Caughlin v. Wilson

• Decision Date: 24 November 1915
• Citation: 167 Ky. 35,180 S.W. 40
• Parties: CAUGHLIN v. WILSON.
• Court: Kentucky Court of Appeals

180 S.W. 40

167 Ky. 35

CAUGHLIN v. WILSON.

Court of Appeals of Kentucky.

November 24, 1915

Appeal from Circuit Court, Carlisle County.

Action by T. J. Wilson against W. C. Caughlin. From a judgment for plaintiff, defendant appeals. Affirmed in part, and reversed in part.

Jesse F. Nichols, of Bardwell, and Hendrick & Nichols, of Paducah for appellant.

John E Kane, of Bardwell, and Gus Thomas, of Mayfield, for appellee.

HURT J.

By this action in ejectment, the appellee, Wilson, sought to recover the possession from the appellant, Caughlin, of two tracts of land, which adjoin each other, one of which consists of 200 acres and the other 66 1/2 acres. The two tracts of land are described by metes and bounds in the petition. The appellant traversed the allegations of ownership and wrongful possession alleged in the petition, and, in addition thereto claimed that he and those under whom he claimed title had been in the adverse possession of the two tracts of land for more than 15 years before the filing of the petition and relied upon the 15-year statute of limitations provided in such cases. He also alleged that he and those under whom he claimed had been in the actual occupancy of the lands for more than 7 years before the bringing of the suit and claiming under record title deducible from the commonwealth of Kentucky to him, and relied upon the 7-year statute of limitations provided for in section 2513, Ky. Statutes. As a further defense, he pleaded that, at the time the appellee acquired the title under which he claimed the lands, they were then in the adverse possession of his vendor, and for such reason the purchase and conveyance under which appellee claimed were void. The affirmative allegations in the answer were controverted by reply, and upon the issues thus formed the case went to trial before the court and a jury in the Carlisle circuit court. The jury returned a verdict, under the evidence and the instructions of the court, in favor of appellee, and the court thereupon rendered a judgment adjudging that appellee was the owner of the lands in controversy and entitled to their possession and awarding a writ of possession in his favor for them. The appellant filed grounds for a new trial and moved the court to set aside the verdict of the jury and judgment of the court, but his motion was overruled, and he appealed to this court.

It should be stated that, at the conclusion of all of the evidence, the appellant moved the court to peremptorily instruct the jury to find a verdict for him, but this motion the court overruled. The appellant also moved the court to direct the jury to return a verdict for him as to the 200-acre tract of land in controversy, but this motion was also overruled.

The appellant's grounds for a new trial embraced a number of things, but the appellant only insists upon two of its grounds for a reversal of the judgment, one of which is that the court erred to the prejudice of his substantial rights in instructions given by it to the jury, and the other is that there is no evidence to support the verdict of the jury.

The facts of the case, as developed by the proof, are about as follows: In 1837 a patent was granted to Price and H. L. Edrington for 237 1/2 acres of land, as it was described in the patent, the whole of island No. 3, in the Mississippi river, and in 1872 a patent was granted to William Parsons for two towheads in the river, one containing about 70 acres and the other 10 acres; the larger lying to the west of island No. 3 and the latter, south of island No. 3. While the calls in the patent, as regards the larger towheads, mentioned its metes and bounds by courses and distances, but the other description shows that the line really extended around to the water's edge of the towhead, and the same may be said with regard to the calls in the patent to the Edringtons in 1837. Since the granting of these patents, the river has, by imperceptible degrees, changed its course westward from island No. 3, and on the west side of island No. 3, and between the original bank of the island and the middle thread of the stream of the river, accretions have added to the island until it now extends possibly a mile and one-half to the westward of the original bank of the island. The lands in controversy are a portion of these accretions and are embraced between the lines from the northwest and southwest extremities of these two patents extended westward to the end of the accretions in the direction of the middle thread of the river. By mesne conveyances and by descent, the lands embraced in the patent to the Edringtons became the property of the appellee on the 31st day of January, 1898. By various mesne conveyances he acquired title to two towheads and the land granted to William Parsons in 1872, on the 25th day of November, 1899. He obtained the title to that portion of the land patented to the Edringtons, which he now claims, by deed to him from one Mathis, and the title to the two towheads and the land embraced in the patent to William Parsons by deed to him from Noah Parsons. One James Johnson, conceiving that the accretions formed to the western boundary of island No. 3 were vacant and unappropriated land, obtained a patent to the 66 1/2 acres in controversy on the 31st day of December, 1897, and a patent to the 200 acres in controversy under a survey made on the 9th day of November, 1899, and the patent issued in the year 1900. The appellant also claimed that one Woodrow had "squatted" upon the 66 1/2-acre tract of land and had some kind of an inferior dwelling house thereon previous to the time that Johnson caused it to be surveyed for a patent, and that Woodrow sold his claim of possession to Johnson on the 31st day of May, 1897, and executed a writing to him, by which Woodrow transferred his claim and possession to Johnson, and, about the same time, that Woodrow and one Jones marked a boundary around the 66 1/2 acres; that in 1898 the appellee became the tenant of Johnson upon the 66 1/2-acre tract of land, and continued in that way holding the possession for Johnson until the year 1903, when Johnson, by a deed, conveyed to him both of the tracts of land in controversy. Appellee claims that he lived upon the 66 1/2-acre tract of land from 1898 for three years thereafter, when he removed from it but kept the possession of it by tenants, who occupied the land until after the bringing of this suit.

At the close of the testimony, the court, upon its own motion, gave to the jury instructions Nos. 1, 2, 3, and 4, to which both the appellee and the appellant objected and saved exceptions. The appellee then offered instruction C, which the court gave over the objection of the appellant, and appellant then offered instructions X and Y, which the court refused, to which appellant excepted.

By instruction No. 1, the court directed the jury to find for the appellee all of the two tracts of land in controversy, unless it should believe from the evidence that the appellant and those under whom he claimed had had the land or some portion of it actually inclosed for a period of 15 years immediately preceding the filing of the suit and had had the land in actual, adverse, peaceable, exclusive, and notorious possession, claiming the same as their own against all persons for a period of 15 years or more preceding the filing of the suit, and that appellant and those under whom he claimed had claimed and held the land to a well defined and marked boundary, and, if appellant had held said tracts of land or any part of same with an actual inclosure thereon claiming to a well-marked line for a period of 15 years, then the law was for the appellant as to the land so occupied and claimed for said period.

Instruction No. 2 advised the jury that it was established in the evidence that on September 19, 1837, there had been granted by patents to Price and H. L. Edrington the lower end of island No. 3, then containing 237 1/2 acres, and that on June 5, 1872, there had been granted by patents to William Parsons the two towheads near the foot of island No. 3, one containing 70 acres and the other 10 acres, and that by subsequent conveyances the appellee had acquired a good title to the tracts of land and was the owner of the land, and that the jury would find for him the lands in controversy, unless it believed as set out in other instructions given in the case.

By instruction No. 3, the jury was directed that if it believed from the evidence that the appellant and those who and through whom he claimed had a connected title to the 66-acre tract of land deducible of record from the commonwealth of Kentucky, and had had actual occupancy of same by settlement thereon under such title for seven years before the commencement of the suit, and during said time had claimed same to a well-marked boundary, the jury would find for appellant as to the 60-acre tract.

By instruction No. 4, the jury was directed that if the appellant or those under whom he claimed title were in actual adverse possession of the 66-acre tract of land and occupied and had inclosed a part of same and were in possession claiming all of same to a well-marked boundary at the time the appellee purchased the land, the law was for the appellant as to the 66-acre tract, and the jury would find for him.

By instruction C, the court advised the jury that neither the appellant, nor Johnson, under whom he claimed, acquired title to the lands in controversy under the patents issued to Johnson on December 31, 1897, and in April, 1900, because both of the patents were null and void.

Instruction No. 2 and instruction No. 1, so far as it directed the jury to find for the appellee the lands in controversy, unless appellant had acquired title by adverse...