Mahoning Coal Co. v. Dowling

• Decision Date: 21 January 1910
• Citation: 124 S.W. 370
• Parties: MAHONING COAL CO. v. DOWLING et al.
• Court: Kentucky Court of Appeals

124 S.W. 370

MAHONING COAL CO. v. DOWLING et al.

Court of Appeals of Kentucky.

January 21, 1910

Appeal from Circuit Court, Pulaski County.

"Not to be officially reported."

Action by Ed Dowling and others against the Mahoning Coal Company. From a verdict for plaintiffs, defendant appeals. Affirmed.

Denton & Wallace, for appellant.

O. H Waddle & Son, for appellees.

CARROLL J.

This action was instituted in the Pulaski circuit court by appellees against the appellant to recover possession of a tract of land containing 150 acres, and upon the conclusion of all the evidence the court instructed the jury to return a verdict in favor of the appellee. So that the only question now before us is the correctness of the ruling of the court upon the evidence.

The facts are substantially these: Prior to 1881 a patent issued to Stewart & Porter for a large tract of land in Pulaski county. This patent did not describe the senior patents, of which there were several, within its exterior boundary. Some time before the date mentioned, John Garey, one of the appellees, and J. W. F. Parker and Joe C. Parker, became the owners of this Stewart & Porter survey; Garey being the owner of one-third thereof and the Parkers two-thirds. In August 1881, the Parkers for a valuable consideration conveyed to Garey all their right, title, and interest in the Stewart &amp Porter land. The deed conveying the land did not reserve to the Parkers any part or interest in it. The appellees are the vendees of Garey, and the appellant is the vendee of the Parkers. The contention is made on behalf of the appellant that, although no interest was reserved in the conveyance mentioned, yet at the time it was made it was understood and agreed between the parties that 150 acres included in the Stewart & Porter patent which had been surveyed in the name of M. E. Parker was reserved and did not pass by the conveyance. This 150 acres is the land in controversy. The record presents two issues: First, whether or not this 150-acre survey was reserved; and, second, did the Parkers and their vendee, the appellant company, have the adverse possession of it for more than 15 years before this suit was instituted by appellees for its recovery?

It seems that in March, 1881, the decision of this court in the case of Hamilton v. Fugett, 81 Ky. 366, involved in great doubt and uncertainty the validity of patents that did not describe excluded senior patents, and the effect of this decision was known to the Parkers and Garey at the time the conveyance was made. The Parkers contend that being apprehensive the Stewart & Porter patent was void, and for the purpose of avoiding its effect, they had procured several persons to survey for their benefit boundaries of land within this Stewart & Porter patent with the intention of holding the land under these surveys in the event that the Stewart &amp Porter patent should be held invalid. And that, with this purpose in view, there was surveyed at their instance to M. E. Parker in June, 1881, a boundary containing 150 acres, being the same in controversy, and that afterwards in 1884 a patent for this survey was issued to M. E. Parker. It is their further insistence that it was understood and agreed between themselves and Garey at the time they made the deed to him that this M. E. Parker survey was excepted from...