Degman v. Elliott

• Citation: 8 S.W. 10
• Parties: DEGMAN v. ELLIOTT.
• Decision Date: 29 March 1888
• Court: Court of Appeals of Kentucky

8 S.W. 10

DEGMAN v. ELLIOTT.

Court of Appeals of Kentucky.

March 29, 1888

Appeal from circuit court, Mason county.

Trespass by Lavinia A. Elliott against Charles C. Degman to try title to an island lying in a creek between their farms; the question being within whose boundary line the land is situated. The deeds under which each claims, fix the dividing line as beginning on the north bank of Cabin creek, and running thence up the creek, etc. Judgment for plaintiff, and defendant appeals.

Cochran & Son and T. C. Campbell, for appellant.

Whitaker & Robertson, for appellee.

LEWIS J.

If the lower court erred in this case, it was in complicating with other questions, not proper or relevant, the main inquiry by the jury as to the true location of the boundary line between the two tracts of land owned, respectively, by the plaintiff Lavinia Elliott, and Clarissa Sweet, by whose authority the alleged trespass was committed by the defendant, Degman. There is no controversy about the title of either owner of the two tracts. Mrs. Elliott claims under a deed made by one Bruce to her father in 1835; and Mrs. Sweet claims under a deed from Farrow, made to her in 1861, though he and those under whom he claimed had the title and possession for many years before. Nor is there any real difference in the calls of the deeds of the two owners in respect to the dividing line, which, as described, begins at a hickory on the north bank of Cabin creek, identified as a corner, running thence with the creek to another corner, also recognized. But the dispute is where the main channel of the creek is, or, more properly, was, at the dates of the original deeds,--whether north or south of the small parcel of land in contest, which has been and is at times of high water, and when not inundated itself, an island. If it was on the south side when the dividing line, which follows the north bank, was established, then the disputed land is inside the boundary of the tract of Mrs. Sweet; otherwise not. There is evidence tending to show it was formerly south of the island, and the present bed of the stream then had no running water in it except during a freshet. There is also evidence that the course of the creek was changed about the year 1875, at a time of very high water, and ever since the main channel has been north of the island; the old bed being so filled up that no water flows in it except during a freshet. In the first instruction the jury were told, in substance, that if the plaintiff was in possession of the land in contest, having a crop of turnips thereon, and she, and those under whom she claims, had been continuously in possession for over 15 years next before the alleged trespass, and the defendant entered took and carried away her turnips, they must find damages etc. In the second, that if, at the time of the sale and conveyance by Farrow to Mrs. Sweet, the father of the plaintiff was in possession of the land in contest, claiming it as his own, to a well-defined or marked boundary, the deed of Farrow conveyed no title to Mrs. Sweet, though the land was embraced by it. The third is as follows: ""That if * * * the plaintiff and her father * * * were in possession of the land of which the land in contest forms a part, and adjoining it for more than fifteen...