30 Ky.L.Rptr. 378
Court of Appeals of Kentucky.
Jan. 10, 1907.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.

"Not to be officially reported."

Action by C. W. Taylor against Samuel S. Woolum and others.

From a judgment in favor of defendants, plaintiff appeals.

The appellant, alleging that he was the owner and in possession of two tracts of land that will be hereafter described, brought this suit against appellees, asking that they be enjoined and restrained from trespassing upon the land and cutting and removing timber therefrom, and also sought judgment against them for the value of the timber removed by them from the land. The answer traversed generally the averments of the petition. On a hearing of the case, the petition was dismissed. The land upon which the alleged trespasses were committed consists of two tracts: The first: "Beginning at a lynn tree, and running east to the creek bank, to 3 beeches; thence up the creek, to the narrows, to a conditional line between Peter Hammons, Sr., and Jerry Hammons, to 2 beeches; thence, with said conditional line, to the gap of the ridge on the west side of a 50-acre tract bought by Peter Hammons, Sr., of John R. Thatcher; thence, with the lines of the 50 acres, to the beginning." The second: "Beginning at Samuel S. Woolum's 25-acre survey, running with the same; thence, running up the creek for quantity, to Samuel S. Woolum's line at the upper end, and to include all the putts of a survey made by said James Hammons, Sr., and containing 129 1/2 acres of land." This land was purchased by appellant in 1858. The first- mentioned tract was conveyed to him by deed; the last-named, by bond.

It will be observed that the boundary lines of the appellant's land are very imperfectly described, and it is difficult to ascertain from the record the correct location of these lines. Two plats are filed, one made by Westerfield, who surveyed the land for the appellant, and the other by Barnar, who surveyed it for the appellees. Neither of these plats contains an accurate survey of the lands in controversy, and the marks on each being different adds to the difficulty in arriving at anything like an intelligent understanding of the case. It seems probable that this confusion and uncertainty in the plats made by the surveyors is due to the fact that they did not have any previous survey or well-identified monuments to go by. The exterior lines in the description of the tracts are located in a different place on each map. On the Westerfield plat there are marks made by the surveyor indicating that timber was cut within the lines of the appellant's land. On the Barnar plat the lines of appellant's land do not touch the point where the alleged trespasses were committed. Appellant has lived on the land described in the petition, and upon which the alleged trespasses were committed, since 1858; but he does not know where the exterior lines are located, nor does it appear that any correct survey has ever been made, or that the lands have ever been inclosed. It is not disputed that appellant is the owner of the two tracts mentioned, the only question being the location of the exterior lines of the land; and, in the absence of satisfactory evidence as to the location of these lines, we do not feel authorized to hold that the lower court was in error in deciding that no trespasses had been committed upon the land owned by appellant.

Wherefore the judgment is affirmed.

Ky.App. 1907.


98 S.W. 1006, 30 Ky.L.Rptr. 378


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