16 Ky.L.Rptr. 708
Court of Appeals of Kentucky.
ELLIOTT v. GIBSON et al.
Feb. 13, 1895.
ACTION: Affirmed.


Appeal from circuit court, Bell county.
"Not to be officially reported."
Action by T. S. Gibson and others against John Elliott.
From a judgment for plaintiffs, defendant appeals.

GRACE, J.
This was a suit instituted in the Bell circuit court by the Gibsons against John Elliott for trespass on their lands, and for damages for the cutting, carrying away, and conversion by said Elliott of certain timbers of plaintiffs, resulting in a judgment in favor of plaintiffs. The agreed facts in the case leave the main question to be determined the location and proper boundary lines of the James and Skelton Renfro patent, for 1,500 acres of land, of date August 25, 1851, under which plaintiffs claim, and to which it is agreed they have title; and, by like agreement, the boundary of this survey is again made to depend chiefly on the location and proper running of the third line of same. This line, as called for in the patent, "begins on two beech, near the meeting house, on the line between Knox and Harlan [counties]; thence with same north 1,150 poles, to a chestnut and chestnut oak." The next line runs "thence S., 33 E., 710 poles, to a stake; thence S., 45 W., 180 poles, to the beginning." The parties agree that the two beech trees are the third corner, and the evidence shows that they do not stand in the line between the two counties of Harlan and Knox, but stand six poles or more east of said line. This corner is clearly identified. It is further agreed that the line between Harlan and Knox counties, as it existed at the date of the patent, is correctly laid down on the surveyor's map filed in this case; as also that the red line on said map, running north 1,150 poles, from the two beech, is correctly laid down on same, as it would have run at the date of said patent. It appears from an inspection of this map that the due north line claimed by the Gibsons runs nearly parallel with the division line between the two counties for a few poles; that it there touches and runs just a little west of said division line for a short distance; that, after this, the division line bears materially to the west, then comes nearly back again, and runs nearly parallel some distance, and then again bears materially and permanently to the west of the due north line; so that, at the end of the 1,150 poles, the call of this line in the patent, as run on this division line, has varied to the west some 200 or more poles from the due north line. The next call of the patent is S., 33 E., 710 poles, and would run from this point on the division line southwest of and miss the land of defendant, Elliott, where the timber was cut; while, if the 1,150 poles is run due north from the two beech, as called, and then the patent call S., 33 E., 710 poles, it will run northeast of and embrace the lands claimed by Elliott where the timber was cut. So that it is manifest that from the calls of the patent for this line, running from the two beech north, with the Harlan and Knox counties, a line cannot be so run as to comply with both requirements of the patent. If you run north as called, you leave the division line first slightly, but soon materially, to the left or west; and if you run from the two beech, with the county division line, you leave the straight line due north first slightly, and then materially, to the right or east of you; this division line being located on the dividing ridge, and with the water divide of same between the waters of Straight creek on the east and of several other small streams on the west, and presenting an exceedingly irregular, zigzag, unsightly course (though clearly ascertainable and identified), making nearly 100 different courses and corners in running out the 1,150 poles called for. And of course, by this irregular, crooked course, verging materially, as it does, to the left or west, the distance so run by no means extends so far north as a straight line due north 1,150 poles from the two beech.

We take it that, as the patent calls cannot both be true, the material thing to determine, if possible, by any legitimate evidence, is, which line was actually run or designated at the time of the running by the surveyor? On this question the Gibsons take the testimony of one B. A. Rice, now an old man, who says that he made out the plat of this survey for the surveyor who made same in 1850, and that the surveyor told him that he did not actually run the line from the two beech, but that he simply laid it down due north the 1,150 poles; that he, said surveyor, knew the county division line ran north, and so he laid the county line north 1,150 poles to the chestnut and chestnut oak. But, waiving this oral testimony, we think there is one thing apparent in this case which does clearly indicate and show what the surveyor actually did at that time, or what he certified that he did (which has the same legal effect), and that is the plat made out and returned by him, with the certificate of survey and warrant under which the land was entered, to the land office, and on which the patent issued. This plat is filed in this case, and an examination of it shows conclusively that this line from the two beech trees was and is laid down as running due north a straight line 1,150 poles, as called for by the patent, and that it does not indicate the irregular, zigzag line, verging from time to time to the west, and having on same nearly 100 lines and corners, as it would have done and must have done had the surveyor run on or intended to lay down the division line between the two counties. Plats of this kind, made by the surveyor at the time of the survey, and returned by him to the office, have been often used by this court for the purpose of determining the actual survey as laid, and have always been regarded as a high degree of evidence. We regard it as conclusive in this case. The judge who tried this case (without a jury) in the court below doubtless so held same, and bases his decision, in favor of plaintiffs, on same. There are other well-defined rules applicable to a determination of this survey, and to determine the location of a missing corner, as the chestnut and chestnut oak, at the north end of the 1,150 poles, that, applied to this case, would as certainly give the land in dispute to the plaintiffs, the Gibsons, even though they were required to run on the division county line, instead of the straight line due north from the two beech; but this view was not presented or relied on by counsel, and need not be noticed.

The judgment is affirmed.

Ky.App. 1895.
ELLIOTT v. GIBSON et al.
29 S.W. 620, 16 Ky.L.Rptr. 708


     

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