Kentucky Diamond Mining & Developing Co. v. Kentucky Transvaal Diamond Co.
| Decision Date | 07 December 1910 |
| Parties | KENTUCKY DIAMOND MINING & DEVELOPING CO. v. KENTUCKY TRANSVAAL DIAMOND CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Elliott County.
Action between the Kentucky Diamond Mining & Developing Company and the Kentucky Transvaal Diamond Company. From a judgment for the latter, the former appeals. Reversed and remanded.
M. M Redwine and E. Hogg, for appellant.
Hazelrigg & Hazelrigg, for appellee.
This appeal presents for decision the proper construction of the following deed: "This indenture of bargain and sale made and entered into this 9th day of February A. D. 1876, by and between Charles Ison and Sarah A. Ison, his wife, of the county of Elliott in the state of Kentucky, party of the first part, and John T. Ratcliff of the county of Carter and state aforesaid, party of the second part, witnesseth: That for and in consideration of the sum of four hundred and fifty dollars in hand paid, the receipt of which is hereby acknowledged, hath bargained, sold and by these presents bargain, sell and convey to the party of the second part the following described realty, viz.: All the mineral and timber on the following described tract or parcel of land with the following exceptions: [Here follows boundary], excluding all the rail timber and all the deeded or sold and all other timber and coal for the use of the farm and the Ison reserves the right to clear any land within said boundary granting the said party of the second part the right of ingress and egress hereto with stone for building purposes, and to have and to hold the above described mineral, timber, etc., his heirs and assigns forever and the party of the first part warrants and defends the title aforesaid." In 1891 Ratcliff conveyed one-half of what he took by the deed to Taylor Warnock, and in the year 1902 he and Warnock conveyed the property to the Kentucky Diamond Mining Company which now has all the rights that Ratcliff acquired by the deed quoted. It insists that it takes by the deed title to the diamonds on the land, if there are any. The Kentucky Transvaal Diamond Company claims that the grantee under the deed took no title to diamonds on the land, and the question before us is simply: Do diamonds pass by the deed?
The proof for the plaintiff is to the effect that Ratcliff from the date of his deed was prospecting on the land for diamonds, and that Ison and his sons assisted him in his search, and in the work that he did. It is also shown that the Kentucky Diamond Mining & Developing Company has been at work on the land trying to find diamonds since the property was transferred to it. On the other hand, the proof for the defendant is to the effect that Ratcliff thought there was silver on the land; that he was prospecting for silver, and not for diamonds; and...
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