Davis v. Commonwealth Land & Lumber Co.

• Court: U.S. District Court — Eastern District of Kentucky
• Citation: Davis v. Commonwealth Land & Lumber Co., 141 F. 711 (E.D. Ky. 1904)
• Decision Date: 31 August 1904
• Parties: DAVIS v. COMMONWEALTH LAND & LUMBER CO., et al.

141 F. 711

DAVIS v. COMMONWEALTH LAND & LUMBER CO., et al.

United States Circuit Court, E.D. Kentucky.

August 31, 1904

Frank Chinn, D. W. Lindsey, and William Ayres, for Charles Henry davis.

Helm Bruce & Helm and W. F. Hall, for Commonwealth Land & Lumber Co.

COCHRAN District Judge.

This is a suit by the complainant, Charles H. Davis, trustee, against the defendants, Commonwealth Land & Lumber Company, North Cumberland Manufacturing Company, Continental Land Company and G. W. Bramlett, to quiet his title to certain land in Harlan county, Ky. A decree pro confesso has been entered against the defendant companies. The individual defendant Bramlett, alone has answered the bill. He does not assert title to said land in himself, but in his son, W. L Bramlett, as purchaser at judicial sale in proceedings against the first-named company, whom he claims purchased for his benefit and on whose sale bond he is surety.

That land is a part of a certain tract of land granted by the commonwealth of Kentucky to John Ledford, Henry Skidmore, and Noble Smith by patent dated September 25, 1845, issued on a survey dated March 3, 1845, made under an order of the Harlan county court and conveyed, except so far as covered by senior patents and prior conveyances, November, 1870, by said patentees to complainant's grandfather, Edward M. Davis, through whom he claims, and is a part of that portion thereof outside of said senior patents and prior conveyances. Said senior patents are not identified in said conveyance, are quite numerous, and cover a large portion of the land within the boundary of said tract of land contained in the patent. Said prior conveyances are very few, cover but a small portion of said land, and are specifically identified in said conveyance. The description of said tract of land granted by said patent as set forth therein is as follows, to wit:

'A certain tract or parcel of land containing eighty-six thousand acres, by survey bearing date the 3d day of March, 1845, lying and being in the county of Harlan and bounded as follows, to wit: Beginning on Crank's creek on two bushes and two sugar trees, beginning corner to said Smith's 1,500 survey; thence, S. 70 degrees W., 664 poles, to three beeches, beginning corner to Smith's 600-acre survey; thence S. 28 degrees W., 400 poles, to a stake on the top of Cumberland Mountain; thence S. 60 degrees W., 8,320 poles, to a stake near Cumberland Gap; thence N. 15 degrees E., 3,200 poles, to a stake; thence N. 55 degrees E., 8,820 poles, to a stake; thence S. 5 degrees W., 3,150 poles, to the beginning.'

The land to which complainant desires his title quieted is a part of the land contained with the following boundary, to wit: Beginning at a double maple, two beeches, and two black gums, on the north side in all 680 poles, to a sugar tree and hickory; thence south, crossing said fork, 480 poles, to a stake in the Little Black Mountain; thence west 1,920 poles, to a stake; thence north 480 poles, to a stake; thence N. 66 degrees E. 680 poles, to a stake on the Poor Fork; thence running up the same, N. 80 degrees E., 1,920 poles, to a stake; thence, recrossing said Big Black, 960 poles, to the beginning-- granted to Moses Cawood, under whom defendant asserts title as aforesaid by a patent issued January 28, 1846, on a survey dated March 6, 1845, made by virtue of an order of the Harlan county court of that date. This patent is three days junior to the Ledford patent, and states that said boundary contains 9,500 acres. Complainant claims that the whole of this tract is within the boundary of the Ledford patent; that 4,500 acres thereof is within that portion of said patent covered by senior patents; and that as much as 5,000 acres thereof is within the portion of said patent not covered by senior patents or prior conveyances. It is this latter portion of said Cawood patent that complainant claims, and his title thereto that he seeks to have quieted herein.

The defendant denies that the whole of the Cawood patent is within the Ledford patent, or that as much as 5,000 acres thereof is within said portion thereof outside of the senior patents. In his answer he states that he has not sufficient knowledge or information to form a belief as to whether any part thereof is within that part of the Ledford patent outside of the senior patents, and denies that exceeding 1,000 acres thereof is within such part of the Ledford patent. According to the evidence as presented by him, a part of the Cawood patent, possibly as much as one-third thereof. The defendant does not take the position, either in his pleading or evidence, that no part of the Cawood patent is within that part of the Ledford patent outside the senior patents, and hence that no part of the land claimed by him is within any part of the land claimed by complainant. His not doing so conduces to show that his real position relates to the extent that his claim is within complainant's. The extent that the one claim is within the other claim, and hence of complainant's right to relief herein, if he is entitled to relief, depends primarily on the question as to how much of the Cawood patent is within the Ledford patent. In order to settle it, both patents must be located. There is no dispute as to the location of the Cawood patent. There is as to that of the Ledford patent. And this is the principal controversy in this case, to a consideration of which I will at once proceed. What, then, is the true location of the Ledford patent?

At the threshold of this question, we are met with the contention by defendant that the Court of Appeals of Kentucky, in the case of Creech v. Johnson, 76 S.W. 185, 25 Ky.Law Rep. 659, has located the Ledford patent, and that this location is conclusive on this court. The first proposition is conceded; the second is disputed. Is this court, then, conclusively bound by the location of the Ledford patent made in that case? Is it thereby foreclosed from investigating and determining the true location of said patent on its merits? That case was this: It was an action by one Johnson and two Jacksons against two Creeches to recover possession of 222 poplar logs alleged to have been wrongfully detained by defendants from the plaintiffs and $400 for the wrongful detention thereof. The petition alleged that they were cut by defendants from 50 acres of unoccupied land of which the plaintiffs were the owners. The defendants denied that the plaintiffs were the owners of said land or logs, and alleged affirmatively that the plaintiffs claimed said land under a patent which issued in 1902 on a survey made in that year, and that same was void because it was embraced by the Ledford patent, under which the complainant herein claims, and also by a patent to one Boyd Dickinson issued more than 40 years before. These affirmative allegations were denied by the plaintiffs. The lower court rendered a money judgment in favor of plaintiffs against defendants for the sum of $256. This judgment was affirmed by the Court of Appeals. The action was brought September 22, 1902, one month and fourteen days after this suit was brought, which was on August 8, 1902. Judgment in the lower court was rendered June 2, 1903. The appeal was docketed at September term, 1903, of the Court of Appeals, submitted September 29, 1903, on motion to advance, and disposed of October 14, 1903. After this action was brought, and before its final disposition, five other suits were brought in this court by complainant against other claimants to part of the same land, including said Creeches, which suits are still pending. I cannot resist the conclusion that the object of that action was to bring about a construction of complainant's patent by the Court of Appeals of Kentucky adversely to complainant's contention as to its true location, in order that such construction might be availed of in this and the other suits pending in this court as a bar to the view that it might have as to such location. The situation existing at the time the action was brought, the proceedings had in it, and the reasons given, on the motion to advance it in the Court of Appeals, for its being advanced, all conduce to this end.

This court had in two suits prior to the pending litigation herein in regard to said patent construed it. Judge Barr had construed it in 1894 (Davis v. Farmer (D.C.) 141 F 703), and Judge Evans in 1900 (Davis' Heirs v. Hinckley (C.C.) 141 F. 708). They placed the same construction upon it, which was adverse to the construction thereof advanced by the defendants in said pending litigation. This construction had been acquiesced in by the defendants in the prior litigation. It was reasonable to conclude that this court would adhere to its former construction if things remained as they had been. A possible, if not probable, ground of getting it to change its construction, was to obtain a construction by the Court of Appeals before the pending litigation could be prepared and brought to a hearing, upon the idea that it was a question of local law and this court would be bound by that construction. Such was the situation when said action was brought. Then, as to the proceedings had: Many of the steps in it were taken by agreement of the parties. Though a common-law action, it was agreed that it might be tried by the court upon depositions; the taking of the depositions was by agreement, and what one witness would swear to was agreed to; instead of bill of exceptions, an agreement was filed as to the evidence heard in the lower court; and in the Court of Appeals both sides concurred in the motion to advance. Still further, plaintiffs' case was made out by introducing his 50-acre patent and proving that the logs were cut from its boundary and their value. This they did...