Hardaway v. Webb
| Decision Date | 06 December 1916 |
| Parties | HARDAWAY v. WEBB. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Letcher County.
Suit by H. Hardaway against Ben R. Webb, wherein defendant filed a counterclaim. From a decree for defendant, quieting title in the land in controversy, plaintiff appeals. Affirmed.
Nickell & Tynes, of Hazard, for appellant.
Jno. C Eversole, of Booneville, and Felix G. Fields, of Whitesburg for appellee.
By this action, instituted in the Letcher circuit court, the appellant, H. Hardaway, sought to recover of the appellee Ben R. Webb, damages for cutting timber from a certain tract of land described in the petition, of which appellant claims to be the owner. Appellant also prayed an injunction restraining appellee from the further cutting of timber from the land. The lands described in the petition and claimed to be owned by appellant embrace about 400 acres. The appellee's answer denied appellant's ownership of the timber or the land from which it was cut and alleged title to both in himself; that is, that he owns a tract or tracts of land containing about 200 acres with which appellant's land described in the petition interferes to the extent of 50 or 60 acres, from which interference the timber was cut, and that his title to the 200 acres, including the 50 or 60 acres in controversy, is superior to that of appellant. The answer was made a counterclaim against appellant, and judgment was asked against him for the value of the timber, which, though cut by appellee from the land in controversy, had been removed and appropriated by appellant under an order of delivery. The latter's reply controverted the affirmative allegations of the answer, and pleaded an estoppel based upon the following facts: That at the time appellant was negotiating for the purchase of the lands now owned by him, and when he was investigating the title thereto, the appellee, upon being asked by appellant's agent whether he owned any part of the land in controversy, disavowed all claim of ownership thereto, and stood by and saw appellant purchase and pay therefor without objection and without asserting any title thereto. The plea of estoppel was controverted by rejoinder. Upon the issues thus formed the parties took proof. Following the submission of the case the court below, by its judgment, declared appellee to be the owner of the 50 or 60 acres of land in controversy, quieted his title thereto, and awarded him $100 as the value of the timber taken by appellant from the land under the claim or order of delivery after it had been cut by appellee. Appellant complains of that judgment; hence this appeal.
It appears from the record that appellant claims title to the land in controversy under a 100-acre patent issued to D. I. Vermillion April 12, 1872, and also under a deed from Alfred Hall to D. I. Vermillion made July 16, 1860. Appellee claims title under a 500-acre patent issued to Ezekiel Brashears and Alfred Hall, April 10, 1849, and a deed from Adam Hall to Simpson Adams, March 15, 1854. Hall had previously been conveyed by Ezekiel Brashears his entire interest in the 500-acre tract of land patented to Ezekiel Brashears and Alfred Hall. The tract of land conveyed by Alfred Hall to Simpson Adams March 15, 1854, containing 50 or 60 acres, was conveyed September 13, 1869, to appellee by deed from Simpson Adams. The deed from Alfred Hall to D. I. Vermillion of July 16, 1860, conveyed to the latter all the interest Hall owned in the Brashears and Hall 500-acre patent, except the 50 or 60 acres conveyed Simpson Adams by Alfred Hall, March 15, 1860. The above-mentioned title papers, together with the several deeds showing appellant's chain of title back to D. I. Vermillion, were introduced in evidence. As the patent to Ezekiel Brashears and Alfred Hall, the deed from Brashears to Hall and the deed from Hall to Simpson Adams are of older date than the D. I. Vermillion patent or the deed from Alfred Hall to D. I. Vermillion, it necessarily follows that appellee was entitled to recover the land in controversy if the Brashears and Hall patent and the deed from Alfred Hall to Simpson Adams and that from the latter to Ben R. Webb cover the land in controversy.
An elaborate map or plat, marked "B. R. W. No. 5," showing the respective contentions of the parties as to the location of the lines of the Brashears and Hall patent and other boundaries involved in this case, is here inserted in the opinion. According to the contention of appellee, the boundary of the Brashears and Hall patent is indicated on this map by the black letters A, B, C, D, E, F, G, H, I, and A. As claimed by appellant, the boundary of that patent is indicated by the black letters A, B, and the red letters C, D, E, F, G, H, I, and A. The 50-acre tract of land conveyed appellee by Simpson Adams and to the latter by Alfred Hall is indicated by the yellow lines on the map. The D. I. Vermillion 100-acre patent of April 12, 1872, is indicated by the blue lines on the map, beginning at black letter B and running to red letters C, D, E, then to black letters D, C, B.
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The only difficulty presented is in locating the second line of the Brashears and Hall patent. If the lines are followed according to the calls of the certificate of survey or those of the patent, the patent does not cover the land in controversy, but if run according to the original plat made of the survey, the patent will cover the land in controversy. The difficulty referred to arises out of a mistake in the call of the second line. The beginning corner at black letter A and the corner at black letter B, are admitted by appellant to be correct; but in running from B to the object called for, a chestnut oak on the top of a hill, the line calls to run S. 38~ E. 122 poles, when in fact it should be S. 83~ E. 122 poles. In the original plat it is given as S. 83~ E. 122 poles, but in the certificate of survey and the patent it is S. 38~ E. 122 poles. The plat, certificate of survey, and patent agree as to all the other lines. The question to be determined is: Is the alleged mistake thus made in the second line of the patent so evident as to authorize its correction?
The plat of the survey for the Brashears and Hall patent must have been made at the conclusion of the survey and the field notes according to the plat, but in transcribing the field notes in later making out the certificate of survey, the surveyor made the mistake of transposing the figures in the second call by making them "38" instead of "83." Naturally this mistake was carried into the patent which, when issued, was made to conform to the calls contained in the certificate of survey. The error is patent from the following facts: (1) To run the second line on a course S. 38~ E. 122 poles, instead of S. 83~>>> E. 122 poles, would not carry it to the chestnut oak called for on top of the hill, the stump of which is still there and was fully identified, but to a point in a flat at red letter C, as shown on the map where no chestnut oak was or could be found; (2) by making the necessary correction in the second line, and running it from black letter B, S. 83~ E., 122 poles to the chestnut oak on the top of the hill at black letter C, and then in accordance with the further admittedly correct calls of the patent, would make the patent properly close with the last line running from black letter I to black letter A; whereas, to run the second line from black letter B, S. 38~>>> E., 122 poles, to red letter C, and thereafter according to the further calls of the patent as claimed by appellant and shown by the red letters D, E, F, G, H, I, A, it would lack 108 poles of closing.
Quite a number of witnesses besides appellee himself, many of them elderly men, all residents of the neighborhood and well acquainted with the corners and lines of the Brashears and Hall patent, testified to the correctness of the boundary of the patent as claimed by appellee. Some of these witnesses had seen the patent surveyed by Stephen Fields and others by Newt. Lewis; still others by Nehemiah Webb, all of whom established the second line from black letter B to black letter C by following the call in the original plat, S. 83~>> E. 122 poles, which invariably...
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