Mineral Development Co. v. Tuggle Land & Timber Co.

• Court: U.S. Court of Appeals — Sixth Circuit
• Citation: Mineral Development Co. v. Tuggle Land & Timber Co., 151 F. 450 (6th Cir. 1907)
• Decision Date: 18 March 1907
• Docket Number: 1,600.
• Parties: MINERAL DEVELOPMENT CO. et al. v. TUGGLE LAND & TIMBER CO.

151 F. 450

MINERAL DEVELOPMENT CO. et al. v. TUGGLE LAND & TIMBER CO.

No. 1,600.

United States Court of Appeals, Sixth Circuit.

March 18, 1907

S. B Dishman and D. D. Field, for appellant.

J. D Black and J. W. Alcorn, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was a suit in equity instituted by the Tuggle Land & Timber Company, claiming to be the owner of certain trees on two tracts of land in Letcher county, Ky.-- one containing 404 acres, and the other 1749 acres-- to enjoin the Mineral Development Company and A.B. Asher from denying, preventing or in any wise interfering with its right to own, cut, and market the said trees. The plaintiff claimed title by intermediate conveyances from one Isom Stamper, under patent No. 10,899, issued to him by the commonwealth of Kentucky February 5, 1848, for 12,000 acres of land. The plaintiff claimed that the two tracts of timber land described lay wholly within the boundaries of the Stamper patent of 12,000 acres; while the defendants contended that they did not lie within the said patent, but wholly outside the same, and based their claim of ownership to the timber on patents junior in date to the Stamper patent of 12,000 acres. The whole controversy turns upon the true location of the Stamper patent of 12,000 acres. If the lines of this patent are located according to the contention of the plaintiff below, it is the owner of all the trees which it claims, and the defendants are without title to any of the five tracts or the timber thereon, which they claim under patents junior to that of Isom Stamper. On the other hand, if the defendants' contention as to the location of the Stamper patent is correct, the plaintiff below has no claim whatever to any of the trees on the five tracts claimed by the defendants under patents junior to that of Isom Stamper. The court below held in favor of the contention of the plaintiff, namely, that the Stamper patent of 12,000 acres embraced within its boundaries the 404-acre and the 1,749-acre tracts, on which the timber in dispute is located. From this the defendants below appealed.

The original certificate upon which the Isom Stamper patent was based, describes the land as surveyed July 24, 1846, for Isom Stamper, assignee of Elijah Combs, 12,000 acres of land by virtue of part of a Perry county court land warrant, No. 360, on Turkey creek, of the Line Fork of the North Fork of the Kentucky river, and bounded as follows, to wit:

'Beginning on three chestnuts and chestnut oak near the head of the Pigeon Fork; thence running the dividing ridge between Turkey creek and the Line Fork to the Defeated Branch; thence the dividing ridge between the Defeated Branch and Turkey creek; thence S. 10 degrees W., 68 poles, to a chestnut; thence S. 10 degrees E., 98 poles, to a chestnut oak and sarvis, S. 68 degrees W., 125 poles, to a stake; thence S. 5 degrees E., 100 poles, to a stake; thence S. 68 degrees W., 2,000 poles, to a stake; thence S. 40 degrees W., 320 poles, to a stake; thence north 1,328 poles to a stake; thence N. 77 degrees E., 1,900 poles, to a stake; thence S. 33 degrees E., 600 poles, to the beginning.'

Accompanying this certificate was a plat in the following form:

(Image Omitted)

The patent upon this plat and certificate was issued February 5, 1848, and describes the land as--

'Beginning on three chestnuts and chestnut oak near the head of the Pigeon Fork; thence running the dividing ridge between Turkey creek and the Line Fork to the Defeated Branch; thence the dividing ridge between the Defeated Branch and Turkey creek, S. 10 degrees W., 68 poles, to a chestnut; thence S. 10 degrees E., 98 poles, to a chestnut oak and sarvis; thence S. 68 degrees W., 125 poles, to a stake; thence S. 5 degrees E., 100 poles, to a stake; thence S. 68 degrees W., 2,000 poles, to a stake; thence S. 40 degrees W., 320 poles, to a stake; thence north 1,328 poles to a stake; thence N. 77 degrees E., 1,900 poles, to a stake; thence S. 33 degrees E., 600 poles, to the beginning.'

It will be observed that the description of the 12,000 acre Stamper tract, as given in the certificate of survey, is the same in all respects as that given in the patent except that the word 'thence' appears in the certificate between the words 'Turkey creek' and the letters and figures 'S. 10 degrees W,' but does not appear in the patent. The apparent object of this omission, for reasons which will appear more fully later, was to enable the language descriptive of the dividing ridges to be read parenthetically, thus:

'Beginning on three chestnuts and chestnut oak near the head of Pigeon Fork; thence (running the dividing ridge between Turkey creek and the Line Fork to the Defeated Branch; thence the dividing ridge between the Defeated Branch and Turkey creek), S. 10 degrees W., 68 poles, to a chestnut; thence S. 10 degrees E., 98 poles, to a chestnut oak and sarvis,' etc.

A comparison of the description given in the certificate of survey, with the plat made from it and recorded, at once discloses the fact that there is apparently a discrepancy between the description and the plat; for while the description contains apparently eleven lines, the plat as recorded, contains but nine, and these nine are the lines defined by courses and distances which are included in the description, and read as follows:

'Beginning on three chestnuts and chestnut oak near the head of Pigeon Fork; * * * thence S. 10 degrees W., 68 poles, to a chestnut; thence S. 10 degrees E., 98 poles, to a chestnut oak and sarvis; thence S. 68 degrees W., 125 poles, to a

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