Saylor v. Kentucky-Cardinal Coal Corporation

• Citation: 266 S.W. 388,205 Ky. 724
• Parties: SAYLOR v. KENTUCKY-CARDINAL COAL CORPORATION.
• Decision Date: 25 November 1924
• Court: Court of Appeals of Kentucky

266 S.W. 388

205 Ky. 724

SAYLOR v. KENTUCKY-CARDINAL COAL CORPORATION.

Court of Appeals of Kentucky.

November 25, 1924

Appeal from Circuit Court, Bell County.

Action by S. C. Saylor against the Kentucky-Cardinal Coal Corporation and another. From the judgment, plaintiff appeals. Reversed and remanded.

N. J Weller, of Pineville, for appellant.

N. R Patterson, of Pineville, for appellee.

McCANDLESS J.

S. C Saylor sued the Kentucky Cardinal Coal Corporation and J. C. Strauss in ejectment, both parties claiming through a common vendor. From a verdict and judgment in favor of first-named defendant, the plaintiff appeals.

It appears that appellant was the owner of a small tract of land lying on the south bank of the Cumberland river and containing about 40 acres, which he had purchased from his father, who also owned a farm adjoining this on the south.

In the year 1911 a railroad was constructed up the Cumberland Valley, and a right of way 100 feet wide was condemned over appellant's land along his southern line, except a strip of his land about 240 feet long and 35 and 40 feet wide was cut off to the south of the right of way and not condemned. Appellant's house was on the land condemned, and he moved it northward off the right of way, and continued to occupy it as a residence and store until about the year 1915, when he sold to the appellee his land lying to the north of the right of way and moved to Madison county, where he has since resided; the residence being not exceeding 150 feet from the land in controversy.

In March, 1911, appellant's father sold and conveyed the land south of the railroad right of way to Bennett & Jones, including in the conveyance the strip in controversy, and by mesne conveyances it has reached the appellee, the present owner.

Appellant's father died in 1920. Shortly thereafter appellant had the strip of land surveyed and brought this suit. The defense is an estoppel. He testifies that he was not present at any of the negotiations between his father and Bennett & Jones, and did not know the disputed land was embraced in the deed made by his father to them. He did not know that appellee was encroaching upon the lot until it was surveyed in 1920, and that during all that period he was claiming it as his own, without any notice of appellee's claims until after his father's death.

Appellee claims that the disputed land is of slight value, but in view of its situation and shape it (appellee) would be materially...