Virginia Iron, Coal & Coke Co. v. Webb

• Court: U.S. Court of Appeals — Sixth Circuit
• Citation: Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821 (6th Cir. 1920)
• Decision Date: 02 March 1920
• Docket Number: 3259.
• Parties: VIRGINIA IRON, COAL & COKE CO. v. WEBB et al.

263 F. 821

VIRGINIA IRON, COAL & COKE CO. v. WEBB et al.

No. 3259.

United States Court of Appeals, Sixth Circuit.

March 2, 1920

J. C Jones, of Frankfort, Ky., for appellant.

B. C Tynes, of Huntington, W. Va., and John F. Hager, of Ashland Ky., for appellees.

Before KNAPPEN, DENISON, and WARRINGTON, Circuit Judges.

KNAPPEN Circuit Judge.

The appellant brought suit to quiet title to the minerals underlying certain parcels of land in Perry county, Ky., on Big creek, which is a tributary of the North fork of the Kentucky river. Upon hearing on pleadings and proofs, the District Judge found in favor of defendants and dismissed the suit. This appeal is from that order of dismissal.

The situation, so far as presently material, is this:

In 1823, Robert Williams obtained a patent for 50 acres on Big creek, and in 1825 a patent for another 50 acres on the same creek. In 1843, Henry C. Duff obtained a patent for 100 acres, which included and surrounded both Williams' parcels. Within the Duff and Williams tracts there empty into Big creek (which runs in a generally northwesterly direction) the following tributaries (from above down): Buffalo fork from the east, Jack's branch from the west, Jenny's (or Alfred Eversole) branch from the east, Orchard branch also from the east, Riles' branch from the west Ben's branch from the east, and Wolf Pen branch from the west. The southern line of the Duff parcel extends a short distance above (southeasterly from) the mouth of Buffalo fork, and a considerable distance below (northwesterly from) the Wolf Pen branch. In 1846, Jackson G. Combs obtained patent for 3,500 acres on Brown's fork, which is a tributary of Big creek, and joins the latter a considerable distance below the mouth of Wolf Pen branch. This patent really contained 4,728 acres. Its western boundary crosses Big creek slightly east of the westerly end of the Duff tract; its southeastern boundary also crosses that creek above Buffalo fork, and extends beyond the ridge between Big creek and the North fork of the Kentucky river. About one-half of it lies on Big creek; the bulk of the remainder on Brown's fork. The Williams and Duff tracts lie within the Combs tract; but the latter is junior and inferior to both the Duff and Williams patents. Combs also obtained another patent for 2,500 acres on the North fork of the Kentucky river, overlapping the easterly part of Combs' other patent; but the boundaries of the 2,500-acre tract are not important.

In 1857, Woolery G. Eversole, who had acquired the Duff and both Williams parcels, obtained a patent for a tract described as containing 1,500 acres, surrounding and including all three of the parcels last referred to. This survey was doubtless believed to cover all the land on Big creek, both at its lower end and between the tops of the ridges on either side. It actually contained more than 4,000 acres. It included all of the tributaries of Big creek entering it from the west, the entire of Ben's branch and Orchard branch, and the lower parts only of Buffalo fork and Jenny's branch; also at least two branches farther down the creek and one farther up. The Woolery G. Eversole title was thus inferior to the Combs title as to so much of the land east of the western line of the Combs tract as was outside the Duff and Williams patents.

July 6, 1870, Woolery G. Eversole conveyed to William Baker, by warranty deed, a parcel covering the entire watershed of Jack's branch. Baker thereby obtained title to so much of the description as adjoined Big creek within the Duff and the upper Williams patents, and also to so much as lay southeast of the southern line of the Combs 3,500-acre patent and on the head of Jack's branch.

On February 5, 1878, Woolery G. Eversole conveyed to his son Alfred (likewise by warranty deed) a parcel stated to contain 500 acres, more or less, bordering on its westerly side the Baker parcel and covering the entire watershed of Jenny's fork and all of Big creek below (speaking generally and accurately enough for present purposes, at least) Slick Rock ford, so called, which was about halfway between the mouths of Jenny's and Buffalo forks, to the mouth of Orchard branch. So much of this as lay directly on Big creek was within the Williams and Duff patents.

On the same day (February 5, 1878) Woolery G. Eversole, by warranty deed, conveyed to his son Thomas a parcel stated to contain 500 acres, more or less (adjoining on the south the parcel so conveyed to Alfred), and covering the entire watershed of Buffalo fork and all of Big creek above a line drawn through Slick Rock ford, and between it and the mouth of Buffalo fork. So much of this parcel as lay directly on Big creek was within the limits of the Duff patent.

The parcels so conveyed, respectively, to Baker, Alfred Eversole, and Thomas Eversole adjoined each other on Big creek. The portions of each of these parcels not within the Williams and Duff patents were within the overlap of the Combs patent.

August 31, 1883, Josiah H. Combs, who had succeeded to the title of Jackson G. Combs, gave to Woolery G. Eversole, Alfred Eversole, and Thomas Eversole a title bond, evidently intended to cover all the lands to which Combs claimed title, and which had been conveyed by Woolery G. Eversole to his sons Alfred and Thomas, respectively, subject to a vendor's lien for $500. ^[1] The record would indicate that it was not until after the conveyances from Woolery G. Eversole to his sons (and thus long after the conveyance to Baker) that any of the parties concerned had information that the lands in question were embraced within the Combs patent, the survey whereof had been run by calls only. Combs' title was doubtless bought to perfect the title to the lands so conveyed by Woolery G. Eversole

April 5, 1887, Thomas Eversole conveyed to William Newberry all the land conveyed to Thomas by his father, so far as involved here; and on the same date Combs likewise made conveyance to Newberry of the same land. On September 3, 1887, Newberry gave to one Horsley a title bond or option of the mineral rights in the parcel of land he had so acquired from Thomas Eversole and Combs; and on April 30, 1890, Newberry and Thomas Eversole conveyed to Arthur D. Bright, trustee, the minerals under the Newberry parcel, said to contain 296.25 acres.

On June 18, 1887, Alfred Eversole gave to Horsley a title bond for the mineral rights in the parcel of land so conveyed to him by Woolery G. Eversole and sold to him by Combs under the title bond referred to. September 30, 1889, Combs conveyed to Alfred Eversole all the land owned by the former within the boundary conveyed to Alfred by his father. On January 27, 1890, Alfred Eversole conveyed to William Cornet a parcel containing 167 acres, being the easterly part of the Alfred Eversole tract. On March 28, 1890, Alfred Eversole conveyed to Arthur D. Bright, trustee, the mineral rights in all the lands conveyed to him by Woolery G. Eversole, except that conveyed, as already stated, by Alfred to Cornet (said to embrace 321.25 acres), so far as involved here; and on April 1, 1890, Cornet and wife conveyed to Arthur D. Bright, trustee, the mineral rights in the land so conveyed to Cornet by Alfred Eversole.

The defendants, Webb and Hoppin, claim title under Bright, trustee; and if the conveyances from Woolery G. Eversole to Thomas and Alfred, respectively, were in fee, defendants have acquired, as against both the Eversoles and Combs, both the legal and equitable title to the minerals in question, unless the defense of estoppel, hereafter discussed, is sustained.

On July 21, 1887, however, Josiah H. Combs joined with William Baker in a conveyance to T. P. Trigg, trustee, of the mineral lands underlying certain parcels of land which plaintiff (who is the grantee of Trigg, trustee) claims include all of the Alfred Eversole parcel and all of the Thomas Eversole parcel except the small part which is within the older Williams and Duff patents, and that these conveyances to Trigg, trustee, carried, for reasons hereafter to be stated, a title superior to that obtained by Bright, trustee, derived through Thomas and Alfred Eversole and their grantees.

The decision of this case turns upon the question which of these two trustees, Bright or Trigg, obtained, as against the other, the superior title to the minerals involved.

1. Plaintiff contends that the deeds from Woolery G. Eversole conveyed a life estate merely to Thomas and Alfred, respectively. This question is not specially important, except as it affects the title to so much of the lands as are within the Duff or earlier patents, or perhaps as it may affect the question of adverse possession. In the Alfred Eversole deed the conveyance in the granting clause is to him, 'his heirs and assigns'; the habendum is to him during the term of his natural life, and at his death to be equally divided among his heirs; the grantor 'forever warrants and defends' the premises 'unto Alfred Eversole, his heirs and assigns.' The deed to Thomas differs only in that in the warranty clause the words 'and assigns' are omitted. Counsel treat the deeds as identical in effect, and we think rightly.

At the common law a conveyance otherwise of a fee was not limited by repugnant language in the habendum clause. Section 2342 of Carroll's Kentucky Statutes provides that, unless a different purpose appears by express language or necessary inference, every estate in land created by deed, without words of inheritance, shall be deemed a fee simple, or such other estate as the grantor had power to dispose of. Section 2345, however, provides that if an estate be given by deed to any person for his life, and after his death to his heirs, or the heirs of his body, or his issue or...