Courtney v. Ashcraft

• Citation: 105 S.W. 106
• Parties: COURTNEY ET AL. v. ASHCRAFT ET AL.
• Decision Date: 12 November 1907
• Court: Kentucky Court of Appeals

105 S.W. 106

COURTNEY ET AL. v. ASHCRAFT ET AL.

Court of Appeals of Kentucky.

November 12, 1907

Appeal from Circuit Court, Lee County.

"Not to be officially reported."

Action by Herbert Ashcraft and others against M. H. Courtney and another. Judgment was rendered for plaintiffs, and a motion for new trial denied, and defendants appeal. Reversed and remanded.

H. L Wheeler and Thos. W. Bullitt, for appellants.

J. B White and W. H. Holt, for appellees.

CLAY C.

Appellees Herbert Ashcraft and others, instituted this action against appellants, M. H. Courtney and the Clay City National Bank to recover the value of certain timber alleged to have been cut and removed by appellants from a tract of land consisting of 498 acres, the ownership and possession of which are claimed by appellees. Appellants admitted the cutting and removing of the timber, but alleged that it was taken from lands the title and possession of which were in appellant Clay City National Bank. The trial resulted in a judgment for appellees in the sum of $2,500. A new trial was refused, and M. H. Courtney and Clay City National Bank are here on appeal. Appellants contend that the trial court erred in refusing them a peremptory instruction.

At the trial of the case appellees attempted to show record title as follows: June 4, 1786, state of Virginia to John Carnan. June 12, 1798, Wm. Cowland to John Dale, trustee for Thomas Champney, February 15, 1817, Richard Champney, heir at law of Thomas Champney, to Thomas Duckham. September 21, 1816, Sylvania Shumway to Thomas Duckham. February 11, 1831, Thomas Duckham to James Haggins. October 16, 1839, Thomas Duckham to Oliver Crawford. September 14, 1888, Oliver Crawford's heirs, by Commissioner T. J. Flynn, to J. B. Ashcraft. 1896, J. B. Ashcraft, deceased, to appellees, his heirs. As no deed was offered by appellees conducing to show that John Carnan's title devolved upon Wm. Cowland, or any grantor or grantee named in any subsequent deed, the patent from the state of Virginia to John Carnan was excluded by the court, as well as all other deeds produced by appellees, except the deed of October 16, 1839, from Thomas Duckham to Oliver Crawford, and the deed of September 14, 1888, from T. J. Flynn, commissioner, to J. B. Ashcraft. These deeds were admitted for the purpose of showing the extent of the claim of title made by Oliver Crawford, and afterwards by J. B. Ashcraft, as affecting appellees' claim of title based upon adverse possession. Appellants proved the following chain of title in the Clay City National Bank: January 4, 1786, state of Virginia to John Carnan (29,823 acres). May 10, 1793, John Carnan to Thomas Flahaven (east portion of patent, containing 17,823 acres). From this point on the title runs through various deeds and court proceedings to David Pryse. It will not be necessary to set forth these deeds and proceedings, for the reason that the title of David Pryse was held to be valid by this court in the case of Kentucky Land & Immigration Company v. Crabtree, 113 Ky. 922, 70 S.W. 31, wherein all conveyances and proceedings are given in detail, and the same objections raised by appellees in this case thoroughly discussed and adjudged to be without merit. From David Pryse the title runs as follows: February 18, 1888, David Pryse to S. S. Bush. February 24, 1888, S. S. Bush and wife to Beattyville Mineral & Timber Company. March 11, 1892, Beattyville Mineral & Timber Company to David Pryse. April 17, 1895, David Pryse, by C. B. Hill, commissioner, to Clay City National Bank. As there is no break in the title of the Clay City National Bank, and as the several conveyances are shown by competent witnesses to include the land in controversy, there can be no question that the record title of appellant Clay City National Bank was clearly established. In addition to this it appears from the evidence of John Ashcraft, J. M. Beatty, and John C. Cole that appellants and their grantors actually occupied the land in controversy, as well as the other lands to which they held the legal title. It further appears from the evidence that the tract of 498 acres claimed by appellees interferes with the tract of 1,395 acres to which the bank has the legal title. From that interference the timber was cut. As appellees established no title of record to the lands in controversy, it follows that their title must depend alone upon the adverse possession by them and those through whom they claim.

As to the possession by Oliver Crawford the evidence is to the following effect: (1) Oliver Crawford built two cabins on a part of the 1,000-acre tract of land conveyed to him by Duckham, each of which was located some distance from the 498-acre tract described in the petition. One witness testifies that Eli Stuart occupied one of these cabins "for one season of masting hogs and then left." Another witness testifies that Eli Stuart occupied one of the cabins for a year or more, looking after Oliver Crawford's cattle. Another witness testifies that one of the cabins was put up for hunting parties, and that witness John Goff and other persons from Clark occupied it while hunting. (2) Crawford lapped down some trees and made a brush fence "just around the heads of the hollows"; but the location of this fence with regard to the 498-acre tract is not shown. This fence was constructed for the purpose of filling up the gaps in the cliffs to prevent the escape of stock. (3) Crawford in the summer and spring kept cattle and horses, and in the winter, when there was mast, kept hogs somewhere on the 1,000-acre tract; but the exact location with regard to the 498-acre tract is not shown. Many other people grazed their stock on the same land. (4) Several other persons lived within the 1,000-acre tract...