Combs v. Valentine

• Court: Kentucky Court of Appeals
• Writing for the Court: MILLER, J.
• Citation: Combs v. Valentine, 144 Ky. 184, 137 S.W. 1080 (Ky. Ct. App. 1911)
• Decision Date: 09 June 1911
• Parties: COMBS et al. v. VALENTINE et al.

137 S.W. 1080

144 Ky. 184

COMBS et al. v. VALENTINE et al.

Court of Appeals of Kentucky.

June 9, 1911

Appeal from Circuit Court, Leslie County.

Action by G. B. Combs and others against William Valentine and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

T. G Lewis and J. M. Bicknell, for appellants.

Cleon K. Calvert, for appellees.

MILLER J.

The appellants, claiming to be the owners and in possession of a tract of 250 acres of land in Leslie county, on the Coal branch of the Middle fork of the Kentucky river, known as the John Eversole patent No. 7,315, brought this action against appellees to restrain them from trespassing thereon. The petition alleges that appellees had cut down 17 valuable white oak trees, and sawed them into logs, and would continue to commit further trespasses unless they were enjoined from doing so. The decision of the case depends entirely upon the location of a boundary line of the patent with respect to the timber which appellees have cut. If the last two lines of the survey are run and located in accordance with the contention of appellants, the boundary incloses the cut timber; but, if they be run according to the contention of the appellees, the boundary does not include the timber. The circuit judge adopted the contention of the appellees and dismissed the petition, and from that judgment the plaintiffs appeal.

The boundary reads as follows: "Beginning at the head of the Robert Bowling branch, where the road crosses the mountain to the Coal branch at a beech, dogwood, and sourwood; thence with the meanders on the top of the ridge to a chestnut oak a corner of one thousand acres survey made in the name of Justus Bowling; thence a straight line to a black oak, being a corner to said Eversole tract, N. 9~ E. 92 poles, to a stake; thence N. 47~ E. 4 poles, to a walnut; thence N. 67~ E. 36 poles, to a poplar; thence N. 46~ E. 66 poles, to a poplar and hickory; thence S. 85~ E. 38 poles, to a black gum; thence N. 42~>> E. 36 poles, to two poplars; thence S. 5~ E. 74 poles, to a beech and maple; thence S. 14~ W. 34 poles, to a chestnut; thence S. 40~ E., to the top of the ridge between the Coal branch and John Langdon branch, to a conditional line between W. E. Bowling and John Langdon, running with the line on the top of the ridge to where the line of the said Eversole survey crosses the ridge; thence S. 45~ E., to the company's line, being the same tract George Bailey sold; thence, running with the Eversole survey, crossing the ridge; thence S. 45~ W., to the said company's line, being the same tract that George Bailey sold; thence, running with the company's line, to where the Eversole patent crosses; thence N. 40~ W., to a chestnut oak corner; thence S. 100 poles to said company's line, running with the company's line to a poplar; thence to a chestnut oak, so as to include all the lands W. E. Bowling owns between said poplar and oak; thence to the top of the knob between Camp branch and Coal branch; thence with the meanders of the ridge to the beginning, containing 250 acres."

The following plat of the foregoing boundary shows the courses of the survey and the respective contentions of the parties:

(Image Omitted)

Appellees contend that the lines beginning at the fourteenth call should run to the upper 15 (within the circle), thence southwardly to 16, thence to 17, and thence to the beginning; while appellants contend that the line should run from 14 to the lower 15 corner, and thence by the dotted lines to 16, 17, and to where it ends at the star near the Chestnut Gap fork, without closing the survey. The several small cross marks indicate the location of the trees that appellees have cut. There are three corners to the Eversole survey that are known and agreed upon by all of the parties to this action. These corners are the first or beginning corner, the eleventh corner, and the twelfth corner. The problem for decision consists, according to appellants' contention, in locating the fifteenth corner, which is called the lost corner; while the appellees state the question somewhat differently, by saying that the problem here is to properly close the survey. From the beginning corner of this survey to the twelfth corner there is no controversy. The controversy arises over the method of running out the survey from the twelfth corner to the beginning. If the survey be run from the twelfth corner to the beginning on the courses called for in the patent, and giving each line its distance, the survey will not close, but the courses and distances will carry the lines of the patent to the lower figure 17, and from thence along the dotted lines to the star near the head of the Chestnut Gap fork.

As we understand the appellants, they contend that the patent should be run to the seventeenth corner according to the calls and distances of the patent, and should then run to the beginning, entirely disregarding the bearing and distance of the seventeenth or closing line; or, if this be not right then the proper way to locate this survey is to run from the twelfth corner according to the courses and distances called for by the patent to the seventeenth corner, and then, by reversing the last line, close the survey by extending the last two calls to their intersection at K. This method would throw the disputed territory within appellants' boundary. On the other hand, the appellees maintain that the correct way of locating this survey and establishing the lost corner is to run the eleventh, twelfth, thirteenth, and fourteenth lines thereof according to the courses called for by the patent, giving to each its full distance, and then go to the beginning corner and reverse the seventeenth, sixteenth, and fifteenth calls in their bearings, giving to each its correct bearing and full distance. Following this method it is apparent that the survey will not close, since the distance of the fourteenth line carries it only to the lower 15 in that line, and the distance of the fifteenth line reversed carries it only to the circle at the point S in that line;...