Willis v. Boyd
| Decision Date | 29 May 1928 |
| Citation | 224 Ky. 732,7 S.W.2d 216 |
| Parties | WILLIS et al. v. BOYD. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, McCracken County.
Action by A. E. Boyd against J. C. Willis and others. Judgment for plaintiff, and defendants appeal. Reversed, with instructions to dismiss the petition.
A. M Nichols and Wheeler & Hughes, all of Paducah, for appellants.
A. E Boyd, of Paducah, for appellee.
By written contract executed on the 11th day of October, 1923 the county of McCracken, by and through its county judge and county commissioners composing its fiscal court, leased to A. E. Boyd for a term of 50 years the right to extract sand and gravel in all that part of the Ohio river which lies in McCracken county north of the thread of the stream, more particularly described as follows:
"Beginning at the McCracken & Livingston county line in the thread of the stream of said Ohio river; thence across said river with the Ballard & McCracken county line to low-water mark in the Illinois line; thence up said river with the line of low water mark to the McCracken & Livingston county line; thence with Livingston & McCracken county line to the thread of the stream of said river, to the point of beginning."
The lease gave to A. E. Boyd the exclusive right to dig, pump, or take from the bed of the river the sand and gravel lying thereon during the period named. It was further provided that the first payment of the yearly rentals was to be paid "immediately after the said A. E. Boyd establishes by any suit at law or otherwise that said McCracken county has a right to convey title to the sand and gravel in the territory mentioned, * * * to be paid thereafter during the month of January for each and every year during the term of this contract or lease," first payment to be made on or before January 1, 1928, upon penalty of forfeiture for nonperformance. By its terms the lease was made assignable, and on his part Boyd agreed to immediately take such steps as he might deem proper to validate the lease.
Section 4702, c. 127, Kentucky Statutes, provides:
The words in plain type constitute the section as it was at the time this contract was made, and the italicized words or second paragraph were added by amendment on March 27, 1926, S. A. c. 184, p. 864. Also, at the time the contract was made section 4703 gave an actual settler on vacant lands a preemption right to the extent of 100 acres, and provided generally for an entry and survey of vacant lands upon paying the county court the sum of not less than $5 per acre on as much as 200 acres of land in one county. By the same amendment to which reference is made above there was added to this section:
"All that portion of the bed of the Ohio river, lying north of the thread of the stream except such portions as may be accretions to islands privately owned, is to be held and used for county purposes by the respective counties of this commonwealth bordering on said Ohio river; and the county court of each county may use, let or lease said river bed for county purposes, upon such terms and conditions as to it may appear to be beneficial to said county; and any contract of leasing that has been made, or that may hereafter be made, by any such county court of such river bed for any sand and gravel rights, for or on behalf of said county, is hereby declared to convey full right and title to the lessee to the exclusive use of all sand and gravel deposits in said river bed to the extent embraced in such contract of leasing."
Sections 4704, 4705, of the former chapter, provided for a survey and plat to be deposited in the registrar's office, and for a patent to issue, together with the minutiæ to be followed. These sections remain practically unchanged. The amendment supra, adds two additional sections concerning the patent of surface lands, a matter with which we are not now concerned. Upon the above amendment taking effect Boyd paid the fiscal court the annual rental fixed in the contract, and...
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