25 Ky.L.Rptr. 1242
Court of Appeals of Kentucky.
BRYANT et al. v. MAIN.
Dec. 15, 1903.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by Pleasant Bryant and others against James Main.
From a judgment for defendant, plaintiffs appeal.

HOBSON, J.
Pursuant to two land warrants issued by the Knox county court to appellee, James Main, J. C. Sprouls, the county surveyor of Knox county, on December 13, 1889, laid off and surveyed to Main one tract of 140 acres, and another near by, but distinct from it, of 10 acres. Pleasant Bryant and Hugh Foley were the chain carriers. Main had understood that Sprouls had been surveying in the neighborhood, and, after telling Sprouls what land he wanted to run off, asked him if he had ever run it for any one else. Sprouls said he had not, that it was vacant land, and told Main to run it. Main told him what he had heard about his running some land previous to that, and that he wanted him to tell him if the land was not vacant, and Sprouls replied that he had not run it. Bryant, who was present, said that Main was very fortunate in having the warrants and running it that day, and if Main had not done so it was their business that day to have run the land. Main paid Bryant his fees as chain carrier, he also paid Sprouls his fees for surveying, and in addition the register's fees for obtaining a patent, and Sprouls agreed to send the surveys into the register and get the patent. The patent did not come, and finally Main saw Sprouls, and told him if he was not going to send up the papers to give him a copy and he would send them up. Sprouls promised to do this. Some time thereafter Sprouls sent Main what purported to be a copy of his surveys made on December 13, 1889, but the paper so sent was a survey of 150 acres in one body, and embraced different land from that which Main had in fact taken up. About this time Bryant and William T. Golden produced a patent from the commonwealth issued on August 30, 1890, on a survey made by Sprouls of date November 1, 1889, for 100 acres, covering the greater part of the land surveyed by Main on December 13, 1889. While this patent was issued to Golden and Bryant, Sprouls was in fact the owner of one-third of it, and they afterwards executed to him a title bond or deed transferring this interest to him. Golden also transferred an interest in the land to appellant H. B. Lewallen, but none of the transfers to Sprouls or Lewallen are copied in the record. Sprouls then offered to pay back to Main the money that he had paid him in December, 1889, for making the survey and for the register'sb fees for the patent, but Main refused to accept it. Main had entered on the land after it was laid off to him, and inclosed a part of it, claiming to the extent of his boundaries. This action was brought by Bryant, Lewallen, and Sprouls against Main to recover damages for timber cut by Main from the land. Main, by his answer, denied that their survey was made on November 1, 1889, or before his survey. He also pleaded an estoppel on the ground that Sprouls, Bryant, and Golden had allowed him to make his survey under the circumstances above stated, Golden also being present when it was made, and giving him no notice of their claim. The defendants replied, denying the facts alleged to make out the estoppel, and, the case being submitted, the circuit judge gave judgment in favor of Main. From this judgment Lewallen, Bryant, and Sprouls appeal.

While the evidence was conflicting, on the whole it sustains the conclusion of the chancellor. There is neither pleading nor proof in the record that Lewallen was a bona fide purchaser without notice. On the contrary, Main's possession was sufficient to put him on notice. It is earnestly insisted that the answer of Main pleading the estoppel is insufficient, in that it does not show that Main did not know at the time he made his surveys that the land had been previously surveyed with a view to its appropriation, or that the representations then made to him by the appellants were made with knowledge, actual or virtual, of the facts, or that they were made with the intention that Main should act upon them. But there was no demurrer to the answer. Its allegations were controverted, and if it was defective it was cured by the proof and judgment. The proof shows that the representations as above stated were made by Sprouls and Bryant, and, while it is not clear that Golden heard them, he was present at the survey, and, knowing the purpose for which it was made, he could not remain silent, and allow Main to survey the land, without notice of his claim, when he knew that one of his partners, Sprouls, was making the survey, and the other, Bryant, was acting as chain carrier, both receiving from Main their pay for doing so; for he knew that Main was taking up the land as vacant, and that his partners, Sprouls and Bryant, were helping him to do so, and he was bound to understand that this was calculated to mislead Main into the belief that they had no claim to the land. The plaintiffs undertook to show that they did not know at the time where their survey was, and that Bryant and Sprouls, in effect, told Main this, or told him that they did not know whether the land was vacant; but the great weight of the evidence is against them in this, and we agree with the chancellor that they were charged with notice that the land Main was surveying is the same as that embraced in their patent. The subsequent conduct of Sprouls is inconsistent with any other conclusion, and so is the long delay of the plaintiffs to claim the land. Main was an old man, and had nothing in his hands to show his right to the land, while they had a patent for it. The calls of the survey, as given in their patents, are as follows: "Beginning at a white oak and hickory, standing on Harp's creek side, it being a corner of a one hundred acre survey made in the name of Levi Goin and beginning corner of a hundred acre survey made in the name of James Lee, thence 79 E. 28 poles to a poplar, Goin corner, thence S. 59 E. 36 poles to a black oak, locust and white oak, the beginning corner of said Goin, standing on the top of the ridge between Harp's and Greasy creeks and on the Knox and Bell county line, thence with the Knox and Bell line and top of ridge S. 10 E. 300 poles to the corner of Knox and Whitley county, thence with said Knox and Whitley county line N. 87 W. 100 poles, Mack Lee line, thence with said lines to Lewis Sears lines, thence with said Sears lines to a survey made for James Lee, thence with said Lee lines to the beginning." The calls of Main's two surveys are as follows: "(1) 140 acres. Beginning at a beech, a corner of a hundred acre survey made in the name of Lewis Sears; thence N. 53 W. 80 poles to a poplar and dogwood, corner of same; thence S. 60 E. 80 poles to a stake; thence S. 15 E. 100 poles to a stake on the county line; thence with the county line to said Main's old line; thence with same to the beginning. (2) 10-acre tract. Beginning at a stake, hickory and chestnut oak, a corner of a one hundred acre survey made in the name of Lewis Sears, and a corner of a survey made in the name of Mack Lee; thence with said line S. 15 W. 40 poles to a pine on the Knox and Whitley county line; thence with said line N. 65 W. 70 poles to a stake on said Main's line; thence with the same to the beginning."

It is incredible that a surveyor on the ground making the last two surveys could have been ignorant of a survey made by him only about a month before, or that he could have failed to know that the last two boundaries conflicted with the first. The surveys call for natural objects notorious and about which there could be no mistake. Plaintiffs' survey calls for the Knox and Bell county line, the corner of Knox and Whitley county, and the Knox and Whitley county line. It also calls for Mack Lee's line and Lewis Sears' line. The defendant's 10-acre survey calls for a pine on the Knox and Whitley county line, and runs thence with the line to the tract of land then owned by Main. His other survey calls for the county line, and to run thence with the county line to his line. All the surveys call for the Lewis Sears survey and the Mack Lee survey. The conflict between plaintiffs' survey and the defendant's survey is so great that, with these natural objects before him, a surveyor, on the ground, could not reasonably be ignorant of the conflict; at least he should be charged with notice of it, in view of the natural objects called for. The same is true of Bryant and Golden, for they lived in the vicinity, and hold another patent near by. While the county line is called for in the survey as being "on the top of the ridge," it is spoken of by the witnesses as on top of the mountain, and a natural object as this must have been patent to parties on the ground. All of the surveys call for the land lying between the Lewis Sears 100-acre survey and the county line.

Judgment affirmed.

Ky.App. 1903.
BRYANT et al. v. MAIN.
77 S.W. 680, 25 Ky.L.Rptr. 1242


     

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