Holcomb v. Swift Coal & Timber Co.

• Decision Date: 08 December 1933
• Citation: 65 S.W.2d 741,251 Ky. 642
• Parties: HOLCOMB v. SWIFT COAL & TIMBER CO.
• Court: Kentucky Court of Appeals

65 S.W.2d 741

251 Ky. 642

HOLCOMB v. SWIFT COAL & TIMBER CO.

Court of Appeals of Kentucky

December 8, 1933

Appeal from Circuit Court, Letcher County.

Action between John D. Holcomb and the Swift Coal & Timber Company. From an adverse judgment, the first-named party appeals.

Affirmed.

David Hays, of Whitesburg, for appellant.

Bailey P. Wootton, of Frankfort, and D. I. Day and C. H. Burton both of Whitesburg, for appellee.

DRURY Commissioner.

In this action deeds were made under orders of the court conveying to the appellee, which we shall call the S. C. & T. Co., five tracts of land in Letcher county, and to appellant two tracts, and John D. Holcomb has appealed. To avoid confusion we shall designate these tracts in this manner. There was conveyed to the S. C. & T. Co. 44/45 of a tract we shall refer to as A, and the whole of four other tracts; of these the one described as No. 1 we shall call B, No. 2 we shall call C, No. 3 we shall call D, and No. 5 we shall call E; and of the tracts conveyed John D. Holcomb we shall call the one designated as No. 1 F and No. 2 we shall call G.

The S C. & T. Co. is not complaining. John D. Holcomb objects to the conveyance to the S. C. & T. Co. of tract A, but, as he had claimed no interest in that tract, he cannot complain. He objects to the conveyance to the S. C. & T. Co. of tract D, which is the same tract conveyed to S. C. & T. Co. in Holcomb v. Collins et al., 195 Ky. 268, 242 S.W. 353, but as he has, in this action, abandoned his claim to that tract, he is in no position to complain. He complains of the conveyance to him of tract F, but such conveyance could not possibly hurt him, so that is the end of that. No one is complaining of the conveyances made of tracts E and G.

That leaves tracts B and C, and Holcomb insists that all of tract C and the western part of tract B were his and should have been conveyed to him and not to the S. C. & T. Co., and this is the controversy here. The extent of the land that was in controversy in the trial court was about 41 or 42 acres, of which about 12 acres were adjudged to John D. Holcomb, thus leaving about 30 acres in controversy here.

Claim of John D. Holcomb.

Many years ago, and possibly prior to 1800, there lived in Virginia a Mr. and Mrs. Holcomb, who, unable to live together in peace, separated and Mrs. Holcomb came to Ky. with a man named Thomas Early sometimes called Yeary, bringing with them Mrs. Holcomb's two children, Hardin and Henderson Holcomb. They settled on Line Fork creek, built a house, and began to claim all the land thereabouts. Later through a partition agreement of some kind Hardin Holcomb began to claim the western part of this property and Henderson Holcomb to claim the eastern part. In 1866 Henderson Holcomb attempted to convey to his son John Holcomb a tract of land on Line Fork, which is a portion of this eastern part, and John Holcomb in turn attempted to convey this land to John D. Holcomb.

The claim of John D. Holcomb thus derived was involved in Holcomb v. Collins et al., 195 Ky. 268, 242 S.W. 353, and the court there, because of insufficient description, held against his claim as asserted under those deeds. His brief in this case reads like a petition for rehearing in that one, for he is now asserting title through his ancestors by virtue of this long-maintained possession, he relies again on those deeds, and is calling attention to the fact that he is now living and has always lived on this tract in the very house in which his father was born in 1832. and in which his father and grandfather had lived.

His great grandmother was simply a squatter, a mere trespasser, and of course only got title to that whereon she squatted, inclosed, and cultivated, after maintaining an open visible, uninterrupted, exclusive, and peaceable adverse possession of it for the requisite length of time. See Brooks v. Clay, 10 Ky. (3 A. K. Marsh.) 545; Swift Coal & Timber Co. v. Ison, 231 Ky. 404, 21 S.W.2d 659.

No definite limits were set to this claim then, farther than that they claimed all of the watersheds of Line Fork creek and Holcomb's branch. A squatter's possession only includes the land he actually incloses or cultivates, unless his whole claim is inclosed by well-marked boundaries. See Burt & Brabb Lumber Co. v. Sackett, 147 Ky. 232, 144 S.W. 34, 38, in which case it is written: "The occasional marking of a tree here and there, or the assertion of a claim to a boundary that begins, for example, 'at the top of a mountain' and runs 'to the top of a ridge,' and thence 'to a big flat rock,' and thence 'to a poplar tree on a creek,' is not such a boundary as will put the claimant without a deed in possession of the land to the boundary, or outside of his settlement or inclosure."

If a squatter has a well-marked boundary to which he claims that goes beyond his inclosure or cultivation, then he is in actual possession of his inclosure or cultivation, and in contemplation of the law is in constructive possession of such other property as is within this well-marked line.

In New Domain Oil & Gas Co. v. Gaffney Oil Co., 134 Ky. 792, 121 S.W. 699, this court describes such a possession maintained under a color of title as a constructive actual possession, but in New York-Ky. Oil & Gas Co. v. Miller, 187 Ky. 742, 220 S.W. 535, this court said the expression "Constructive actual Possession" has been dropped as confusing, and we classed the possession there asserted (one based on color of title) as an actual possession, but, where a man without a color of title marks off a boundary to which he claims, his possession of those parts not actually inclosed or cultivated is, to say the most, only constructive. True, John D. Holcomb has a deed under which he is claiming, but, it having been held that it is void for defective description, it cannot afford him color of title. See Burks v. Cox, 150 Ky. 511, 150 S.W. 662; Henderson v. Howard's Devisees, 8 Ky. (1 A. K. Marsh.) 26; 2 C.J. p. 177, § 339; 1 R. C. L. p. 714, § 26, note 11.

His grandfather, Henderson Holcomb, his father, John Holcomb, and the appellant, John D. Holcomb, have not been unmindful of the insecurity of their claims, and they have persistently sought to better them. On April 13, 1844, survey No. 5701 of 500 acres was made for Henderson Holcomb; March 25, 1858, survey No. 40769 of 200 acres was made for Ira Stamper; January 27, 1859, survey No. ______ of 75 acres was made for John Holcomb; October 2, 1873, survey No. 51871 of 50 acres was made for John Holcomb; January 13, 1884, survey No. 59532 of 100 acres was made for John Holcomb. No system was observed in making these surveys, there are spaces between them seemingly covered by no survey, and at other places they overlap each other, and some of this land is in as many as four of them. It is claimed John D. Holcomb has by proper conveyances become the owner of all of these various surveys, and we have assumed that is true.

These surveys are generally located in the valley of Line Fork creek and the valleys of Holcomb branch and the other streams that flow into Line Fork creek. When they were made that was perhaps all that was considered of any value, but later the idea came that "Thar's gold in them thar hills," or some similar thought, and, when Henderson Holcomb made conveyance to John Holcomb and he in turn made conveyance to John D. Holcomb, they undertook to stretch these surveys and to cover and include all the land between the Limestone cliffs on the south and the top of the ridge between Line Fork creek and Defeated creek on the north and these are the deeds that have been held void for lack of definite description.

Effect of These Stretching Efforts.

In Brown v. White, 153 Ky. 452, 156 S.W. 96, 98, an effort to stretch had been made of which the court said: "Having no record title to this tract, the Crosslands could not acquire title against the superior title holder by merely claiming beyond their deeded boundary, *** not having actually entered on the strip in controversy and held actual possession of it for the statutory period, they acquired no title to this strip by adverse possession." To same effect, see Fairchild v. Mayo, 232 Ky. 778, 24 S.W.2d 599; Combs v. Jones, 244 Ky. 512, 51 S.W.2d 672.

The reason underlying these decisions is that, when an entry is made under a deed, a patent, or even under a bare color of title, it is presumed to have been made in conformity thereto, and the actual possession of the entrant will by construction be extended to the boundary of such deed patent, or color, if by so doing the possession of another is not invaded, but the same rule that carries an actual possession to the boundary of the deed, patent, or color stops such possession at the boundary when he undertakes to stretch. An entrant cannot claim both under and against his deed, patent, or color. Hence claims of an adverse possession by John D. Holcomb under patents, deeds, or color elsewhere in this processioned boundary are limited to the boundaries of them, and they do not reach the land in dispute, but he has a fenced and cultivated tract (about 12 acres) within this disputed territory, and, while he has no color of title, he does have a marked boundary around this disputed property, and...