Wait v. Gover

• Decision Date: 13 February 1890
• Citation: 12 S.W. 1068
• Parties: WAIT et al. v. GOVER et al.
• Court: Kentucky Court of Appeals

12 S.W. 1068

WAIT et al. v. GOVER et al.

Court of Appeals of Kentucky.

February 13, 1890

Appeal from circuit court, Pulaski county.

"Not to be officially reported."

Curd &amp Denton and O. H. Waddle, for appellants.

J. T May, for appellees.

HOLT J.

This action, for trespass in the cutting of timber, involves the title to the land. It was heard in equity by consent. A patent issued to L. Brown in 1832 for 100 acres. He conveyed it to W. G. Gover in 1838; and the latter sold it, with other adjoining lands, to the appellees in 1885. A patent issued to William Price in 1838 for 60 acres. His executors sold it with other adjoining lands, to C. Wait, now deceased. The west end of the 60-acre tract laps over some 25 or 30 acres upon the 100-acre tract. The appellees having cut some timber upon the lap, the appellants, who are the widow and children of C. Wait, brought this action against them. W. G. Gover resided upon the land conveyed by him to the appellees, but not upon the 100-acre part of it, for nearly a half century. Some of his improvements or inclosures were, however, upon the Brown portion. Upon the other hand, Price lived upon the land sold to Wait for a long time; but none of his improvements or inclosures appear to have been upon the 60 acres. No part of the interference has ever been improved or inclosed by any one. It is outlying timber land. Price always claimed, however, to the outer boundary of the 60 acres. Gover may be regarded as having done the same to the outer boundary of the 100 acres. It appears he did not know exactly where this would locate his outer line, but he claimed to the extent of his title paper. Thus we have the one claiming the entire 60 acres as a part of his farm, and the other the entire 100 acres as belonging to his farm, and each residing upon land, belonging to him, adjoining the portion so claimed by him. The timber cut was upon the lap, but altogether within the lines of the Brown patent. It is the elder title to the interference; but the appellants claim to have had the land in adverse possession for more than our statutory limitation period of 15 years.

It is evident, however, that they, and those through whom they claim, did not, but Gover did, have the actual possession. The mere claiming of land, and the occasional use of wood or timber from it, does not constitute such possession.

In this instance, if neither side had been invested with any possession save such as arises from merely claiming land, or what is constructive possession, then the Gover side would prevail, as it had the elder title. Each of two claimants cannot have the constructive possession of the same land. It attaches to the one having the elder right, and an actual adverse possession must follow to divest it. In the absence of an actual adverse possession, the holder of the elder title has the constructive possession. It avails to him unless he has renounced it, or been actually disseised; and the statute of limitation does not run against him, or toll his right of entry, because of a mere claim to, without any actual, possession of the land by an...