Noe v. Russell

• Decision Date: 26 March 1926
• Citation: 281 S.W. 1033,213 Ky. 746
• Parties: NOE v. RUSSELL ET AL.
• Court: Kentucky Court of Appeals

281 S.W. 1033

213 Ky. 746

NOE v. RUSSELL ET AL.

Court of Appeals of Kentucky.

March 26, 1926

Appeal from Circuit Court, Lee County.

Action by Lafayette Noe against Frank B. Russell and others. Judgment for defendants, and plaintiff appeals. Affirmed.

S. P Stamper, of Beattyville, for appellant.

Chester Gourley, of Miami, Fla., and Gourley, Gourley & Parrish, of Beattyville, for appellees.

McCANDLESS J.

Plaintiff claims possessory title to a tract of 15 acres of land situated on a ridge east of Little Sinking creek in Lee county. Included in this boundary is a long, narrow strip of 3 or 4 acres, lying between the crest of the ridge, and a parallel sandstone cliff, a short distance below, which is claimed by defendants, and upon which they have drilled three oil wells. In this action plaintiff seeks to recover a certain interest in the oil and gas produced therefrom. At the close of his evidence the court gave a peremptory instruction for the defendants, and he has appealed from the judgment dismissing his petition.

It appears that prior to 1900 E. W. Cox, plaintiff's vendor owned a tract of land of 70 acres lying contiguous to this tract, and also had two deeds embracing as much of the 15-acre tract as lay west of Sand Cliff, and a third deed to a larger boundary in which it was recited that he relinquished this 15 acres in favor of the grantors in that deed. It further appears that in a suit in this court ( Ashcraft v. Cox, 76 S.W. 121, 25 Ky. Law Rep. 545) it was adjudged that the sandstone cliff was his eastern line, and, as this tract was then in timber and uninclosed it is clear that he had neither possession of nor title to the disputed land. In October, 1900, Cox conveyed to one Smith about one-quarter of an acre within the tract claimed by plaintiff, but below the sand cliff. On this Smith erected a storehouse, and in November, 1901, Cox sold and conveyed to H. J. Crabtree a recited boundary of 15 acres, embracing the land in dispute and also the Smith storehouse and lot. H. J. Crabtree converted this store building into a dwelling and moved therein in the fall of 1902, and this is the beginning of plaintiff's claim of possession under color of title. Also, in the year 1900 Cox sold the 70-acre tract to Gen. A. Dennis, who immediately moved thereon and lived upon it until the year 1911.

H. J Crabtree testifies that he lived on the 15-acre tract for 18 months; that he moved off and it was vacant for a time; he made a verbal sale of it to J. D. Crabtree, and J. D. Crabtree sold in the same way to one Adams, who likewise sold to one Woosley, and Woosley sold to General A. Dennis, the owner of the 70-acre tract, a deed of conveyance being made to Dennis in March, 1905, by H. J. Crabtree, who still held the legal title. J. D. Crabtree never lived on the land, but had a tenant who lived on it one summer and fall, and he thinks this was just before he transferred the land to Adams. It does not appear that any one else occupied the premises until the conveyance to Dennis in 1905. Dennis states that he had tenants on the place, but the building was removed in 1907, and no one lived on it thereafter, although he says he cut the timber on the land afterward, and perhaps cultivated some of it, and that he claimed it as his own. He sold both tracts to Charley Beech in 1911, and placed his son in possession and removed from the county. On his return 11 months later one Andy Cox was living on the place, but there is an entire failure of proof to show any later occupancy even of the 70 acres until 1914, when Beech...