sons of the original owner, M. S. Napier, dated December 2, 1919 (which was not placed of record until August 21, 1943), of a strip of land varying in width from 10 or 15 feet to 150 feet at one point. The lines are given as being the south line of the Napier-to-Mayo deed and the meanders of Big Fork of Lick Branch. The north line (the south line in appellant's deed) runs through some of the mining structures, and the claimed strip of land quite effectually shuts off the mining operations from ingress and egress from and to the highway over which the company's coal must be hauled to a railroad. The production has been about 400 tons a day.

This action for trespass was brought by Addie C. Napier, who prayed for an injunction and damages. The court granted her the relief prayed for by locating the division line as she contended, and permanently enjoining the defendant from trespassing upon the strip of land. The matter of damages was not mentioned in the judgment.

The beginning and ending lines in the deed from Napier to Mayo and subsequent conveyances to the coal company are thus given in the deed from Napier to Mayo: 'Beginning at a stake at the mouth of Twin Lick Fork of said Lick Branch; thence running up the big fork of said Lick Branch S 68 1/2 E 15-6/10 poles S 47 E 12 poles N 73-3/4 E 12 poles; S 63 E 10-5/10 poles, S 71-3/4 E 17-2/10 poles, N 54 1/2 E 12 poles; S 84 1/2 E 8-8/10 poles S 28 1/4 E 8 poles to a stake 12 feet left of a buckeye N 60 1/4 E 18-6/10 poles N 80 1/4 E 13-3/10 poles S 24 1/4 E 9-2/10 poles to a rock N 89 1/2 E 15-8/10 poles N 44 E 8 poles N 84 E 22-6/10 poles to a stake 8 feet to a spruce pine; thence S 88 E 12-4/10 poles to a stake 4 feet left of a spruce pine on a cliff on the south side of the branch and corner to the lands of Mahala Fugate; thence running up the hill with the line of Mahala Fugate; * * * thence down the hill N 66 1/2 W 38 poles to three forked spruce pines below a splash dam S 23-3/4 W 8-7/10 poles S 7 W 14-4/10 poles S 3 1/4 E 22-2/10 poles to a stake in the branch; thence down same S 23-3/4 E 14-3/10 poles, S 7 1/2 E 20-1/10 poles to the beginning, containing 320 acres more or less.'

In accordance with plaintiff's claim, her surveyor began at a point shown to him by her neighbors and kinsmen as the beginning point of the line. He describes it as being 'at the foot of the hill just as the bank starts to slope up on the upper side of the path.' The point is two feet from a buckeye tree and 80 feet northeasterly from the mouth of Twin Fork Creek. The surveyor ran his line up Big Fork as called for in the Mayo deed to a pine tree identified as the 'corner to the lands of Mahala Fugate' called for in the deed. Reversing the calls for a test he, of course arrived back at his beginning point. However, in going both ways the surveyor ignored the second and third calls, namely, 'S 47 E 12 poles; N 73-3/4 E 12 poles,' and cut straight across the angles thus formed, the point being down close to the creek (thus forming the widest part of the strip claimed). The court agreed with the plaintiff and her surveyor that since the pine tree at the Fugate corner was a definite and accepted monument, the proper way of locating the beginning of the line was by the reverse calls. The surveyor did not run the closing line of the description, as copied above, from 'three forked spruce pines below a splash dam.' His reason was that there was no splash dam near that place and the pines were in a grove and none of them had been marked. This, of course, would have been the same kind of test to locate the beginning corner that was...