Hollowell v. Caldwell County

• Decision Date: 02 May 1941
• Citation: 288 Ky. 89,155 S.W.2d 481
• Parties: HOLLOWELL et al. v. CALDWELL COUNTY et al. SAME v. HUGHETT et ux. HUGHETT et ux. v. CALDWELL COUNTY et al.
• Court: Kentucky Court of Appeals

155 S.W.2d 481

288 Ky. 89

HOLLOWELL et al. v. CALDWELL COUNTY et al.

SAME v. HUGHETT et ux.

HUGHETT et ux. v. CALDWELL COUNTY et al.

Court of Appeals of Kentucky

May 2, 1941

Rehearing Denied Nov. 28, 1941.

Appeal from Circuit Court, Caldwell County; H. F. S. Bailey, Judge.

Action by John Hughett and wife against Caldwell County, Mary F Hollowell and others to quiet title to small tract of land. From judgment entered, the plaintiffs and defendants Mary F Hollowell and other heirs of John W. Hollowell, deceased, and defendant L. J. Hobby appeal.

Affirmed in part, and reversed in part.

One operating mineral lease under contracts with lessees was not precluded from acquiring title to small tract of land and minerals therein adverse to lessees, where it appeared that one operating mineral lease was not a tenant so far as small tract in controversy was concerned.

George O. Eldred and Marshall P. Eldred, both of Princeton, and Earle Nichols, of Madisonville, for Caldwell County.

S.D Hodge, R. W. Lisanby, and Alvin Lisanby, all of Princeton for Mary F. Hollowell, and others.

C. A. Pepper, of Princeton, for John Hughett and others.

SIMS, Commissioner.

This litigation involves the title to the minerals in a small tract of land of 1 acre and 14 square yards, which is located in Caldwell County about 3 miles north of Princeton. The land in dispute lies between the old and the new Wilson Warehouse Roads and includes the new road, a portion of which the county ceased using as a road in 1937. The record shows that a rich deposit of fluorspar underlays land abutting the new road on the west, and it is thought the minerals under the land in controversy are of great value.

Caldwell County (hereinafter referred to as the County) is asserting title to the minerals in a strip 50 feet wide extending along the entire western boundary of this small tract, which strip has been used by the County as a road since 1918. The widow and heirs of John W. Hollowell, and L. J. Hobby are claiming the minerals under this entire tract; also, John Hughett and wife are claiming the minerals under all the land in dispute.

The Hughetts instituted this action to quiet their title against the County and H. W. Morse, to whom it had leased the minerals under the roadway, and against the Hollowell heirs and Hobby. By appropriate pleadings the County denied the title of the other claimants to the minerals in the 50-foot roadway and asserted title thereto. The Hollowell heirs and Hobby denied the title of the Hughetts and of the County and pleaded they had been in adverse possession of these minerals for more than 15 years under a lease R. R. Morgan executed to John W. Hollowell in 1917. After much proof was taken, the chancellor adjudged the County had a fee-simple title by adverse possession to the 50-foot strip used as a roadway, and that all the remainder of the acre and 14 square yards was owned in fee by Hughett. The Hollowell heirs and Hobby prosecute an appeal against the County and the Hughetts; while the Hughetts prosecute an appeal against the County.

C. C. Williamson in 1910 conveyed to R. R. Morgan a tract of 125 acres (referred to throughout the record as the Williamson tract), the eastern boundary of which was on the Old Wilson Warehouse Road. We gather from the record that Morgan contracted to sell this tract to W. W. Smith, who moved on the land without title papers and remained thereon about two years; that not being able to pay for the land, Smith moved off and surrendered it back to Morgan. The Wilson Warehouse Road went over quite a hill near the home of Rufe Tyrie, and to divert the road to the west in order to avoid this hill, the County in 1918 bought 1 acre and 14 square yards from Smith, who was then occupying the 125-acre tract. This small parcel is in the shape of a diamond and is described by metes and bounds. The price was $16 per acre and the County paid Smith $17.40 therefor. On May 4, 1918, a deed was executed by Smith and wife to the County and Rufe Tyrie, which recites Tyrie was to have all the land conveyed therein except 50 feet extending the full length of the tract on its western side "which 50 feet is to be used for public road and is hereby conveyed to the County for road purposes". The habendum clause in this deed recites the land is conveyed with covenant of general warranty of title "unto it the said second party and its heirs and assigns, etc., forever". The instrument separately names the County as the party of the second part and also separately names Rufe Tyrie as such.

Soon after obtaining this deed the County constructed a road on the 50-foot strip conveyed it (which is referred to in the record as the New Wilson Warehouse Road), and maintained it as such from 1918 to 1937. By reason of mining operations of the Hollowells and Hobby on the land adjoining this new road on the west, the roadway caved in to such an extent in the spring of 1937 that the County ceased using the road at this point and a detour was constructed. The County executed a mineral lease to H. W. Morse, but we are unable to find it in the record and cannot ascertain whether part or all of its 50-foot roadway was thus leased. However, it is not necessary in deciding this case for us to know just what part of the roadway the County leased to Morse for mineral development.

Smith had no title to the land conveyed the County and Tyrie but same was in R. R. Morgan. Although not parties to the deed, and with their names nowhere appearing in the body thereof, R. R. Morgan and wife signed and acknowledged the deed with Smith and wife, evidently thinking this would pass title to the County and Tyrie. Of course it did not. Parsons v. Justice, 163 Ky. 737, 174 S.W. 725; Goodrum's Guardian v. Kelsey, 244 Ky. 349, 50 S.W.2d 932. The County admits it obtained no title to the roadway by virtue of this deed, but argues that it occupied and held same from 1918 to 1937 under color of title by reason of the deed, therefore its adverse possession for more than 15 years has ripened into a fee-simple title in the roadway. It further contends that the deed which lends color of title to its adverse possession delineates the extent of the title it holds adversely, and that the words appearing in the deed "which 50 feet is to be used for public road and is hereby conveyed to the County for road purposes" is a covenant and not a condition subsequent. Much reliance is placed by the County in Williams v. Johnson, 284 Ky. 23, 143 S.W.2d 738.

The Williams case calls attention to the fact that the intention of the parties is controlling in determining whether the controversial language in the deed shall be construed to be a covenant or a condition subsequent. In the instant case the County only paid $17.40 for the entire acre and 14 square yards. After obtaining the 50-foot strip on the western edge thereof for its road, the County let the remainder of the land be conveyed to Tyrie by the same deed in which the 50-foot strip was conveyed it. This was evidently done so that Tyrie, whose land abutted the old road, would likewise have land abutting the new road and have the same access thereto as he had to the old road. All the...