Warfield Natural Gas Co. v. Ward

• Decision Date: 18 June 1940
• Citation: 286 Ky. 73,149 S.W.2d 705
• Parties: WARFIELD NATURAL GAS CO. et al. v. WARD et al.
• Court: Kentucky Court of Appeals

149 S.W.2d 705

286 Ky. 73

WARFIELD NATURAL GAS CO. et al. v. WARD et al.

Court of Appeals of Kentucky

June 18, 1940

As Modified on Denial of Rehearing March 28, 1941.

Appeal from Circuit Court, Martin County; James F. Bailey, Judge.

Suit by John C. Ward and others against the Warfield Natural Gas Company and another to quiet title to certain realty, to compel defendants to render an accounting of gas extracted from such land, and for injunctive relief, wherein several intervening petitions were filed. From the judgment, the defendants appeal and the plaintiffs cross-appeal.

Affirmed.

Kirk &amp Wells, of Paintsville, W. R. McCoy, of Inez, A. R. Kingdon of Mullins, W. Va., and Harold A. Ritz, of Charleston, W Va., for appellants.

W. J Ward and Howes & Walker, all of Paintsville, for appellees.

STANLEY Commissioner.

The case involves the title to oil and gas under about 660 acres located on the Left Fork of Big Elk Creek, a tributary of Tug Fork of Big Sandy River. The facts are complex and the evidence conflicting. Six years passed between the filing of the suit and rendition of the judgment, during which the record of nearly 5,000 pages was built up. Not much more than a general statement of the contentions of the parties and out conclusions may be stated without an opinion of undesirable length.

The suit was brought by a number of parties who, for convenience, are denominated as the heirs of W. J. Ward, Sr., or as Ward's Heirs, against the Warfield Natural Gas Company, and Lewis Dempsey. The plaintiffs prayed that their title be quieted; that the defendants render an accounting of gas extracted from the land; and that the plaintiff recover $10,000 for its value, and $200, unpaid rentals. Injunctive relief was also sought. There were many amended pleadings and intervening petitions along the way, but the essential issues and the relief sought remained about the same. In the main, that relief was granted, excepting a 100-acre parcel. The case was referred to the master commissioner for an accounting, and no definite sum was adjudged the plaintiffs as damages or compensation. The defendants named above and others who during the course of the preparation and trial were brought into the case to defend their titles or warranties, or who assumed a like position in whole or in part, have appealed from the judgment in favor of Ward's Heirs. The latter have been granted an appeal against certain parties and a cross-appeal against the appellants.

The plaintiffs claim a record title deducible from five patents issued by Kentucky in 1855, 1858, 1862, and 1880 to John Chapman, George Chapman and John Hobbs, respectively. The defendants claim a superior title through descent or conveyance from a patent issued by Virginia to Benjamin Say on November 13, 1786, for 15,000 acres which embraces the land claimed by the plaintiffs. A portion of the disputed land is outside the Say patent and is covered by a patent for 5,217 acres issued to Benjamin Fuller, on the same day, which is also owned or claimed by the appellants. But attention is principally directed to the Say patent and its location. In addition to claiming both surface and minerals under this senior and superior title, Dempsey (an appellant whose interest apparently is that of the Warfield Company) claims the surface and 2/8 undivided interest in the minerals through the same chain of title relied on by the Wards. In rebuttal, plaintiffs deny the location of the Benjamin Say patent contended for by the defendants (now appellants) and maintain their land is not covered by that instrument. The plaintiffs also rely upon limitations and title by adverse possession. The defendants controvert those claims. There are many subordinate or incidental situations and claims presenting material issues and important individual rights, which are but branches of the main body of the case thus stated.

We are confronted, first, with the issue as to whether or not the lands in controversy are covered by the patent to which the appellants trace title, that is, to the Benjamin Say patent of 15,000 acres. It was issued on November 13, 1786, on a survey dated March 29, 1785, in the name of Thomas Lyons. The location of this patent has been in question for several years. Burger v. Allen, 211 Ky. 742, 277 S.W. 1032; Warfield Natural Gas Company v. Danks, 271 Ky. 452, 112 S.W.2d 674. The survey does not detail the river calls. The description in this patent is as follows: "Lying and being in the county of Fayette adjoining Phillip Lyons Survey and bounded as follows: Beginning at a beech tree South East corner to Phillip Lyons survey, thence up the North branch of the Sandy River the different courses thereof S 45 E 44 poles--(detailing the river calls)--in all 1918 poles to a sycamore tree, thence S 60 W 1823 poles to a hickory and white oak, thence at right angles N 30 W 1304 poles to a black oak, thence at right angles N 60 E 545 poles Phillip Lyons South West corner a white oak and with his line 1453 poles in all 1898 poles to the beginning."

As in the Danks case, the Warfield Natural Gas Company has here produced elaborate and exhaustive technical, historical and factual evidence, as well as legendary, establishing the location of the Benjamin Say grant. Extensive and expensive surveying was done in the preparation of this case, and evidence of old citizens as to local reputation and understanding was introduced to establish the location to be on Tug River at this point. On the other side, the appellees rely in a large measure upon the description contained in the patent which calls for "the North branch of Sandy River," it being shown that the claimed location is on the east branch of Sandy River. It is claimed also that at the time this patent was issued this stream was known as the East Fork and also as Tug River. It is so referred to in patents by Kentucky in 1796. See, also, Kerr's History of Kentucky, Vol. 1, p. 980, as to the origin of the name, "Tug River". The explanation in rebuttal is that the stream in its relation to the other fork of Big Sandy River (now called the Levisa Fork) may be regarded generally as north; that the stream is referred to in the report of the commissioners establishing the boundary between Virginia and Kentucky as the "northeastwardly branch" (Sec. 187, Ky. Stats.), and many old patents whose location is not disputed refer to it as the north fork of Sandy River. It is also shown that the lines of the survey not only fit in with adjacent surveys and patents but when a plat is super-imposed upon a present map they conform pretty well with the contours of Tug River and creeks emptying therein. According to L. E. Wallace, County Surveyor of Lawrence County, who perhaps has had greater experience than any other engineer in dealing with the lands in the territory, all Virginia grants from Louisa up Tug River (the present name of the north or east branch) of the Big Sandy River (formerly Sandy River) make a connected block, one calling for another, and that the Benjamin Say grant would not fit elsewhere. It is also observed that the small official sketch in the survey corresponds in a general way with present plats.

The calls of the patent carry a portion of it across the river over into West Virginia. However, this may be harmonized by taking 50 rods from one call and adding 50 rods to another. When that is done no part of the survey extends beyond the river but the line goes substantially to the river, making due allowances for variations and changes in the course of the river during the ensuing one hundred and fifty years. Appellees' engineers concede that this is not an improper practice.

Some of appellants' engineers found indications of a marked boundary, while appellees' engineers deny their existence. In the light of all the other evidence and the nature of the testimony itself, this may be placed on each side in weighing the evidence as a whole.

Our conclusion on this point is that, though the evidence presented by appellees show circumstances casting some doubt on the location, the Benjamin Say patent has been properly located by the appellants.

2. The appellees challenge the continuity of Warfield's chain of title from the patent and proved or endeavored to prove several broken links. For the decision we may concede that the intervening transactions effected a hiatus, yet upon our view of the case as hereinafter expressed such condition is immaterial. It is certain that there is a connected title for many years before the present litigation.

3. Fundamental of a disposition of many questions is the meaning and effect of Section 251 of the Constitution of Kentucky. It is as follows: "No action shall be maintained for possession of any lands lying within this state, where it is necessary for the claimant to rely for his recovery on any grant or patent issued by the Commonwealth of Virginia, or by the Commonwealth of Kentucky prior to the year one thousand eight hundred and twenty, against any person claiming such lands by possession to a well-defined boundary, under a title of record, unless such action shall be instituted within five years after this Constitution shall go into effect, or within five years after the occupant may take possession; but nothing herein shall be construed to affect any right, title or interest in lands acquired by virtue of adverse possession under the laws of this Commonwealth."

In Golden v. Blakeman, 223 Ky. 517, 3 S.W.2d 1095, 1096 the term "title of record" in the section was construed as meaning a valid title of record. Accordingly, under the statute declaring that a patent for land embracing land previously patented is void (Section 4704, Kentucky Statutes), it was held that a party tracing his title to a junior...