Louisville Cooperage Co. v. Collins

• Decision Date: 09 February 1926
• Citation: 212 Ky. 819
• Parties: Louisville Cooperage Company v. Collins, et al.
• Court: United States State Supreme Court — District of Kentucky

Page 819

212 Ky. 819

Louisville Cooperage Company v. Collins, et al.

Court of Appeals of Kentucky.

Decided February 9, 1926.

1. New Trial — Introduction of Patent, Invalidating One on which Defense had Depended, Held to Constitute Surprise Warranting New Trial. — In action for removal of timber involving title to land, introduction at trial of early patent affecting validity of patent under which defendants claimed, and of which defendants had no notice, held to constitute surprise entitling defendants to new trial.

2. New Trial — Defendants Held Not Required to Take constructive Notice of Patent Under Which no One Claimed. — Defendants, in action for removal of timber involving title to land, claiming under patent issued in 1846, held not required to take constructive notice of patent issued in 1776, covering same land, where neither party claimed title under it, and no one was in possession under it.

3. Adverse Possession — Extent of Title by Adverse Possession Under Color of Title Stated. — Where one claiming under color of title is in actual possession of part of land within well-defined boundary, law, by construction, carries possession to full extent of boundary, except as against actual adverse possession, and except that as against superior title, rule will not prevail unless entry and possession be upon the interference.

4. Trial — Instruction as to Adverse Possession Held Improper Without Defining Extent of Possession. — In action involving title to land, where there was no evidence that plaintiffs had fenced and lived on land involved, instruction that plaintiffs were entitled to verdict if they had been in adverse possession of land for 15 years, "having same under fence and living upon same," held error, in absence of instruction defining extent of possession.

Appeal from Letcher Circuit Court.

O'REAR, FOWLER & WALLACE, J. WOODWARD, HOWARD and FIELDS, DAY & FIELDS for appellants.

R. MONROE FIELDS, JOHN D. CARROLL and JOHN S. CARROLL for appellees.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Reversing.

W.B. Collins and wife brought this suit against the Louisville Cooperage Company, Polly Ann Lusk, John Banks and Nat Williams, alleging in their petition that they were the owners and in actual possession of a tract of land in Letcher county, described in the petition, and that the defendants had entered upon the land without right and cut down and removed therefrom a large amount of timber. The defendants by their answer denied that the plaintiffs were the owners or in possession of the land from which the timber was cut. They alleged that Polly Ann Lusk was the owner of the body of land described in the answer and that the timber was cut from her land. The only evidence of title which the plaintiffs produced on the trial was a deed made to them on October 26, 1903, by W.B. Collins' father and mother, and W.B. Collins testified that he had settled on the land seven or eight years before this and had since lived on it, claiming the land by adverse possession to the extent of the boundary in the deed. The only evidence of title the defendants introduced was a deed made to Polly Ann Lusk on May 9, 1916, by the widow and children of her father, John W. Lusk, deceased, and she showed by the evidence that the land in controversy was within her deed. The jury found for the plaintiffs in the sum of $2,000.00. The defendants appeal.

As the plaintiffs showed no title from the Commonwealth their whole right to recover rests upon adverse possession. The land was uninclosed and in timber and the first question in the case was as to the location of the lines of their deed. The controversy is illustrated in the following map:

NOTE: MAP IS ELECTRONICALLY NON-TRANSFERABLE.

Beginning at a point which is undisputed the calls of Collins' deed run to the point marked 1 on the map. Then these calls follow: Thence a straight line to a corner of a 400-acre survey made in the name of Allen Christian; thence with said line to the top of the hill between Limefork and Kentucky river; thence around the top of said hill to the dividing spur between Calvin Collins and Letcher Collins and down said spur to Kentucky river and on a sycamore." The corner of the Allen Christian 400-acre survey is a 2 on the map and the west end of it is shown by lines 5, 9, 8, 2, 6, 10 and 7. The defendants claim that Collins' line should run from 2 to 8 with the lines of this survey to the spur and thence with the spur back to the river. On the other hand, he claims that he does not stop at the corner of the Allen Christian survey, but runs straight ahead to the top of the divide between the Kentucky river and Limefork at 3, and then with the top of the ridge to the spur between Letcher Collins and Calvin Collins at 4, thence down the spur to the river. If his line is so run, as will be seen from the map, he runs directly across the Allen Christian survey and a part of his land lies on each side of this survey and a part within it. He does not connect in any way with the Allen Christian...