|16 Ky.L.Rptr. 745|
|Court of Appeals of Kentucky.|
|LOGAN v. EVANS.|
|Feb. 20, 1895.|
Appeal from court of common pleas, Knox county.
"Not to be officially reported."
Action by A. C. Evans, plaintiff, against Cogar Logan. From a judgment for plaintiff, defendant appeals.
PRYOR, C. J. The appellant and the appellee, being desirous of settling the boundary of their respective lands, entered into this agreement: "We, the undersigned, agree and bind themselves to start and run and survey a conditional line between Cogar Logan and A. C. Evans, and to run by the calls of the old Chares Gattiff deed to Aaron Gattiff, to begin at a dead black gum, standing in the old fence row, running therein N., 77 W., to a double chestnut and dogwood, and reversing said line from the gum to the river, which will be S., 77 E. And we, the undersigned, bind ourselves to make this the line between us. [Signed] Cogar Logan. A. C. Evans." The appellant, Logan, as is alleged by the appellee, has gone over the line from the black gum to the river onto the land of the appellee, and hence this action. There were a verdict and judgment for the appellee, and the case is here without a bill of evidence or instructions. The appellant is claiming, however, that, upon the face of the pleadings, the judgment is erroneous, because, he says, by the agreement, which both sides concede determines the true boundary, the line beginning at the black gum was to run N., 77 W., to a double chestnut and dogwood, and reversing the line from the gum to the river would be S., 77 E.; when by judgment it is said, "It appearing from the survey made that the old Gattiff line, from the gum to the double chestnut and dogwood, is 73 1/4 W., and reversing that line from the gum to the river is S., 73 1/4 E.," the land in controversy is the property of the appellee. If the degree N., 77 W., will take you in a direct line to the object which is recognized as the real corner,-the double chestnut and dogwood,-then the contention of the appellant would, doubtless, be correct. The degree from the gum to the object agreed upon is the proper survey, and the same degree must prevail from the gum to the river. When this old Gattiff line was surveyed does not appear, but, either from mistake or the variation of the needle, it is evident that the degree called for will not take the surveyor to the object where the parties propose to run. It is not the degree, however, stated in the agreement, that is to govern, but the direct line from the one object to the other is what the parties agreed on. The meaning of the parties is apparent from a proper construction of their agreement. It explains itself. They were to run from the gum to the chestnut and dogwood, whether 73 or 77 degrees is immaterial; and then from the gum to the river, reversing the line. The degree called for must give way to that which will run to the objects in the old Gattiff line. They were running the line from one point to another, and the degree called for was merely descriptive, and the variation from the old survey, as to the degree, or from what the parties supposed the true degree would be, cannot affect the question involved.
Judgment affirmed. Ky.App. 1895. LOGAN v. EVANS. 29 S.W. 636, 16 Ky.L.Rptr. 745
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