Maynard v. Lowe

• Decision Date: 25 October 1929
• Citation: 21 S.W.2d 285,231 Ky. 258
• Parties: MAYNARD et ux. v. LOWE.
• Court: Kentucky Court of Appeals

21 S.W.2d 285

231 Ky. 258

MAYNARD et ux. v. LOWE.

Court of Appeals of Kentucky

October 25, 1929

Appeal from Circuit Court, Pike County.

Action by Flem C. Maynard and wife against R. L. Williamson and another, who filed cross-petition against J. M. Lowe. From an adverse judgment, plaintiffs appeal. Reversed, with directions.

W. K Steele, of Pikeville, for appellants.

Stratton & Stephenson, of Pikeville, for appellee.

TINSLEY C.

On July 17, 1920, the appellant Flem Maynard and his wife, Belle Maynard, by deed of that date sold to R. L. Williamson and W T. Varney a tract of land in Pike county on the head of Scott's branch of Brushy fork of John's creek containing 50 acres more or less. The consideration for this conveyance was $20 per acre, of which the sum of $500 was paid in cash, and the balance was to be paid on or before April 8, 1921. On March 12, 1924, appellant instituted this suit against Williamson and Varney to recover the balance of purchase money and to subject the land to its payment; it being alleged in the petition that there were 57 acres of the land and the balance of purchase money due therefor was $640. On November 17, 1924, Williamson and Varney filed an answer and counterclaim, to which a demurrer was sustained, and on November 22, 1924, they filed an amended answer, which was made a crosspetition against the appellee, J. M. Lowe, in which, among other things, they alleged that, at the time of the execution of the deed by appellant and his wife to them, Lowe was claiming the land and the title thereto, and was in the possession thereof, and had held the actual adverse possession for more than 15 years; that appellant had never put them in possession of the land, and was unable so to do. They asked that Lowe be made a party defendant and be required to set up his title. On April 7, 1925, Lowe filed his answer, in which he denied appellant's title, pleaded title in himself, and further pleaded that for more than 15 years he had been in the actual, open, uninterrupted, exclusive, hostile, and adverse possession of the land, and prayed that his title thereto be quieted. Appropriate pleadings completed the issue, and upon submission of the case the lower court adjudged Lowe the owner of the land in controversy, and dismissed appellant's petition. From that judgment, Maynard has appealed.

Maynard claims under a patent issued to J. M. Jackson for 100 acres, dated October 13, 1854. Appellee claims under three patents: (1) A patent to Isaac Mainer for 100 acres, dated August 21, 1844; (2) a patent to Benjamin Mainer for 75 acres, issued February 24, 1847; and (3) a patent issued to Henderson Scott for 200 acres, on March 18, 1873. During the pendency of the action, Lon Ford, a surveyor of Pike county, was agreed upon by the parties to survey and locate on the ground the patents under which they respectively claimed. His map, filed with his deposition, shows that appellant's Jackson patent laps upon both the Isaac Mainer and Benjamin Mainer patents, and that appellee's Scott patent laps upon the Jackson patent. It is conceded that the location of these patents, as made by the surveyor, is correct; and in his brief here appellant further concedes that, as to that part of the land in controversy which lies within the Isaac Mainer and Benjamin Mainer patents, he is without title. So that the controversy concerns only the land embraced within the lap of the Jackson patent and the Scott patent, and this lap is shown to contain 31.2 acres.

The Jackson survey and patent lies on both Big branch and Scott's branch. The ridge making the watershed between these branches crosses the patent boundary in a general northeast and southwest direction. The land on the east side of this ridge is the land in controversy. It is wild, unimproved, rough, mountain land. The Scott survey and patent lies wholly on the east side of this watershed, or dividing ridge, and its lines practically follow the crest of the ridge from the south side to the north side of the Jackson survey. All of appellant's improvements within the Jackson patent are on the west side of this dividing ridge; neither he nor any predecessor in title has ever cleared or inclosed any of the land on the east side of the ridge. All of appellee's clearings, improvements, and inclosures are within his senior Mainer surveys, or within his Scott survey outside of the lap of the Scott and Jackson surveys.

By statutory enactment, and by a long line of decisions of this court, a junior patent which embraces land covered by a senior patent is void to the extent of the interference, and actual possession on that part of the junior patent, not covered by the senior patent, will not be extended so as to cover the land within the interference, without an actual occupancy or inclosure of it. Jones v. McCauley's Heirs, 2 Duv. 14; Trimble v. Smith, 4 Bibb, 257; Patton v. Stewart, 173 Ky. 220, 190 S.W. 1062; Combs v. Adams, 182 Ky. 762, 207 S.W. 691. Consequently, appellee's possession of the Scott survey outside of the lap of it and the Jackson survey, no matter how long continued, gave him no possession of that part of the Jackson survey in controversy, since there is no proof that he, or any person under whom he claims, ever at any time had an improvement within the lap, or had any part of it inclosed, or exercised any control over it, except that they did, occasionally, enter thereon and cut and remove timber from it. It has been repeatedly held by this court that occasional entries by the junior patentee and his vendees within the lap, for the purpose of cutting and removing timber, is not a sufficient possession to oust...