Warfield Natural Gas Co. v. Danks

• Decision Date: 11 January 1938
• Citation: 271 Ky. 452,112 S.W.2d 674
• Parties: WARFIELD NATURAL GAS CO. et al. v. DANKS et al.
• Court: Kentucky Court of Appeals

112 S.W.2d 674

271 Ky. 452

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

Court of Appeals of Kentucky

January 11, 1938

Appeal from Circuit Court, Martin County.

Suit by Thomas S. Danks and another against the Warfield Natural Gas Company and another, to quiet title to certain real estate. From an adverse decree, the defendants appeal.

Reversed.

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

J. B Clark, of Inez, for appellees.

STANLEY Commissioner.

The suit was instituted by Thomas S. Danks and his sister, Mrs Ruth Danks White, against Warfield Natural Gas Company and Virginian Gasoline & Oil Company. The plaintiffs alleged that they were the holders of the legal title to, and the owners and in possession of a certain described tract of land "containing, as is supposed, 200 acres, be there more or less," in Martin county, and that the defendants were making claims hostile and adverse to their title. The court was asked to quiet plaintiffs' title. The defendants merely traversed the allegations of ownership and possession of the plaintiffs, and admitted that they claimed title. An amended petition averred that the "Benjamin Say patent," under which the defendants were attempting to claim the property, had never been properly located, and when properly located would be void. It pleaded the provisions of section 251 of the Kentucky Constitution as a bar to any claims the defendant might have to the property under that patent. This was traversed of record. The decree quieted plaintiffs' title to the land described in the petition, which, however, was shown to be only 61.28 acres instead of 200. The defendants appeal.

We regret the appellees' confidence in the strength of their position is such that they submit the case on their part without brief. The correctness of the judgment is not so obvious to us.

It is well-settled that in order to sustain an action brought under section 11, Kentucky Statutes, to quiet title, if the defendants do not set up any counterclaim asking for affirmative relief, the plaintiff must prove title and actual possession of the land. Southern Oil Company v. Holman, 196 Ky. 250, 244 S.W. 762; Boreing v. Garrard, 210 Ky. 135, 275 S.W. 374; Brown v. Martin, 239 Ky. 146, 39 S.W.2d 243; Hale v. Horn, 265 Ky. 560, 97 S.W.2d 402.

The plaintiffs traced title to the land in controversy to a patent for 400 acres issued by the commonwealth of Kentucky to W. M. Stepp on July 21, 1858. The defendants established devolution of title from a grant by the commonwealth of Virginia to Benjamin Say of 15,000 acres in what was then Fayette county, Va., dated November 13, 1786, made pursuant to a survey of March 29, 1785. This same grant was the source of title to a tract of 364 acres also claimed under a Kentucky grant to James Stepp on September 4, 1858, involved in Burger v. Allen, 211 Ky. 742, 277 S.W. 1032.

If the 61.28-acre parcel here involved is in fact embraced by the correctly located Benjamin Say grant, there seems no question but what it is within that portion of the 15,000 acres to which the defendants have record title. And if it is, then the defendants, now appellants, own it by reason of an older and superior title, provided appellees' contentions, as stated in their amended petition, as to the effect of the Constitution, are not sustainable.

As is true here, in Burger v. Allen, supra, the plaintiff must have recovered by virtue of her own title. Though the court found that neither of the defendants had succeeded in proving an unbroken chain of title in himself back to the Benjamin Say grant, yet, as stated in the opinion, "regardless of that fact, if as a matter of fact, when properly located, it covers and embraces the 364 acres of land claimed by appellee herein, her title must fail because inferior to that of the 15,000-acre tract. If the location of that tract of land made by appellants herein is correct, then it covers the lands claimed by appellee, and her title must fail because junior and inferior." We were not able to say--in part, as indicated, because of the omission of certain exhibits--either that the location of the Say grant as made by the appellants was correct or that when properly located it included the tract involved in that suit claimed by the appellees; hence affirmed the judgment of the chancellor.

The record of the Benjamin Say grant before us now is complete. The defendants produced elaborate and...