Miller v. Cumberland Petroleum Co.

• Decision Date: 25 May 1937
• Citation: 269 Ky. 525,108 S.W.2d 514
• Parties: MILLER v. CUMBERLAND PETROLEUM CO. et al.
• Court: Kentucky Court of Appeals

108 S.W.2d 514

269 Ky. 525

MILLER v. CUMBERLAND PETROLEUM CO. et al.

Court of Appeals of Kentucky

May 25, 1937

Rehearing Denied Sept. 28, 1937.

Appeal from Circuit Court, Ohio County.

Action by the Cumberland Petroleum Company and another against M. W Miller and another, wherein the trustees of the East Fork Baptist Church intervened. From a decree for interveners defendant Miller appeals.

Reversed and remanded, with directions.

W. E. Aud and J. R. Higdon, both of Owensboro, for appellant.

O. L Fowler, of Owensboro, John A. Needing, of Findlay, Ohio, and A. D. Kirk, of Owensboro, and Clarence Bartlett, of Hartford for appellees.

CLAY Justice.

The Cumberland Petroleum Company and the Kemrow Company, who held an oil lease on a lot 40 feet square located near Oaks Station in Ohio county, brought this suit against M. W. Miller and H. C. Gardenhire to enjoin them from trespassing on the lot, and from interfering with the development of the lease. Miller filed an answer and counterclaim claiming ownership of the lot, and Gardenhire asserted his right to enter upon the premises by virtue of a lease executed to him by Miller. The trustees of the East Fork Baptist Church intervened and asserted ownership by deed, and also by adverse possession. On final hearing the chancellor adjudged that the lot in controversy belonged to the trustees of the church, and enjoined Miller and Gardenhire from interfering with its development. Miller has appealed.

The admitted facts may be summarized as follows: The lot in controversy was conveyed to Wiley M. Johnson by Mason L. Jones and wife on December 2, 1891. On September 27, 1894, Wiley M. Johnson conveyed the lot to A. R. Oller. On September 27, 1897, Oller sold the lot to appellant, Miller, and J. W. Peckenpaugh. Peckenpaugh sold his interest in the lot to appellant, Miller, by deed dated September 19, 1934. During the ownership of Johnson and Oller, they operated a blacksmith's shop on the property. During the ownership of Miller and Peckenpaugh, they operated a grist mill on the property. During the year 1904, the machinery and building were removed from the lot. After that, Miller and Peckenpaugh did not occupy the property. On the other hand, M. L. Jones and wife, appellant's predecessors in title, conveyed the church lot to the trustees of the church by deed dated December 22, 1894. In other words, the church and appellant derived their titles from a common grantor, and the conveyance of the trustees of the church was not made until three years after the conveyance to Wiley M. Johnson, appellant's predecessor in title. The deed to the trustees of the church does not include the lot in controversy, and the lot adjoins the church lot on its extreme southwest. The entire church lot, including the lot in controversy, has been inclosed by fences on three sides, and by the public road on the other side, for about 40 years.

From the foregoing, it will be seen that the legal title to the lot is in Miller, and the only question for consideration is whether the trustees of the church acquired title by adverse possession? On this question the evidence for the church is as follows: After the mill building and machinery were removed, the members of the congregation cleaned up the lot filled up the well used in connection with the mill, and occasionally trimmed the small shade trees growing on the lot. Now and then, when the weather permitted, Sunday school services were held on...