Wilson v. Pioneer Coal Co.

• Decision Date: 06 May 1921
• Citation: 231 S.W. 37,191 Ky. 408
• Parties: WILSON v. PIONEER COAL CO.
• Court: Kentucky Court of Appeals

231 S.W. 37

191 Ky. 408

WILSON v. PIONEER COAL CO.

Court of Appeals of Kentucky.

May 6, 1921

Appeal from Circuit Court, Bell county.

Action by Annie Wilson against the Pioneer Coal Company. From judgment for defendant, plaintiff appeals. Judgment reversed with directions to dismiss defendant's counterclaim, and quiet plaintiff's title.

J. G Rollins, of Pineville, for appellant.

James H. Jeffries, of Pineville, for appellee.

CLARKE J.

Alleging that she was the owner and in possession of a described tract of land containing less than half an acre, and that the defendant was interfering with her enjoyment and possession of same and had built a fence across the public road thereto the plaintiff, Annie Wilson, now appellant, instituted this action in equity to quiet her title, and also to enjoin the defendant from interfering with her possession of the land and from obstructing the road leading thereto.

The defendant filed an answer and counterclaim of six paragraphs, the first of which is a traverse of the allegations of the petition and contains an admission that the defendant has no title to or interest in the land involved except as stated in succeeding paragraphs. In the second paragraph it is pleaded that the land claimed by plaintiff, together with a small adjoining parcel, was dedicated more than 30 years before the institution of this suit, by the then owners of same, to the general public living in the neighborhood, for burial and graveyard purposes. In the third paragraph it is alleged that when plaintiff procured her deed to the land same was in the actual adverse possession of the persons buried thereon, and that her deed was therefore champertous and void. In the fourth paragraph it is alleged that all of the land claimed by plaintiff is covered by a patent for 50,000 acres issued to Abraham Moorehouse in 1799, and that same is elder and superior to plaintiff's title. In the fifth paragraph it is alleged that plaintiff and her brothers, by the terms of their deed in conveying a large adjoining tract of land on Kettle Island creek to A. J. Asher in October, 1900, recognized and confirmed the former dedication of the tract and themselves dedicated same to defendant and the public for graveyard purposes. In the sixth paragraph defendant alleged that plaintiff's claim of title to the small tract and the right to use the road or passway to same over its land is a cloud upon its title to lands adjoining that claimed by plaintiff.

The prayer is that plaintiff's petition be dismissed, and that the court adjudge that the tract of land claimed by plaintiff had been dedicated to the public as a graveyard and for burial purposes, and that it cannot be used by plaintiff or others for secular or business purposes.

The affirmative allegations of the answer and counterclaim having been traversed by reply, the proof was heard and transcribed in open court by agreement. This appeal is from the chancellor's judgment dismissing the petition and granting defendant the affirmative relief sought by its counterclaim.

The land claimed by plaintiff lies on the left-hand side of the crest and at the end of the ridge which forms the watershed between the left-hand and right-hand forks of Kettle Island creek, and includes a small piece of bottom land, formed about 1876 by a change in the course of the left-hand fork of the creek. The tract which defendant claims has been dedicated to the public as a graveyard, and which we shall refer to as the graveyard tract, is the whole of the tract claimed by plaintiff and a small tract adjoining same and lying on the right-hand side and at the tip end of the crest of the dividing ridge.

There is practically no conflict in the evidence, and the pertinent facts are these. Plaintiff was in the actual possession of the land claimed by her when she instituted this action, and her tenant was conducting a store in a building he had constructed on same in competition with defendant's commissary. Defendant owns all of the land on Kettle Island creek and its two forks within a mile of the forks, except this graveyard tract, which it had inclosed by a fence, but which it admits it did not own or have in possession.

Defendant acquired the land surrounding the graveyard tract in 1911 by one deed from the Edgemont Coal Company, which likewise acquired it by a single deed from A. J. Asher in 1907, but in both of these deeds the lands on the two forks of the creek are described separately, just as in separate deeds to Asher from the Wilsons for the land on the one fork and from Abraham Lock on the other. Neither of these deeds to Asher covered any portion of the graveyard tract, although each referred to same as "the graveyard" in describing the lines where same adjoined the lands conveyed.

In 1870, which is as far back as the titles are traced, Thomas M. Lock lived upon and claimed to own the lands on the left-hand fork of the creek, and Abraham Lock lived upon and claimed to own the lands on the right-hand fork. Thomas M. Lock conveyed his land in 1875 by deed to Jas. W. Ward, who took possession of, lived upon, and claimed to own same, until he sold and conveyed it to J. D. Asher on November 16, 1877. Ward remained upon the land as Asher's tenant until the latter sold and conveyed same in 1880 to W. F. M. Wilson, who took possession and lived upon the land until his death intestate about 1889. His children, plaintiff and her two brothers, were in possession of the land by tenants until 1900, when they conveyed all of same to A. J. Asher, except the small tract involved here, which her brothers later conveyed to plaintiff. Hence plaintiff has proven that she and her brothers and those under whom they claimed were in the actual, adverse possession of all the land covered by their deeds continuously from 1870 until 1900, or for 30 years. Therefore, if these deeds cover the tract in controversy, plaintiff and her brothers had a perfect title to same by adverse possession for more than the statutory period, when in 1900 they made the deed to Asher for the other lands admittedly covered by those deeds, unless, as claimed by defendant, same had been dedicated as a graveyard theretofore, or was so dedicated by that deed. Since, as this court has frequently held, title by adverse possession will support an action to quiet title, it is obvious there is no merit in appellee's first two contentions that the dismissal of plaintiff's petition was proper because of her failure to trace her title back to the commonwealth, and because of the fact the land she now claims is covered by the old patent for 50,000 acres issued to Abraham Moorehouse in 1799. Le Moyne v. Hays, 145 Ky. 415, 140 S.W. 552; Williams v. Lowe, 175 Ky. 369, 194 S.W. 342.

The questions upon which her title depends are, as we have seen: (1) Do the deeds to her father and those under whom he claimed, cover the tract here involved? and (2) If so, has same been dedicated to the public for burial purposes?

The two lines involved are described in substantially the same way in each of the deeds under which plaintiff claims, and also in the deeds prior to 1900 conveying the adjoining lands on the right-hand fork of the creek. These two lines which we have italicized and the lines preceding and following them are thus described in the deed to appellant's father:

"Thence with said Rice's line

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