Davis v. Farmer

• Court: U.S. District Court — District of Kentucky
• Citation: Davis v. Farmer, 141 F. 703 (U.S. Dist. Ct., D. Ky. 1894)
• Decision Date: 29 September 1894
• Parties: DAVIS v. FARMER et al.

141 F. 703

DAVIS v. FARMER et al.

United States District Court, D. Kentucky.

September 29, 1894

BARR District Judge.

This is a suit to quiet the title of the complainant as against the claim of the defendants. The complainant claims a fee-simple title to a large tract of land in the counties of Harlan and Bell, in this state. The claim is based upon a patent issued by the commonwealth of Kentucky, dated September 25, 1845, to John Ledford, Noble Smith, and Henry Skidmore. The land is described thus, to wit:

'Beginning on Crank's Creek, on two beeches and two sugar trees the beginning corner to said Smith's 1,500-acre survey thence south, 70 degrees west, 664 poles, to three beeches beginning corner to a 600-acre survey of said Smith; thence south, 28 degrees west, 400 poles, to a stake on the top of Cumberland Mountain; thence south, 60 degrees west, 8,320 poles, to a stake near Cumberland Gap; thence north, 55 degrees, 8,820, to a stake; thence south, 5 degrees west, 3,150 poles, to the beginning.'

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It is alleged that this patent was issued under a survey made and dated March 3, 1845, by James Farmer, surveyor of Harlan county, Ky., upon a warrant, numbered 316, issued by the Harlan county court on March 3, 1845, which directed said surveyor to survey for said Ledford and Skidmore 86,000 acres of land in Harlan county. It is alleged that Ledford and Skidmore assigned to Noble Smith an undivided interest of 28,666 2/3 acres in said land by a written indorsement on said warrant, and hence the patent was issued to Ledford, Skidmore, and Smith.

The claim of the defendants, Wm. C. Farmer, John W. Forrester, Leopold Wallack, E. B. Moore, and others, which the complainant is seeking to have quieted against, is based upon an alleged survey made same day as survey to Ledford, Skidmore, and Smith, March 3, 1845, and patented by the commonwealth of Kentucky on the 5th day of July, 1846, to said Wm. C. Farmer and Thomas Forrester, assignee, etc., and is described as bounded thus, viz.:

'Beginning at two Spanish oaks and black oak on top of Cumberland Mountain, in the Chadwell Gap, near the head waters of Martin Fork, near a cliff of rock west of the trace leading across said mountain; thence south, 71 degrees west, 140 poles, to a hickory on top of the mountain; thence south, 72 west, with the top of said mountain, 2,560 poles, to a stake near Cumberland Gap; thence north, 800 poles, to a stake; thence north, 72 east, 2,240 poles, to a stake; thence north, 540 poles, to a stake; thence north, 70 east, 960 poles, to a stake; thence south, 3 east, 1,280 poles, to a stake; thence south, 62 west, 600 poles, to the beginning-- containing 12,900 acres, more or less.'

This tract of land, if the line be run along the crest of Cumberland Mountains from Chadwell Gap and to the center of Cumberland Gap, will be almost entirely within the exterior lines of the 86,000-acre survey, if the center of Cumberland Gap be considered the fourth corner of that survey. There is, however, upon these assumptions, a triangular strip of land which is outside of these lines and which is not claimed by complainant in her pleadings. There are also 21 tracts of land, held by and under patents and surveys within the exterior lines of said 12,900-survey, which are senior to complainant's patent and not claimed by her.

If, however, the 86,000-acre survey and patent be located, not with the fourth corner at Cumberland Gap, but according to the distances and corners as called in the survey and patent, then about two-thirds of the 12,900-acre survey will be within the exterior boundaries of the 86,000-acre survey.

The defendants William C. Farmer and John W. Forrester have filed answers, and set up as a defense to complainant's bill that the survey of the 12,900 acres of land was made in the morning of March 3, 1845, and before the survey of the 86,000 acres of land to Skidmore, Smith, and Ledford, by said Wm. C. Farmer, who was then a deputy surveyor of Harlan county, under James Farmer, who was the surveyor of said county, under proper warrant, and that there was a parol agreement with said Skidmore, Smith, and Ledford that this prior survey should be made, and that they did not claim the land within the 12,900-acre survey. The complainant excepted to this defense, and the court sustained the exception; and it need not be noticed now, further than to state all the testimony taken by defendants to sustain this defense has been excepted to by complainant and should now be sustained and excluded from the record.

The record shows that the defendants Farmer and Forrester contracted to sell the 12,900-acre survey to one Edward B Moon, who has filed an answer and cross-bill herein. In his answer he denies complainant's title and possession, and in his cross-bill he sets out his contract of purchase from defendants Farmer and Forrester, and their subsequent sale to one Leopold Wallack by Farmer and Forrester, and prays for an enforcement of his contract of purchase. This cross-bill has not been prepared and need not be considered now. It appears from the record that Farmer and Forrester have conveyed all their right, title, and interest to Leopold Wallack, and that he was, at the commencement of this suit, January, 1891, and still is, the holder of the title of said Farmer and Forrester in said 12,900-acre...