Federal Gas, Oil & Coal Co. v. Harmon

• Decision Date: 15 May 1934
• Parties: FEDERAL GAS, OIL & COAL CO. et al. v. HARMON et al.
• Court: Kentucky Court of Appeals

71 S.W.2d 630

254 Ky. 255

FEDERAL GAS, OIL & COAL CO. et al. v. HARMON et al.

Court of Appeals of Kentucky

May 15, 1934

Appeal from Circuit Court, Martin County.

Action by Uriah Harmon and wife against the Griffith Lumber Company which filed an amended answer and counterclaim which it made a cross-petition against the Federal Gas, Oil & Coal Company which filed an answer and counterclaim. Judgment for plaintiffs, and defendant and cross-defendant appeal.

Reversed with directions.

Buford C. Tynes, of Huntington, W. Va., Ira M. Nickell, of Ashland and W. R. McCoy, of Inez, for appellants.

J. B. Clark and J. H. Preece, both of Inez, for appellees.

CREAL Commissioner.

This action originated in the quarterly court of Martin county on September 2, 1927, when Uriah Harmon and Betty Harmon, his wife, filed a petition against the Griffith Lumber Company, a corporation, wherein they sought to recover from the latter the sum of $195 as the value of timber alleged to have been wrongfully cut and removed by the corporation from a tract of land described in the petition which it was alleged belonged to plaintiffs. After setting out the boundary by natural objects, the tract of land is further described as containing about 200 acres "and being the same lands bought from Henry Harmon."

By answer the Griffith Lumber Company denied all material allegations of the petition and alleged that if it had cut or removed timber from the boundary of land described in the petition it had legal title thereto and that plaintiffs were not the owners of the timber and had no interest therein. It asked that the cause be removed to the Martin circuit court for the purpose of determining the title to the timber in controversy. Upon its motion the case was transferred to the Martin circuit court.

By reply, plaintiffs traversed the affirmative allegations of the answer and thereafter filed an amended petition in which they alleged that the defendant unlawfully entered upon the tract of land described in the petition and cut and removed 735 trees consisting of 200 poplar, chestnut, and walnut trees under 14 inches 2 feet from the ground, the size agreed upon between the parties, worth $1.50 each or at least $300; and that the remainder of the timber cut, and under the size agreed upon between the parties, was of the value of $250 and they asked for judgment for $550.

On August 6, 1928, the Griffith Lumber Company filed an amended answer and counterclaim which it made a cross-petition against the Federal Gas, Oil & Coal Company in which it alleged that at the time complained of in the petition it was the owner and had the legal title to and was in possession of all timber on a tract of land situated on Emily fork of Wolfe creek and its tributaries in Martin county which is fully described in the pleading and also described certain exceptions from the boundary and further alleged that no part of the timber as complained of was cut from the lands included in the exceptions; that since the filing of the answer and amended answer, it learned that plaintiffs were claiming to be the owners of timber growing on a portion of the land upon which it was the owner of the timber; that the patent under which it claims the timber is senior to the patent under which plaintiffs claim; and that to the extent that plaintiffs' claim laps upon the boundary upon which it owned the timber, their title was void and of no effect and that it and not plaintiffs owned the timber thereon.

For cross-petition against the Federal Gas, Oil & Coal Company, it alleged that it purchased the timber in dispute from the Federal Gas, Oil & Coal Company, a corporation, and asked that it be made a party and called upon to intervene and assert its title to the boundary in dispute.

On January 8, 1929, the Federal Gas, Oil & Coal Company filed its answer and counterclaim in which it denied that plaintiffs are the owners of or have legal title to the tract of land described in the petition or any part thereof or that they are the owners of the timber thereon and further alleged that it is the owner of and in the actual possession of the tract of land and the timber thereon described in the answer, counterclaim, and cross-petition of the Griffith Lumber Company, the description being the same as that given in the latter pleading; that part of the land set out and described in plaintiffs' petition laps upon and conflicts with the boundary described in its answer and to the extent of the conflict, it is the owner thereof and the timber thereon. It further alleged in effect it claimed title under a patent senior to the one under which plaintiffs claim title and that plaintiffs' claim to any portion of the land was a cloud upon its title which it asked to have removed.

In a second amended answer the Griffith Lumber Company alleged that in June, 1925, the plaintiffs sold to the Wolfe Creek Lumber Company, its grantor, all timber 14 inches and over measured at the stump on a tract of land described in the deed as containing 200 acres for $1,200 and by deed or instrument conveying same warranted generally the title thereto; that prior to the purchase by its grantor, the Wolfe Creek Lumber Company, of such boundary of timber, the Wolfe Creek Lumber Company had purchased from the Federal Gas, Oil & Coal Company a tract of land which adjoins and interlocks with the tract of timber sold by plaintiffs to the Wolfe Creek Lumber Company to the extent of 65 acres; that the title of the Federal Gas, Oil & Coal Company to the 65-acre interlock is superior to that of plaintiffs and that by reason thereof plaintiffs have no title to such interlock; that at least 40 per cent. of the timber embraced in the contract of sale by plaintiffs to its immediate grantor, the Wolfe Creek Lumber Company, was cut from the land embraced within the 65-acre interlock and that its value represented 40 per cent. of the purchase price therefor, or $480; and that by reason of being so situated, it was compelled to and did pay to the Federal Gas, Oil & Coal Company a sum in excess of that amount and by reason thereof it is entitled to recover from plaintiffs the sum of $480, for which sum it prayed judgment on its counterclaim.

The cause was referred to the master commissioner to hear proof and make a report of his finding to the court. In addition to numerous exhibits, plats, etc., there are 6 volumes of transcript of the evidence heard. The evidence discloses that on May 28, 1866, a patent was issued to William Troy for a tract of 32,000 acres, the boundary of which includes all lands referred to and described in the pleading in this action. In 1881, a patent was issued to Henry Harmon for a 200-acre tract now claimed by Uriah and Betty Harmon. The Federal Gas, Oil & Coal Company established by record its chain of title running back to the patent from the commonwealth to William Troy. Plaintiffs claim title under the Henry Harmon patent. They introduced no title papers in evidence but this was done by defendants.

In time, the William Troy patent has been divided by an east and west line called the "divisional" line which divides the patent into what is known as the southern half and northern half of that patent. The Federal Gas, Oil & Coal Company owns a large tract in the southern half of the Troy survey and claims this divisional line as its northern boundary.

B. H. Howell, an engineer, shown to have had much experience in surveying and locating mountain lands, introduced in the record a plat showing the location of the "divisional" line between the northern and southern half of the Troy patent and the lands south thereof owned by the Federal Gas, Oil & Coal Company. He also located on the plat the Henry Harmon patent claimed by plaintiffs. This plat shows that the Henry Harmon patent overlaps the southern half of the Troy survey to the extent of 59.40 acres. He testified that his plat correctly shows the location of the line and the boundary of the various tracts.

L. E. Wallace, an engineer, introduced by plaintiffs, who also has had much experience in surveying and locating mountain lands, testified and introduced in evidence a plat in which he located the dividing line between the northern and southern half of the Troy survey and also showed the location of the Henry Harmon patent. This plat shows that the latter patent overlaps the southern half of the Troy survey, but he did not attempt to correctly compute the extent of the overlap, however, he gave as his opinion that it was more than 50 acres and stated that Howell's location of the Harmon patent was substantially correct.

In the report of his findings the master commissioner first took up the question of title to the land in controversy called the "interlock" from which a portion of the timber in controversy had been cut, and, after referring to the patents under which the respective parties claim title, he concluded that since appellees claim title under a junior patent and subsequent deed to the disputed lands, they must fail unless they established possession for such a period of time and of such character as to establish title by adverse possession. He found, in effect, that B. H. Howell, the engineer introduced by the Federal Gas, Oil & Coal Company, had shown on his plat the correct location of the line between the northern and southern half of the Troy patent. A careful examination of the evidence bearing on that question reveals that his findings as to the proper location of this line is sustained by a preponderating weight of evidence. He found however, that the Harmons and those under whom they claim, had cut timber, farmed, and exercised ownership and control over that portion of the Henry Harmon...