Perry v. Eagle Coal Co.

• Citation: 170 Ky. 824
• Parties: Perry v. Eagle Coal Company.
• Decision Date: 16 June 1916
• Court: Court of Appeals of Kentucky

170 Ky. 824

Perry v. Eagle Coal Company.

Court of Appeals of Kentucky.

Decided June 16, 1916.

Appeal from Pulaski Circuit Court.

VIRGIL P. SMITH for appellant.

O. K. WADDLE & SONS for appellee.

OPINION OF THE COURT BY JUDGE HURT. — Affirming.

On the 27th day of July, 1906, the appellee instituted this suit against appellant in the Pulaski circuit court. The petition averred that the appellee was the owner of a large tract of land, which was described by metes and bounds; that it became the owner of it by a regular chain of title from the Commonwealth of Kentucky; that the Barren Fork Mining & Coal Co. was its vendor; that while the last named company was the owner of the tract of land, it instituted a suit against the appellant, in which it alleged that the appellant had entered upon the tract of land and unlawfully taken possession and claimed to own one hundred acres of the land, which was described by metes and bounds, and sought in the suit to recover the possession of the one hundred acres of land, and that its title to the land as against appellant and others, who were claiming other portions of it, be quieted; that on the 26th day of April, 1892, the appellant filed an answer, in which the ownership of the land by the Barren Fork Mining & Coal Co. was denied, and alleged that he and those under whom he claimed had had the adverse possession of it for the period of more than fifteen years before the commencement of the action; that a reply was filed to the answer, and the issue formed as to the ownership of the land and the right of the Barren Fork Mining & Coal Co. to recover it; that the cause was submitted for trial at the March term of the court, in the year 1894, and the court adjudged that the Barren Fork Mining & Coal Co. recover the land of appellant, except to the extent that the appellant had any enclosure of the lands on the 27th day of January, 1881, and resided thereon, and to the extent of such enclosure, it was adjudged that appellant was entitled to hold same against the Mining & Coal Co.; that for the purpose of ascertaining the portion of the lands to which appellant was entitled by reason of the enclosure and occupancy of same on the date above mentioned, a commissioner of the court was directed to make a survey of the lands to which appellant was entitled under the judgment of the court; that the commissioner made a report, whereupon it was adjudged that the appellant had enclosed, occupied and was the owner of fifty acres of the land, which is described by metes and bounds; that the petition, exhibits and judgments in the suit are referred to and made a part of the petition in this action; that the judgments are relied upon as a bar to any claim of ownership by appellant of any part of the entire tract of land; that since the rendition of the judgment mentioned, the appellee has become the owner of the entire tract of land, including the part recovered from the appellant, by a regular chain of title from the Barren Fork Mining & Coal Co.; that it is the owner of same; that it is in possession of a large portion of the tract and is entitled to the possession of all of it; that about three years before the institution of this suit, and without its knowledge and consent and while appellant was still residing upon the fifty acres of land, which was adjudged to be his, he fenced up and has continued to extend his fencing and to enclose and take into his possession the lands without and adjoining the fifty acres, and that he is now in the possession of and claiming to own about fifty acres of the land, which is in said tract, but without the fifty acres of which he was adjudged to be the owner; that the part fenced by him includes a part of what was adjudged to be recovered from him in the action of the Barren Fork Mining & Coal Co. against him, and, also, included some of the adjoining land of appellee within its boundary heretofore set out in the petition; that appellant is wrongfully and unlawfully claiming to be the owner of the land so enclosed by him and refuses to deliver the possession. The prayer of the petition was to recover of appellant all that portion of the land without the fifty acres allotted to him in the judgment mentioned, and that he be compelled to surrender possession of it, and that its title to it be quieted, and that he be enjoined from claiming or occupying any part of the land, and from extending his fences or taking into his possession or using any portion of the land, and for all general relief.

Before answering, the appellant filed a written motion to require the appellee to elect whether it would prosecute its action for a recovery of the land, to quiet its title, or to enjoin appellant from claiming or occupying it. This motion, it seems, was never passed upon at any time by the court and is therefore deemed to have been waived. Thereafter, appellant filed his answer, consisting of five paragraphs. The first paragraph put in issue the ownership of the tract of land set out and described in the petition, and denied that the Barren Fork Mining & Coal Co. was the owner of it on the 15th day of February, 1890. He further denied, that since the rendition of the judgment mentioned that he has taken possession of any more of the tract that he claimed or any of the land or that he has taken possession of any that was adjudged to the plaintiff in the action. By the second paragraph he alleged that at the time of the filing of the action mentioned in the petition against him and for more than fifteen years prior thereto and ever since said time he has been in the actual, peaceable and uninterrupted possession of the tract of land, which he claimed, used and held adversely, to a well defined and marked boundary. He then describes the boundary now claimed by him and it appears to be exactly the same one which he was alleged to be in possession of and claiming in the suit of the Barren Fork Mining & Coal Co. against him. He, also, plead title to that tract of land by adverse possession for fifteen years previous to the filing of this action. By the third paragraph, he alleged that the title of the appellee was champertous and void. By the fourth paragraph, he alleged that the appellee's vendor had abandoned its judgment, and that by lapse of time it was of no effect; that the judgment was never executed, and his possession of the land was never broken by virtue of the judgment or any process on it. By the fifth paragraph, he alleged that the appellee's claim to the tract of land claimed by him was putting a cloud upon his title, which he asked to have quieted and the cloud removed. By the prayer of his answer, he sought the quieting of his title to the tract of land and that he be adjudged to be the owner of it as against the appellee, and for all proper relief.

Thereafter appellant filed an amended answer, in which he set out a boundary of land which he claimed, and alleged that it included the boundary described in his original answer as being claimed by him. The appellee demurred to the answer as amended and the court sustained the demurrer to the second, third, fourth and fifth paragraphs of the answer and overruled the demurrer as to the first paragraph.

Proof was taken by the appellee, but none by the appellant. The cause was submitted upon the pleadings and proof, and the court adjudged that the appellee was the owner and entitled to the possession of all of the land described in its petition, except the fifty acres of which the appellant was adjudged to be the owner, in the suit of the Barren Fork Mining & Coal Co. against him; that the appellee should recover all of the tract of land described in its petition, except the fifty acres owned by the appellant, and that its title to it be quieted, and that the appellant should be perpetually enjoined from claiming or occupying or taking into...