Turk v. Wilson's Heirs
| Decision Date | 22 May 1936 |
| Citation | 266 Ky. 78 |
| Parties | Turk et al. v. Wilson's Heirs. |
| Court | United States State Supreme Court — District of Kentucky |
1. Public Lands. — Junior patents for accretions to previously patented lands on islands in Mississippi river held void under statute (Acts 1891-92-93, c. 136, secs. 3, 5).
2. Navigable Waters. — Patents to lands on island in Mississippi river held to confer ownership of river bed out to middle thread of stream, subject to public right of navigation.
3. Navigable Waters. — Grantee in actual possession of patented lands on island in Mississippi river held to have title and possession as regards accretions.
4. Adverse Possession. — Title by adverse possession held limited to lands in possession and cultivation 15 years prior to filing of action.
5. Adverse Possession. — Children held entitled to tack their adverse possession to that of deceased father and also to that of mother until her surrender of dower by conveyance to children.
6. Adverse Possession. — Words "lap," "overlap," "lappage," "interference," "conflict," and "interlock" are synonymous and designate lands covered by both senior and junior patents, as regards adverse possession.
7. Adverse Possession. — Persons claiming title by adverse possession of lands covered by junior patents conflicting with senior patents held to acquire only their close, where senior patent holder was in actual possession of land described in his deed, since actual possession of part of particular tract by adverse possession could not be constructively extended to confines of such tract nor to confines of other tracts.
8. Adverse Possession. — That adverse possessor acquired title to certain accretions to patented lands on island in Mississippi river held not to affect landowner's title to outlying accretions nor to river bed, since landowner's title dated from patents and not from appearance of accretions above water.
9. Abandonment. — Vested fee-simple title to realty cannot be abandoned; writing signed by owner being only way of parting with vested title to realty, in view of statute of frauds (Ky. Stats., sec. 470).
10. Adverse Possession. — Landowner held not bound to speak merely because claimants by adverse possession were engaged in surveying and partitioning lands involved.
11. Adverse Possession. — Landowner must have knowledge of hostile claim or be charged therewith because of visible and notorious possession and use, indicating purpose to assert adverse title.
12. Adverse Possession. — Payment of taxes held immaterial in determining title by adverse possession.
13. Commerce. — Ruling, whereby landowner under patents from Kentucky covering lands on island in Mississippi river took title to accretions and to river bed out to middle thread of stream, held not in conflict with commerce power of Congress (33 U.S. C.A. sec. 403; Constitution U.S. art. 1, sec. 8, cl. 3).
14. Navigable Waters. — Accretions held divisible by extending original river frontage of lots to thread of stream as nearly as practicable at right angles with course of river.
15. Appeal and Error. — Adverse possession of certain tracts cleared, fenced, and cultivated, held to have ripened into title, justifying holding that trial court erred in not making any order concerning such tracts, notwithstanding record contained no description thereof enabling Court of Appeals to direct proper judgment; such tracts being parts of larger tracts properly described .
16. Trial. — Where action for trespass was joined with action by person claiming under senior patents to recover lands claimed by defendants under junior patents and by adverse possession, cause should have been transferred to common-law docket and jury trial had, but right thereto was waived in absence of motion.
17. Action. — Action for trespass held properly joined with action to recover lands (Ky. Stats., sec. 2163).
18. Appeal and Error. — Where plaintiff properly joined action for trespass with action to recover lands, and, on being erroneously required to elect, elected to pursue action to recover lands, effect was to dismiss involuntarily action of trespass without prejudice, and hence, on return of case, trial court should determine issue relating to trespass (Ky. Stats., sec. 2163).
Appeal from Carlisle Circuit Court.
WHEELER, WHEELER & SHELBOURNE and HOLIFIELD, GARDNER & McDONALD for appellants.
LUCIEN R. SMITH for appellees.
OPINION OF THE COURT BY DRURY, COMMISSIONER.Affirming in part and reversing in part.
Our appellants are the children and heirs of J.W. Turk, and they are appealing from a judgment which deprives them of what they asserted was a perfectly good title inherited from their father to about 450 acres of land on Island No. 3 in the Mississippi river in Carlisle County, Ky. And the appellees are the heirs of T. J. Wilson; they are not only seeking to hold the 450 acres recovered in this judgment, but by cross-appeal are seeking to get about 110 acres more than was awarded to them by this judgment, and all of which they claim by inheritance from their father.
Suit Filed.
T.J. Wilson began this action on October 22, 1925, by filing in the Carlisle circuit court a petition in equity against the six children and heirs at law of J.W. Turk, who had died intestate on February 11, 1916.
While this litigation was pending, T.J. Wilson, on December 7, 1932, died intestate, domiciled in Carlisle county, Ky., survived by two sons and three daughters, namely, Pat Wilson, Arleigh Wilson, Annie Wilson Sams, Ora Wilson Gorham, and Hattie Wilson Bishop as his only children and heirs at law. All of these children were married. Pat Wilson and Arleigh Wilson were appointed and qualified as administrators of T.J. Wilson, and on March 1, 1933, this action was revived in the names of the said administrators as such and in the names of all five of said children and their respective spouses as plaintiffs.
In the judgment which was entered on November 10, 1933, there is no mention of the administrators of T. J. Wilson, and the only ones to whom relief was awarded or denied are the five children of T.J. Wilson and the six children of J.W. Turk.
The islands in the Mississippi river below Cairo going downstream were numbered. Of these, Islands 1, 2, 3, 5, and 8 belong to Kentucky. See section 198, Ky. Stats. Island No. 10 made no small contribution to the history of this nation in the War Between the States in the sixties. Island No. 5, sometimes called "Wolf Island," made some contribution to our national jurisprudence in the case of Missouri v. Kentucky, 11 Wall. (78 U.S.) 395, 20 L. Ed. 116, but it remained for Island No. 3 in our state jurisprudence to make quite a contribution as will appear from this case and from those listed below, and for our convenience we have identified these opinions by letters and shall so refer to them in this opinion, and we shall refer to appellants as "Turk's heirs" and to appellees as "Wilson's heirs."
Former Opinions.
(a) 1907, Hilleary v. Wilson, 100 S.W. 1190, 30 Ky. Law Rep. 1262.
(b) 1910, Wilson v. Watson, 141 Ky. 324, 132 S.W. 563, 35 L.R.A. (N.S.) 227.
(c) 1911, Wilson v. Watson (rehearing), 144 Ky. 352, 138 S.W. 283, Ann. Cas. 1913 A, 774.
(d) 1912, Carson v. Turk, 146 Ky. 733, 143 S.W. 393, 42 L.R.A. (N.S.) 384.
(e) 1912, Watson v. Wilson, 150 Ky. 27, 149 S.W. 1120.
(f))1915, Caughlin v. Wilson, 167 Ky. 35, 180 S. W. 40.
(g) 1918, Taylor v. Wilson, 182 Ky. 592, 206 S.W. 865.
(h) 1920, Wilson v. Caughlin, 187 Ky. 221, 218 S. W. 1010.
The student will better understand this opinion by first reading the above opinions.
Genesis.
On the 31st of January, 1898, T.J. Wilson bought of S. Mathias and wife 102 acres of land, which was part of a tract of 237 1/2 acres patented to Price and H. L. Edrington on September 19, 1837 (patent I.C. 4). In the same deed, T.J. Wilson acquired title to 140 acres which had been patented on June 15, 1872, to William Parson (patent C.C.O. 47615).
On November 26, 1899, T.J. Wilson acquired from Noah J. Parsons title to 70 acres which on June 15, 1872, had been patented to William Parsons (patent C.C.O. 47614). In this same deed T.J. Wilson acquired 10 acres which had been included in the above patent C.C. O. 47614 to William Parsons.
All four of these properties are described in opinion (a), supra, and Wilson's heirs in this case have established by the evidence their derivation of title from the commonwealth under these patents, mesne conveyances, etc.
These river islands are not very stable. The river cuts and carries some of them away and adds to others. For example, Island No. 10, for the possession of which so much blood and treasure were expended in the sixties, has entirely disappeared, while Island No. 3 has by accretion been enlarged to far beyond its former proportions. This accretion has not been uniform all around the island, but has occurred on the western side, and on the eastern side the island is being slowly eroded by the action of the river.
This accretion was in progress when Wilson bought the four tracts above mentioned, and this may have been an inducement to him to make his purchases. Wilson asserted his ownership of these accretions, while others regarded them as vacant land and proceeded to survey them and take out patents upon them, so that in a few years there were a number of rival claimants asserting title to these accretions under the following junior patents and possibly others.
No. Date Acreage Patentee
L.W.T. 9300 Dec. 31, 1897 66 1/2 James Johnson
L.W.T. 9301 Dec. 31, 1897 100 Mrs. F.E. Johnson
L.W.T. 9302 Jan. 26, 1898 73 J.B. Shook
C.C.O. 66320 Feb. 20, 1900 200 W.H. Ponder
C.C.O. 66321 Feb. 20, 1900 200 W.J. White
L.W.T. 9303 Apr. 5, 1900 99 C.W. Dupree
L.W.T. 9304 Apr. 5, 1900 195 J.W. Turk
L.W.T. 9305 Apr. 5, 1900 200...To continue reading
Request your trial