Fordson Coal Co. v. Spurlock

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: DENISON, DONAHUE, and MOORMAN, Circuit
• Citation: Fordson Coal Co. v. Spurlock, 19 F.2d 820 (6th Cir. 1927)
• Decision Date: 10 June 1927
• Docket Number: No. 4777.,4777.
• Parties: FORDSON COAL CO. v. SPURLOCK et al.

19 F.2d 820 (1927)

FORDSON COAL CO. v. SPURLOCK et al.

No. 4777.

Circuit Court of Appeals, Sixth Circuit.

June 10, 1927.

Cleon K. Calvert, of Pineville, Ky. (John G. Bruce, of Pineville, Ky., and W. R. Middleton and Clifford B. Longley, both of Detroit, Mich., on the brief), for appellant.

Joseph C. Jones, of Frankfort, Ky. (Charles H. Morris and Morris & Jones, all of Frankfort, Ky., and William Lewis, of London, Ky., on the brief), for appellees.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

MOORMAN, Circuit Judge.

The true location of a grant of land from the state of Kentucky to William Spurlock, made April 11, 1853, is the subject of this litigation. The patent describes the land as follows:

"Lying and being in the county of Clay on the waters of Bullskin or Spurlock branch and bounded as followeth (to wit): Beginning at a corner of a 50-acre survey made in the name of Wm. Spurlock and bounded as followeth (to wit): Beginning at a chestnut and chestnut oak and black oak; thence N 64 W 260 poles to a stake, a corner of a 50-acre survey made in the name of John R. Graham; thence S 52 W 56 poles to three beeches, dogwood and chestnut on the head of one fork of Bullskin; thence S 66 W 66 poles to a stake; thence W 94 poles to a stake; thence S 41 E 100 poles to a stake; thence S 64 E 360 poles to a stake; thence N 163 poles to the beginning."

Appellant, who brought the suit, claims that the land lies on the headwaters of Bullskin, a tributary of Red Bird fork of the South fork of the Kentucky river, and appellees claim that it lies mainly on the headwaters of Lower Jack's creek, another tributary of the Kentucky river. A ridge divides the two streams. Two other patents issued to William Spurlock as assignee of John R. Graham, July 8, 1847, upon surveys of May 4, 1846, are pertinent to the location of the boundary in dispute, one for 50 and the other 150 acres. The locations of these tracts are definite and certain, although appellant's surveyor failed to show the 150-acre tract on the map which he filed. The beginning corner of the 200-acre tract is said in the description to be a corner of the 50-acre survey. The lower court found that there is no corner of the 50-acre survey at this point, but a corner of the 150-acre survey, the twelfth corner thereof. This, we think, was conclusively shown by appellees' proof, and, despite the denial of any knowledge of the 150-acre tract by appellant's engineer, is partially admitted in appellant's bill, where it is twice said that the beginning corner is a corner of the 150-acre survey. Besides, the call in the 150-acre survey from the twelfth corner thereof is "thence S 64 W. 260 poles to a stake and corner to Graham's 50 acres aforesaid," which corresponds with the first call of the 200-acre tract as corrected by the court. There can, in our opinion, be no doubt that the beginning corner, the location of which without reference to other patents is agreed upon, is the twelfth corner of the 150-acre tract.

The first call of the 200-acre patent is for a line running N 64 W 260 poles to a stake, a corner of a 50-acre survey made in the name of John R. Graham. If the line were run according to the course called for, it would not reach the 50-acre survey. Appellant contends that it should be so run, disregarding the object of the call; whereas appellees contended and the court held that the courses and distances should give way to the object which was certain and definite.

The corner of the 50-acre survey nearest the beginning corner of the 200-acre tract is the tenth or northeastern corner, which, instead of being N 64 W 260 poles, is S 64 W approximately 260 poles. The lower court, by reading south for north, established the line, fixing the terminus at the tenth corner of the 50-acre tract, and then proceeded to the second call, running S 52 W 56 poles to three beeches, a dogwood and chestnut, which is the eighth corner of the 50-acre survey and the beginning corner of the 150-acre survey, concluding that the similarity of the timber called for as the eighth corner of the 50-acre survey with that called for as the third corner of the 200-acre survey, with other facts to which we need not refer, was sufficient evidence of the third corner of the 200-acre survey to disregard the calls of the second line thereof.

There was an objection to such location, resulting from the fact that there were two calls in the 50-acre survey between the beginning and ending points of this line, the beginning point being at the tenth corner and the end at the eighth corner. This was quite justifiably overcome by reference to the certificate of survey filed in the surveyor's office of Clay county, wherein the second call as there given was "thence with lines of same i. e., the 50-acre survey S 52 W 56 poles to three beeches, dogwood and chestnut corner to same and in the head of one fork of Bullskin," which would indicate that references to the lines of the 50-acre survey and a corner thereof as the terminus of the second line were omitted from the state grant by mistake, as the court below concluded.

The third, fourth, fifth, and sixth lines were located as called for in the grant, but the survey could not be closed by running from the end of the sixth line as called for; hence the problem of locating the seventh corner. This was done according to the practice in Kentucky by extending the sixth line and also the seventh line reversed until they intersected. Chambers v. Tharp (Ky.) 93 S. W. 627; Williams v. Brush Creek Coal Co., 149 Ky. 188, 148 S. W. 372; Louisville Property Co. v. Rose, 184 Ky. 221, 211 S. W. 743. To close the survey in that way would include within its boundary more than 2½ times as much land as was called for in ...