24 Ky.L.Rptr. 371
Court of Appeals of Kentucky.
May 29, 1902.
ACTION: Affirmed.

Appeal from circuit court, Bell county.
"Not to be officially reported."

Action by the Bell County Land & Coal Company against John Hendrickson and others to recover damages for injury to land. Judgment for defendants, and plaintiff appeals.

This is a controversy over the proper location of a patent which issued to J. G. Eve on April 8, 1867, for 200 acres of land in Knox county, under which appellees claim. Appellant claims under junior patents issued in the years 1887 and 1888, so that the only real question in the case is the proper location of the lines of the Eve patent. There is no controversy as to the first, second, third, fourth, fifth, or sixth corners of the Eve patent. The dispute turns on the location of the seventh and eighth corners. The call of the patent line running from the sixth corner is "north, 55 east, 225 poles, to two white oaks on the Knox and Harlan line." At a distance of 170 poles on this line it crosses the Knox and Harlan line, and near by are four white oaks, a chestnut, and chestnut oak, all marked. If the line is continued to the distance called for in the patent, 225 poles, it strikes two white oak stumps in the old line between Knox and Harlan county. The controversy turns on which of these two points is the patent corner. The next call of the patent is "south 300 poles to a stake," and the next "north, 68 west, 85 poles, to the beginning." Appellant claims that the line in dispute should stop where it strikes the Knox and Harlan county line, at 170 poles. Appellees claim that it should run the distance called for in the patent, 225 poles, to the old county line. The situation is shown on the following map, on which the point "A" represents the corner claimed by appellant, and the point "7" the corner claimed by appellees:

If the point "7" is the patent corner, then the next line of the patent, running south 300 poles to a stake, will be represented by the line "7-8" on the plot, and the closing line, running "north, 68 west, 85 poles, to the beginning," will be represented by the line "8-1" on the plot. If the point "A," as claimed by appellant, is the patent corner, then the next line will be represented by the line "A-B," and the closing line by the line "B-1," on the plot. The jury found in favor of appellees, and it is earnestly insisted that the finding cannot be maintained, for the reason that the rule is well settled that course and distance must give way to natural objects found on the ground. While this rule is admitted, it must not be applied where the natural object is not clearly identified, and where it would cause a departure from other natural objects called for in the patent. The patent calls for two white oaks as well as the Harlan county line. At "A," or six poles from the line, there are four white oaks, a chestnut oak, and a chestnut, all marked as corners, and these are evidently the corner of another patent, which was given in evidence on the trial. The point "7" is in the old line between Knox and Harlan counties. There are two white oak stumps there, and it is at the right distance from the admitted corner at "6," according to the patent call. If the next line of the patent is run from the point "A," according to the call, it will cut off the second corner of the patent, and throw it on the outside of the survey, and the closing line of the survey will have to be run to the beginning, in disregard of both course and distance. If the lines are run in this way, the patent will not consist of a contiguous body of land, but of two bodies entirely distinct, one from the other. On the other hand, if the line is run from the point "7" according to the patent call, it will stop at the point "8," and from there the patent call takes you to the beginning, closing the patent, and giving a body of land in the shape of the original plot filed with the survey on which the patent was issued. To run the line from "A" to "B" would be to make the patent include much less land than it calls for. The original plot of the survey may always be used in evidence to show the position of the land, and is evidence of the most potent kind in determining the original location of the lines and corners.

It seems to us that the corner was properly located at the point "7," and that there was no material error in the proceedings.

Judgment affirmed.

Ky.App. 1902.


68 S.W. 842, 24 Ky.L.Rptr. 371


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