Whitley County Land Co. v. Powers' Heirs

• Decision Date: 15 February 1912
• Citation: 144 S.W. 2,146 Ky. 801
• Parties: WHITLEY COUNTY LAND CO. v. POWERS' HEIRS.
• Court: Kentucky Court of Appeals

144 S.W. 2

146 Ky. 801

WHITLEY COUNTY LAND CO. v. POWERS' HEIRS.

Court of Appeals of Kentucky.

February 15, 1912

Appeal from Circuit Court, Whitley County.

Action by the Whitley County Land Company against J. R. Powers' Heirs. From a judgment for defendants, plaintiff appeals. Reversed for judgment, as directed.

E. L Stephens, for appellant.

O'Rear & Williams, Hager & Stewart, J. N. Sharp, L. L. Peace, R. L Pope, T. M. Jones, and P. W. Hardin, for appellees.

CARROLL J.

In this action, which was brought by the appellant land company in August, 1907, to enjoin trespasses, there is in controversy 114 acres of land, and the question is whether it is owned by the appellant land company or the appellees, the heirs of J R. Powers. The facts of the case are very brief and simple, but the questions of law arising on the record are quite important.

In 1846 Thomas Foley obtained a patent to a tract of land containing 100 acres in the county of Whitley. Adjoining this tract of land lies the 114 acres of land now in controversy, to which the appellees assert title as the remote vendees of Thomas Foley. They claim that Thomas Foley took adverse possession of the land in controversy in 1858, and that it has been held adversely by him and his vendees, including appellees, since that time. They further assert that, independent of any adverse holding, in the usual meaning of these words, they are entitled to the land in controversy by virtue of a deed made to their ancestor, J. R. Powers, in 1888 by Milton Foley, who, in 1882, obtained a patent for the land. The appellant land company traces its title to the land in controversy to Alfred Clapp, who, in 1874, on a survey made in 1872, obtained a patent to a large body of land in Whitley county, including the land in controversy.

It may be said at this point that it is not disputed that the Clapp patent embraces the land in controversy, or that the appellant land company connects itself with the Clapp patent by a good chain of title, although some question is made as to the validity of this patent. It is also conceded that neither the land company nor any of its vendors ever resided upon, cultivated, or in any way had the actual possession of the land in controversy, and that no acts of physical ownership were exercised over this land by the land company or its vendors until within a few years before the institution of this suit, when it had the land surveyed and the boundary marked.

The title of appellees to the 100 acres for which Thomas Foley obtained a patent in 1846 is not in issue; nor is it denied that Milton Foley, who became the owner of the 100 acres of land, had surveyed and patented, in 1882, the land in controversy, or that, in 1888, he sold and conveyed to J. R. Powers both the land which was patented in 1846 and the land in controversy; the deed bounding and describing both parcels of land as one tract. Thomas Foley lived from 1846 until his death in a house situated on his 100-acre patent, and on the 100-acre patent have always lived his vendees, including Powers. In 1858, when it is claimed Thomas Foley took possession of the land in dispute, it had never been surveyed to or patented by any person, and was surrounded on all sides by the patented lands of Foley and four other persons, who have no connection with this litigation.

Taking up first the question of adverse possession relied on to defeat the claim asserted by the land company, J. R. Powers, who died in 1908, testified that when he obtained a deed from Milton Foley in November, 1888, the Foley 100-acre home tract and the 114 acres in controversy constituted one connected tract, embraced in one boundary, which was conveyed to him. That he moved in the house on the 100-acre tract in which Foley had lived, and resided there continuously, asserting exclusive ownership to the land in controversy, the exterior boundaries of which were well marked, but these marks were the old marks of the lines of the surrounding patents. That the land company did not own any land adjoining the land in controversy, which was bounded by the lands of Jones, Smith, Snyder, Crawley, and the 100-acre Foley patent. He further testified that neither himself nor Foley, from whom he purchased, had ever cleared, cultivated, or fenced any part of the land in controversy, and that there was no house on it. That the extent of his acts of ownership had been confined to the occasional cutting of timber and the payment of taxes. William P. Foley, who was 75 years old when he gave his evidence, said that he was a son of Thomas Foley, and carried the chain when Harmon surveyed the land in controversy, in 1858, for his brother, Milton Foley. That the lines that were run by the surveyor were the lines of older surveys, and that the surveyor did not go all around the land, but only ran a couple of these old lines. That no part of the land in controversy, which was all in timber, had ever been cleared, settled, fenced, or cultivated. Milton Foley, who was 84 years of age, said that he lived some 68 years on the 100-acre patent, and was living there in 1858, when he had the land in controversy surveyed by J. E. Harmon, who happened to pass by, and he produced a receipt for the surveyor's fee given to him by Harmon, reading: "Received of Milton Foley $1.70, part of surveying fee; also $3.30 for W. J. Foley. December 21, 1858." That he had the land resurveyed in 1881 by Chambers, and thereafter purchased a warrant from the Whitley county court, upon which he obtained a patent for the land in 1882. That from the time of the survey in 1858 he claimed the land in controversy in the same manner as he did his home farm, to the full extent of the boundary, treating both tracts as one body of land. Asked what acts of possession he exercised over this land, he said he paid tax on it, cut firewood, and rail timber, and sold a little pine timber, but did not clear any of it, and that all of the exterior lines of this land in controversy were the lines of some of the older surveys that bounded it. Marion Jones, 73 years old, testified that he was a brother-in-law of Milton Foley, and remembered when Harmon made the survey. That Milton Foley cut some timber on the land and paid the taxes on it. That the boundary lines of the land in dispute had been plainly marked for 40 or 50 years, but that every line around the land in controversy was the line of the older patents by which it was surrounded, and the marks he described were the marks of these old lines.

Putting aside for the moment the effect, if any, of Foley's patent to the 100 acres, his patent to the land in controversy in 1882, and the conveyance of both tracts in 1888 to Powers, we think it is very clear that if the claim of adverse possession from 1858 to 1874, when the Clapp patent issued, was asserted against an individual title owner of the land in dispute, it would be entirely insufficient to defeat his right of entry and possession. There was no settlement, no inclosure, no cultivation. The only evidence of adverse possession, aside from the naked claim of ownership, was the payment of taxes, occasional entries on the land for the purpose of cutting timber, and the fact that the lines were marked by the marks of the lines of older and surrounding surveys. The boundary of the land in controversy was never marked by Foley or the surveyor, Harmon. The surveyor simply adopted the marks of the older surrounding patents, and, indeed, only ran two short lines. We have repeatedly and uniformly ruled that the acts we have described are not sufficient to make out a title by adverse holding, no matter for how long a period these acts have continued.

In Wilson v. Stivers, 4 Dana, 634, the court said: "It is well settled by repeated adjudication that the settlement and residence of Stivers and those under whom he claims, outside of the elder patent, did not give them possession of the interference. And it has been also repeatedly decided that, under such circumstances, the occasional use of the land within the interference, as by cutting timber on it, though continued for 20 years, does not give such a possession as bars the right of entry under the elder patent." To the same effect is Lillard v. McGee, 3 J. J. Marsh. 552; Caskey v. Lewis, 15 B. Mon. 27.

In Smith v. Morrow, 7 J. J. Marsh. 422, the court said: "Before the junior patentee can acquire such a possession, we deem it essential that he should have entered upon the interference, and commenced an improvement of a permanent character, if it be woodland in the wilderness state, and carried on the improvement begun by continued acts, until it shall be completed. If an improvement so made shall be enjoyed until there is 20 years complete from the date of such entry, then the statute may be applied from the date of the entry and commencement of the work; but occasional chopping within the interference, and carrying away timber, will not do."

In Trotter v. Cassady, 3 A. K. Marsh. 365, 13 Am. Dec. 183, this court said, on the subject of adverse possession: "It is necessary that the possession claimed as adverse should be shown to be continued and uninterrupted. Or, in other words, if there is any period during the 20 years in which the person having the right of entry could not find an occupant on the land on whom he could bring and sustain his ejectment, that period cannot be counted against him as part of the 20 years."

In Jones v. McCauley, 2 Duv. 14, it is said: "To bar ejectment by time, the adverse possession must have been not only actual, but so continued for 20 years as to have furnished a cause of action every day during that whole period, and consequently, as conclusively and consistently adjudged, claim of title, however notorious, and...