Stearns Coal & Lumber Co. v. Boyatt

• Decision Date: 26 January 1916
• Citation: 168 Ky. 111,181 S.W. 962
• Parties: STEARNS COAL & LUMBER CO. ET AL. v. BOYATT ET AL.
• Court: Kentucky Court of Appeals

181 S.W. 962

168 Ky. 111

STEARNS COAL & LUMBER CO. ET AL. v. BOYATT ET AL.

Court of Appeals of Kentucky.

January 26, 1916

Appeal from Circuit Court, McCreary County.

Actions by the Stearns Coal & Lumber Company and others against Andy Boyatt and others. Two actions, which were not consolidated but were tried as one action. From a judgment for defendants the plaintiffs appeal. Reversed and remanded.

J. N Sharp, of Knoxville, Tenn., and Stephens & Steely, of Williamsburg, for appellants.

W. R Cress & Son, of Monticello, and Tye, Siler & Gatliff, of Williamsburg, for appellees.

HURT J.

The appellants, Stearns Coal & Lumber Company and Kentucky-Tennessee Property Company, filed a petition in equity against the appellees, Andrew Boyatt, Alvis Boyatt, Dr. F. M. Boyatt, and Jack Absent, by which it was alleged that in the year 1855 a large tract of land containing 9,600 acres was patented to Jacob Hudson and Cyrenus Wait, and appellants were the owners of all that part of the tract which lies on the west of the Cincinnati, New Orleans & Texas Pacific Railroad, and between it and the south fork of the Cumberland river, and between the line of Kentucky and Tennessee, on the south, and the county of Pulaski, in Kentucky, on the north, and that the appellees had entered upon the lands owned by the appellants and cut poplar trees therefrom, and were actively engaged in cutting and removing the trees; that Andrew Boyatt was insolvent, and Dr. F. M. Boyatt, Alvis Boyatt, and Jack Absent were nonresidents of Kentucky and resided in Tennessee; and that great and irreparable injury would result to appellants unless an order was at once granted restraining the appellees from cutting and removing the trees upon the lands. By an amended petition it was alleged that appellees Dr. F. M. Boyatt and Andrew Boyatt had cut and converted to their own use poplar trees, which were the property of the Stearns Coal & Lumber Company, and other trees upon the lands, within three years before the filing of the petition, to the value of $600, and prayed for an injunction against the appellees, restraining them from any further trespasses upon the lands, and the recovery of the sum of $600 in damages against Andrew and F. M. Boyatt.

The appellees filed an answer and amended answer in this suit, in which they did not deny the cutting and conversion of the trees, but denied that same was done upon lands owned by appellants, and, also, pleaded that the lands upon which the alleged trespasses were committed were situated in Wayne county, at the time the warrant was obtained from the Whitley county court by Hudson and Wait, authorizing them to enter and have surveyed the lands for the purposes of a grant, and at the time the surveyor of Whitley county entered and surveyed the lands, and the patent was granted, and for that reason the patent to Hudson and Wait, so far as it embraced the lands from which the trees were cut, was void. The appellants, by reply, denied the allegations as to the location of the lands in controversy at the time of the issual of the warrant, and at the time of the entry, survey, and patent, and denied that the lands at that time were in Wayne county. No evidence was offered upon this issue.

The appellant Stearns Coal & Lumber Company filed a petition in ordinary against Alvis Boyatt, Andrew Boyatt, F. M. Boyatt, and _______ Ross, in which it made claim to ownership of 250 cross-ties and oak logs, of the alleged value of 50 cents each, and the right to immediate possession of them and which it alleged the appellees were wrongfully in possession of and detaining from them, and prayed for a recovery of the cross-ties. The appellees, by answer, traversed the petition and by an amended answer again alleged that at the time of the entry and survey, and at the time the patent was granted to Hudson and Wait, the lands from which the cross-ties were cut were then in Wayne county, and not in Whitley county, and for that reason the patent was void, so far as it embraced the lands upon which the trees were cut. The appellants, by reply, denied the allegations of the amended answer, and pleaded an act of the General Assembly, which had been enacted before the entry and survey was made and the patent to Hudson and Wait was granted, and by which the territory in controversy was included in Whitley county. No rejoinder, demurrer, or other pleading to the reply was filed, and hence no issue was made upon that subject. Thereafter, appellee F. M. Boyatt filed a second amended answer, in which he claimed that he was the owner of the lands from which the cross-ties were cut, and the other trees were cut and converted by him by adverse possession for the statutory period necessary to vest title in him, but admitted that the lands were covered by the Hudson and Wait patent. Andrew Boyatt, also, filed a second amended answer, in which he claimed that he was the owner of two tracts of land of 100 acres each, and that he had held same adversely and claimed same as his own for the statutory period necessary to toll the appellants' right of entry, and relied upon the statutes in such cases provided as a bar to appellants' right of recovery in the action. The affirmative matters in these second amended answers were, by agreement, taken as controverted of record.

In the first-named action a temporary restraining order was granted, and in the second-named action an order of delivery was obtained for the cross-ties. During the pendency of the action, by agreement, a special commissioner of the court was directed to sell the ties and logs under the order of delivery and on hand, which he did, and realized for them the sum of $300. The two suits do not appear ever to have been consolidated or ordered to have been heard and tried together, by any order of the court, but were actually heard and decided together, as we presume, by the consent of the parties, as no objection was offered to that course in the court below and no complaint is now made of the court having taken that course. The two cases were treated by the court and parties as one case, and the pleadings treated as applying to each case, and we will so consider them.

Appellees Alvis Boyatt and Jack Absent do not, from the evidence offered, appear to have had any connection with the matters about which issues were made and tried, and the only charge of wrongdoing against them is the allegations in the original petition, to the effect that they were trespassing upon the lands described in the petition, and these allegations were never denied, although they joined in the first answer.

By a stipulation, it was agreed that the appellants have the record title to the lands embraced by the Hudson and Wait patent, and that the lands upon which the trees and ties were cut are covered by the patent. It was also agreed that Andrew Boyatt had title and was the owner of a tract of land covered by the Martin Beatty patent.

The defense to the actions by appellees F. M. Boyatt and Andrew Boyatt was that each of them was the owner of the lands from which he had cut trees, and that his ownership arose from having held actual, adverse, exclusive, open, and notorious possession, and under a claim of ownership for more than 15 years prior to the actions. This was the issue submitted to the jury, which returned a verdict for Andrew Boyatt and F. M. Boyatt. The court thereupon rendered a judgment, by which the petitions were dismissed, and the special commissioner directed to pay the $300 in his hands to F. M. Boyatt.

The grounds relied upon for a reversal are: First. The court erred in overruling appellants' motion, at the conclusion of all the evidence, to instruct the jury to return a directed verdict for them. Second. The court erred in the instructions to the jury. Third. The court erred in dismissing their petition in equity, and denying the injunction sought. No complaint is made to the effect that the instructions did not substantially embrace the law, as applying to adverse possession, in a proper case; but it is contended that the evidence is not such as to justify the submission of the issue of adverse possession to the jury.

The evidence offered by appellants proved that they and their predecessors, in ownership of the lands embraced in the Hudson and Wait patent, had been in the actual possession of these lands by having tenants situated and residing upon them, at several different places, thereon, attended with the intention to hold and claim the entire boundary, continuously since the year 1880, and was entirely uncontradicted. The appellants had no tenants, at any time, upon the part of the Hudson and Wait patent, which are claimed, respectively, by the appellees; but their possession of such portions, according to the well-settled principles of the law, was actual by construction. This is in accordance with the well-known principle that one residing upon land, claiming it under a deed or patent and intending to possess and hold it all, is in the actual possession of the land to the extent of the boundaries of his deed or patent, to the extent that it is not in the actual possession of another.

The appellee F. M. Boyatt claimed to own 100 acres of the land and the evidence offered by him tended to prove that in 1890 Elisha Boyatt purchased it from Wm. Anderson. It does not appear that Anderson had any title to it, or made any deed to Boyatt for it. Elisha Boyatt owned and resided upon a farm adjoining the 100 acres, but in the state of Tennessee. Elisha Boyatt claimed the land under his purchase, and either he or Anderson placed and operated a stave mill upon it and manufactured some of the trees into staves. Elisha Boyatt had in his possession, at some time, some character of a writing, in which was...