Smith v. Slusher

• Decision Date: 02 October 1942
• Parties: SMITH et al. v. SLUSHER. SAME v. GRAY et al.
• Court: Kentucky Court of Appeals

165 S.W.2d 38

291 Ky. 600

SMITH et al. v. SLUSHER.

SAME v. GRAY et al.

Court of Appeals of Kentucky

October 2, 1942

Appeal from Circuit Court, Knox County; Robert R. Friend, Special Judge.

Action by Joe Smith and another against C. B. Slusher, etc., to quiet plaintiffs' title to certain tract of land consolidated with suit by same plaintiffs against Brice Gray and another for damages for wrongfully cutting timber on such land, and to have defendants enjoined from further cutting timber and to quiet plaintiffs' title to the land. From a judgment dismissing both petitions, the plaintiffs appeal.

Affirmed.

J. J Tye and J. D. Tuggle, both of Barbourville, for appellant.

Flem D Sampson and J. Milton Luker, both of Barbourville, for appellee.

SIMS Commissioner.

Joe Smith and C. W. Sproul, claiming to be owners and in possession of a certain described tract of land in Knox county on Trace Branch and Hog Branch of Stinking Creek brought suit in equity on Feb. 9, 1937, against C. B. Slusher to quiet their title. In May following they filed a separate suit against Brice Gray and Frank Warren for $375 damages for wrongfully cutting timber on this land, and asked that they be enjoined from further cutting timber and that plaintiffs' title be quieted against Gray and Warren.

There is no order consolidating the two cases, but all the defendants in the two suits filed a joint substituted answer which merely traversed the allegations of the two petitions. Hon. Robert R. Friend, the Special Judge who tried the cases, treated them as if they had been consolidated and rendered judgment dismissing the petitions. They have been briefed together and heard as one case here and this opinion will dispose of them both.

As the defendants did not plead their own title and did not ask by way of counterclaim that it be quieted but contented themselves with denying plaintiffs' title, it was incumbent upon plaintiffs under § 11, Ky.Sts., to allege and prove both title and actual possession. Brown v. Martin, 239 Ky. 146, 39 S.W.2d 243; Taylor v. Wilson, 182 Ky. 592, 206 S.W. 865; Childers v. York, 187 Ky. 332, 218 S.W. 1027; Crawley v. Mackey, 283 Ky. 717, 143 S.W.2d 171.

The plaintiffs alleged and proved as their source of title a patent for 100 acres issued D. R. Clark in 1890, while the title of defendants came through an 83-acre patent issued to Isaac Mills in 1891. This Clark patent begins at three chestnut oaks on top of the ridge between Hog Branch and Trace Branch of Stinking Creek, and it recites this point is also the beginning corner of the John G. Warren patent of 85 acres issued in 1872. The Clark patent then runs with the lines of this Warren patent to the Brice Mills patent. However, there are two Brice Mills patents--one of 50 acres issued in 1872 and the other of 100 acres issued in 1873--which two Mills patents are about a mile and a half apart, as we scale the plat of J. M. Culton filed in the record. It is the contention of the plaintiffs that the Brice Mills land called for in the Clark patent is the 100-acre tract and not the 50-acre tract, while the defendants contend that the Brice Mills land called for is the 50-acre Mills patent which adjoins the John G. Warren patent.

The chief controversy in this litigation is the correct location of the beginning corner of the Clark patent. Plaintiffs have located it at a point something over a mile almost due east of the point where defendants located it. It is the contention of the defendants that it was necessary for the plaintiffs to locate the beginning point where they did in order to reach the Brice Mills patent of 100 acres. If plaintiffs' location of this corner is correct, then the Isaac Mills 83 acre patent overlaps the senior Clark patent and plaintiffs must prevail; while if the defendants have properly located the beginning corner of the John G. Warren patent, there is no overlapping of the Clark patent by the Mills patent and the chancellor's judgment must be affirmed.

Without attempting to discuss and analyze this voluminous record, we will briefly give our reasons for holding that the beginning corner of the Warren patent, which is also the beginning corner of the...