Case one of Two
160 Ky. 210
Court of Appeals of Kentucky.
INTERSTATE COAL CO. v. SPROUL.
Oct. 13, 1914.
ACTION: Reversed and remanded.


Appeal from Circuit Court, Knox County.
Action by J. C. Sproul against the Interstate Coal Company.
Judgment for plaintiff, and defendant appeals.

HOBSON, C. J.
J. C. Sproul brought this suit against the Interstate Coal Company to recover 25 acres of land, which, as he alleged, was covered by a patent from the commonwealth to G. W. Sproul, of date October 28, 1891, and had been conveyed to him by the patentee. In the circuit court he recovered judgment. The coal company appeals.

The calls of his patent are as follows:
"Beginning at a white oak on top of the ridge and by the side of the road leading from Andy Ballou to A. D. Foxes and on Tarlton Lunsford's line, it being a corner of a 100-acre survey made in the name of A. Legere; thence with Legere's line N. 2 E. 160 poles to a stake, corner of same; thence same course continued 25 poles to chestnut, Berry Lathram corner; thence with said line N. 15 E. 148 poles to a stake, corner of same; thence S. 88 W. 150 poles to a Spanish oak, corner to same; thence E. 25 poles to a Spanish oak, Lunsford's corner; thence with Lunsford's line to the beginning."

It will be observed that this patent calls for the corners and lines of a 100- acre survey made in the name of A. Legere, and also a 100-acre survey made to Lathram. The Lathram survey was made October 24, 1848. Its calls are as follows:
"Being in the county of Knox, on the dividing ridge between Poplar and Brush creek to include Benjamin Lathram's house and improvements and bounded as follows, to wit: Beginning at a Spanish oak standing on the north side of a hill; thence S. 10 E. 80 poles to two chestnut oaks; thence S. 60 E. 120 poles to a chestnut; thence N. 15 E. 148 poles to a stake; thence S. 150 poles to the beginning."

This survey is represented on the following map by the lines 1, 2, 3, 4, the beginning corner at 1 being undisputed; the dispute between the parties being as to the corners at 3 and 4, the plaintiff locating them at 3 and 4, the defendant at 12 and 10.

The calls of the Legere patent, dated June 1, 1859, the survey having been made June 8, 1858, are as follows:
"Beginning at two chestnut oaks and chestnut corner of a survey made in the name of Benjamin Lathram; thence N. 15 E. 25 poles to a poplar; thence S. 85 W. 45 poles to a chestnut; thence S. 49 W. 44 poles to a sugar tree and white oak; thence S. 29 W. 40 poles to a sugar tree; thence 55 poles to a hickory on the top of a ridge; thence S. 63 W. 30 poles to a white oak; thence S. 58 E. 280 poles to a white oak; thence N. 2 E. 160 poles to a stake; thence S. 15 W. 25 poles to a chestnut said Lathram's corner; thence N. 60 W. 120 poles to two chestnut oaks; thence N. 10 W. 80 poles to the beginning."

This survey is substantially indicated on the map by the lines 1, 5, 6, 7, 8, 9, 3, 2, 1, as located by the plaintiff. The defendant insists that the line 9, 3 is not properly located, and should be run along the line 13, 12. On July 7, 1858, T. Lunsford made a survey of 100 acres. He and Legere then lived neighbors, and this survey lay to the east of Legere's 100-acre survey made June 8, 1858. In 1871 Lunsford and Ballou, to whom Legere had sold his land, had the line between them processioned, and in that proceeding they by agreement established, as the line between them, the public road, which is indicated on the plot by the dotted crooked line running from 9 to 3. The land in controversy in this action lies between the line 9, 3 and the county road, and is marked on the plot "contest."

The first question made in the case is that the patent under which Sproul claims is void for uncertainty. He testified on the trial that he was the surveyor who made the survey; that he began the survey at a white oak standing at 9 on the plot; that he ran a few poles on the line 9, 3 but did no other surveying (that is, he only went through the form of starting a survey at 9 and stretching the chain a few times along the line 9, 3). His testimony on the subject is as follows: "Q. Tell the jury and court about what proportion or what part of that 160 poles line you did actually run on the ground at the time you made the original survey of the 25 acres in the name of George Sproul? A. Just a few poles; I cannot say how many now; but maybe six, or might have been four, just enough to make a lawful survey. It might have been ten."

If we start at 9 and run the first call of the patent to Sproul, it takes us to the point X; disregarding the course, the second call then brings us back to 3, claimed at Lathram's corner; the third call takes us from 3 to 2 with Lathram's line; the fourth call takes us from 2 to 1, Lathram's beginning corner, which is well established. The remaining calls of the Sproul patent are in these words:
"Thence E. 25 poles to a Spanish oak, Lunsford's corner; thence with Lunsford's line to the beginning."

If we run 25 poles from 1, we reach the point Y on the plot, and we do not strike any corner of Lunsford. No Spanish oak, corner to Lunsford, is shown to which this line may be run, if the course and distance given in the patent are disregarded. If we continue the line on the course given in the patent, until we strike Lunsford, it takes us to the figure "10," but we do not strike there any Spanish oak corner. Lunsford has no line running from either Y or 10 to the beginning. Sproul undertakes to locate his patent by running from 1 to 10, from 10 to 11, from 11 to 14, thence with the county road to the beginning. But, aside from the very singular shape of the tract of land which this would give, there seems to be no reason why he should run to 10, or stop at 11. Lunsford, it appears from the proof, had two surveys, and he also had the agreed line which he had made with Ballou in the processioning proceeding. Which of these lines we are to run with is left to conjecture. If we close the survey from Y by going straight to the beginning, we run across both the patent of Lathram and Legere, and evidently this was not intended. If we do not do this, we are left entirely to conjecture how the patent is to be closed, and in view of the fact that no survey was made of these lines, and there was in fact no location of them, there is nothing to aid the patent or to indicate how it is to be closed.

The calls of the Lunsford 100-acre survey of date July 7, 1858, the patent issuing June 1, 1859, are as follows:
"Beginning at the table rock corner of the said Lunsford; thence S. 50 W. 50 poles to a chestnut; thence S. 2 W. 225 poles to a hickory and locust near the top of a ridge at the head of Big Poplar creek; thence S. 63 E. 80 poles to three poplars near said branch; thence W. 65 E. 50 poles to a stake corner of said Lunsford; thence with said Lunsford's line to the beginning."

According to the location of this patent by the plaintiff, it does not adjoin the Legere patent or touch it at all, and a considerable body of land lies between the two. According to the location of it by the defendant, however, it conflicted with the Legere patent, and for this reason the county road was by agreement made the dividing line between them; Legere's corner being then established at 9. How the Sproul patent is to be closed, after we leave the point 1 on the plot, is too uncertain for judicial ascertainment; the lines not in fact having been surveyed or located in any way, and there being nothing from which it can be determined with certainty on the face of the patent what corner or line or lines of Lunsford are to be followed. The corner, to which the call "thence E. 25 poles to a Spanish oak" is to be run, is wholly a matter to be guessed; and, if we pass this, there is as much reason for locating the Sproul patent according to the lines of the Lunsford survey as there is upon any other line.

We therefore conclude that the patent is void for uncertainty, and that the circuit court should have sustained the defendant's motion for a peremptory instruction to the jury to find for it.

The great weight of the evidence shows that there was in fact no vacant land between the Lunsford patent and the Legere patent. These surveys were made within about a month of each other, and there seems to be no adequate reason for the establishment of the county road as the agreed line in the proceeding to procession the lines, except that in that proceeding a conflict between the two patents had been discovered.

Judgment reversed, and cause remanded for further proceedings consistent herewith.

Ky.App. 1914.
INTERSTATE COAL CO. v. SPROUL.
169 S.W. 698, 160 Ky. 210
Case two of two
183 Ky. 279
Court of Appeals of Kentucky.
SPROUL v. INTERSTATE COAL CO.
Feb. 14, 1919.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
Action by J. C. Sproul against the Interstate Coal Company.
From a judgment for defendant, plaintiff appeals.

CLARKE, J.
As was stated in the opinion upon the former appeal of this case, which is reported in 160 Ky. 211, 169 S. W. 698, and contains copies of the map and patents referred to herein, J. C. Sproul brought this suit against the Interstate Coal Company to recover 25 acres of land which as he alleged was covered by a patent from the commonwealth to his brother, G. W. Sproul, of date October 28, 1891, and had been conveyed to him by the patentee.

This patent upon the former appeal was held to be void for uncertainty. Upon the return of the case, plaintiff introduced more evidence than on the first trial, tending to prove that the white oak, which is located at figure 9 on the map, was a corner to the A. Legere patent, and the beginning corner of his patent, and that the chestnut, Berry Lathram's corner, called for as a corner in his patent, is a well-known object and located at figure 3; he also introduced new evidence in an attempt to show that his patent might be closed from figure 1, to reach which all called for courses and distances had been disregarded, by following some 18 or more lines of a 200-acre Lunsford survey, not referred to in the evidence upon the former trial, to his beginning corner, the white oak on the road at figure 9. It will be noticed that the only calls in his patent from the Spanish oak, Lathram's corner, located at figure 1 on the map, to his beginning corner, are "thence E. 25 poles to a Spanish oak, Lunsford's corner; thence with Lunsford's line to the beginning"--which rather clearly indicates that the survey was to be closed from Lunsford's Spanish oak corner by one or possibly more lines of his 100-acre patent previously referred to in plaintiff's patent, and it does not seem to have occurred until quite recently to plaintiff, who himself made this survey, that this was a reference to Lunsford's 200-acre survey. So we do not think this effort to close his survey conforms in any substantial manner with the calls of his patent, or that the new evidence introduced by him upon the last trial upon this question was any more satisfactory than the theory advanced by him for closing the patent upon the former trial, which was rejected by this court; but, even if we might concede that the theory now advanced by him for closing his survey is a possible compliance with the calls of his patent, it would still be impossible in our judgment, upon his evidence upon the last trial, to make his patent cover the land in controversy, or any land.

He testified that he made the survey for his brother upon which his patent was issued; that he had theretofore twice surveyed for Lunsford the processioner's lines around his lands, including the public road from 9 to 14 on the map, and that there was at that time a fence from 14 to Lathram's chestnut corner at figure 3. He further admits he did not make an actual survey of the lines supposed to connect his white oak and chestnut corners, and it is apparent from reading the Legere patent that to connect these corners he simply copied the calls from the Legere patent, because both his patent and the Legere patent, to connect the white oak and chestnut, call for substantially the same courses and identical distances, which by survey do not even approximately connect these two corners. As stated in the former appeal, this same uncertainty as to the proper location of the connecting lines between the white oak and chestnut had resulted more than 20 years before in a controversy between Lunsford and Ballou, who then owned the Legere patent, by whose respective contentions these patents overlapped, and that they had in 1871 settled this controversy by having the lines processioned, and which were thus located so as to run with the county road, the crooked dotted line from 9 to 14, and with the fence from 14 to 3; so that, when plaintiff attempted to locate his survey and patent in 1891, and copied from the Legere patent two intervening lines supposed to connect the white oak and chestnut, which he did not survey, and which did not accomplish this result, he must have known that the lines of the Legere patent which connected the white oak and chestnut had been definitely located upon the land by processioners for the adjoining landowners, and that the error in the courses and distances by which these lines were described in the Legere patent had been corrected by the visible and marked line between the white oak and the chestnut, running with the county road and the fence, as indicated by the line 9 to 14 to 3 on the map, and he cannot now get away from this long-established location of these lines by a resort to a method of survey which would have been acceptable in the absence of an established, marked, and known location theretofore made by the parties upon the land, because of the familiar rule that courses and distances and approved methods of surveying them must yield to known objects and monuments called for, and here the Legere lines called for were, as they had been located and marked on the ground, known objects, just as were the white oak and chestnut corners.

When plaintiff's lines connecting the white oak and chestnut are run with the lines of the Legere patent called for as they had been established, and of which plaintiff must have known before he made his survey, they coincide with the lines of the Lunsford 200-acre survey, which he now claims as his closing lines, but which evidently were not so regarded when the survey was made, as the reference in the patent is only to Lunsford's 100-acre patent; nor does such a possibility seem to have occurred to plaintiff himself until after the first trial of the case.

It is therefore apparent that, even if we accept the introduction upon the last trial of the 200-acre Lunsford patent as affording a possible basis for closing plaintiff's survey from the Spanish oak called for in his patent as Lunsford's corner, the location of his patent is shown to be even more indefinite and impossible than upon the first trial, because running with Legere's lines as they had been located and were then visibly marked upon the land, the first two lines of his patent pass along the eastern side of the land in controversy and coincide with his closing lines, and therefore include, not only none of the land in controversy, but no land whatever. Consequently the trial court did not err in sustaining, at the close of the evidence introduced in plaintiff's behalf, the defendant's motion for a peremptory instruction.

Wherefore the judgment is affirmed.

Ky.App. 1919.
SPROUL v. INTERSTATE COAL CO.
207 S.W. 715, 183 Ky. 279


     

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