Tennis Coal Co. v. Sackett

• Decision Date: 15 December 1916
• Parties: TENNIS COAL CO. v. SACKETT.
• Court: Kentucky Court of Appeals

190 S.W. 130

172 Ky. 729

TENNIS COAL CO. v. SACKETT.

Court of Appeals of Kentucky.

December 15, 1916

Appeal from Circuit Court, Harlan County.

Suit by F. M. Sackett against the Tennis Coal Company, with counterclaim by defendant. Judgment for plaintiff in part and for defendant in part, motions for new trial denied, and defendant appeals, and plaintiff takes a cross-appeal. Affirmed upon the original appeal, and reversed in part upon the cross-appeal, and otherwise affirmed, and cause remanded with directions.

Bailey P. Wootton and Jesse Morgan, both of Hazard, Jas. H Jeffries, of Pineville, Hager & Stewart, of Ashland, and Neal & Strickling, of Huntington, W. Va., for appellant.

Cleon K. Calvert, of Hyden, for appellee.

HURT J.

Based upon surveys made on the 24th, 25th, 26th, 27th, 28th, and 30th days of June, and 1st, 2d, 3d, and 4th days of July 1873, a patent was granted to C. O. Lockard, on the 4th day of November, 1873, for 78,262 acres of land, in what was then Harlan county, but now in Harlan and Leslie counties. That patent, by its terms, excluded from the grant 32,147 acres of land, which had been previously patented, the names of the patentees of which were not given, and in addition thereto 5,675 acres of land, which was embraced by prior entries. The prior entries had been made by 26 different persons, whose names and the number of acres included in their entries, respectively, were specifically set out. This left included within the grant 40,400 acres of land, which until then had not been appropriated. The boundary of the lands, embraced within the patent, was described, generally, as lying upon the waters of Beech fork, ______ fork, Bad creek, Coon creek, and Wolfe creek, tributaries of the Middle fork of the Kentucky river, and bounded on the south and southeast by Pine Mountain, north and northeast by the lines of Perry and Letcher counties, on the west and northwest by the line of Clay county, and on the southwest by Boyd Dickerson's 100,000-acre survey; and, in addition to this general description, the metes and bounds of the granted land were set out specifically by courses and distances.

C. O. Lockard died, testate, about the year 1887, a citizen of the state of Ohio, but on November 20th, 1905, his last will and testament was duly probated, as a will of real estate, in the Leslie county court. Thereafter, on the 11th day of May, 1907, the devisees under the will of C. O. Lockard, deceased, conveyed a very large portion of the lands, embraced in the grant to C. O. Lockard, to the appellee, F. M. Sackett. In the deed to Sackett, there was excluded from the operation of that deed 24,000 acres of land, which were held under patents anterior to the Lockard patent, and about 800 acres of land, which had been previously conveyed to the Burt & Brabb Lumber Company.

During the year 1903, the appellant, Tennis Coal Company, which is a corporation and organized under the laws of the state of West Virginia, purchased from various persons, who were claimants of different portions of the lands embraced in the deed of conveyance from the devisees of C. O. Lockard to appellee, F. M. Sackett, the coals, minerals, gases, oils, stone, salt waters, salt minerals, iron ore, fire and potter's clay and other mineral products, and many privileges and easements, usually incident to the sale of minerals, as separated from the ownership of the surface of the land, which were in and under the lands claimed by such parties, from whom the purchases were made, and obtained deeds of conveyance therefor.

On September 24, 1912, the appellee, F. M. Sackett, instituted this suit in the Harlan circuit court against the appellant, Tennis Coal Company. In the petition he alleged his ownership of the various tracts of land and all of the coals, minerals, etc., above mentioned, which were in and under the surface of the lands; and that in and under eleven distinct portions of the lands, which were described by metes and bounds, the Tennis Coal Company was claiming to be the owner of the minerals and products above mentioned, and had without right and against his consent entered upon such portions as were described in the petition, and was detaining the possession of such portions from him without right and against his consent, and prayed the court to adjudge that he was the owner of the lands and the various substances underneath the surface of them, and to give him the possession of same.

The appellant, by answer, set out and described thirteen portions of the lands, which were described in the petition, and in such thirteen portions it claimed to be the owner and in the possession of the various coals, minerals, etc., mentioned in the petition, and as to these portions it denied the ownership and right of possession of appellee of the lands or any of the substances under the surface of the lands, or any of the easements or privileges claimed and sued for, and further claimed that it, and those under whom it claimed ownership, had been in the adverse possession of the lands and the substances therein for more than 15 years before the filing of the petition; that the lands were covered by an older and superior title to that of the appellee; and that, at the time the lands were conveyed to appellee by the devisees of Lockard, the lands were then in the adverse possession of it and those under whom it claimed, and for that reason the deed of conveyance, under which the appellee claims ownership, was champertous and void. The answer was made a counterclaim, with a prayer that the petition be dismissed, and that its title to the coals, minerals, etc., in the thirteen portions of the land claimed by it, be quieted. An amended answer was also filed. The affirmative averments of the answers were denied by replies.

At the close of the testimony offered by the appellee, who, as said, was the plaintiff below, the appellant moved the court to peremptorily instruct the jury to find a verdict in its behalf as to the coals, minerals, etc., in all the tracts of land in controversy, and, at the close of all the evidence, renewed the motion, but it was overruled in both instances.

At the close of all the evidence, the appellee moved the court to direct a verdict for him as to all the coals, minerals, etc., sued for, in and under all the tracts of land in controversy. The court sustained the motion in part and overruled it in part. It directed the jury to find for appellee all the coals, minerals, etc., mentioned in the petition, in and under the tracts of land described as the Lewis Turner, James Miniard, and Wm. Miniard, second tract, respectively; and in and under all that portion of the tract known as the John Huff tract, which lies outside of the exterior lines of the David Turner 50-acre patent, No. 64,345; and in and under that portion of the tract described as the Wm. Miniard, first tract, which is not embraced by the patents to Wm. Miniard, which are No. 58985, No. 58984, and No. 64344, respectively; and in and under that portion of the tract described as the John L. Turner tract, which is not embraced by the patent granted to Ballard Begley, No. 62702, and the patent to Israel Napier, No. 67056.

The ownership of the coals, minerals, and privileges described in the petition, in and under all the other portions of the lands in controversy, not included by the portions of the lands referred to and designated in the peremptory instruction, were submitted to the jury under instructions, which, in substance, directed it that if it believed from the evidence that the lands in controversy were not embraced within the excluded portions in the patent to C. O. Lockard, nor in the excluded portions in the deed from Lockard's devisees to appellee, to find for appellee all the coals, minerals, privileges, etc., mentioned in the petition, in and under so much of the lands as are not embraced in the lands excluded from the operation of the patent and deed, unless it should believe from the evidence that all, or some portions, of the lands had been in the adverse possession of the appellants, or those under whom it claims title, for 15 years, at one time, before the institution of the action, or that all or some portions of the lands in controversy were in the adverse possession of the appellant and those under whom it claimed title at the time of the purchase by and conveyance to the appellee, and that all or such portions of the lands as it should find had been held adversely by appellant and those under whom it claimed for as much as 15 years, at one time, before the institution of the action, or was in the adverse possession of the appellant and those under whom it claimed at the time of the purchase by and conveyance to appellee, it should find for appellant. The jury was in substance further instructed that where minerals in lands are sold and conveyed, and the person, selling the same, or any one claiming under him, remains in possession of the surface of the land, the person so holding the possession, also, holds the actual possession of the minerals for the benefit of the person to whom they had been conveyed. Another instruction directed the jury that if the patents No. 58984, No. 58985, and No. 64344, which had been granted to Wm. Miniard, and containing 50, 100, and 75 acres, respectively, lie adjoining each other and form one connected boundary of land, the entry of Wm. Miniard upon the lands embraced in one of these patents and clearing and fencing a field thereon was, in contemplation of law, an entry and taking possession of all the lands, which are embraced in all three of the grants.

The appellant and appellees, each, objected to the instructions given by the court, and, their objections being overruled saved exceptions, and...