19 Ky.L.Rptr. 826
Court of Appeals of Kentucky.
JONES et al. v. GILBERT.
SAME v. SASSER.
Sept. 25, 1897.
ACTION: Affirmed.


Appeal from circuit court, Knox county.
"Not to be officially reported."
Actions by N. J. Gilbert and Nancy Sasser against Stephen Jones and others.
The actions were consolidated. Judgment for plaintiffs, and defendants appeal.

PAYNTER, J.
The appellees, N. J. Gilbert and Nancy Sasser, instituted these actions against Stephen Jones, etc., for trespassing on their respective boundaries of land, and to restrain them from cutting and removing timber therefrom. The actions were consolidated, as a similar question was involved in each case. The appellees claimed to have acquired title to the land by deeds of conveyance from Wallace W. Gilbert, and the appellants claimed the right to cut the timber by authority of William Bodkin. The question involved in the case is the ownership of the land. In 1835, James Hales, Sr., made Wallace W. Gilbert a deed for 750 acres of land, situated on Richland creek, in Knox county, Ky. Gilbert lived on the land thus conveyed from that date until his death, in 1889. Previous to his death he had his boundary surveyed, divided into lots, and made deeds of conveyance to his children for the lots which he had assigned them, respectively. The appellees, N. J. Gilbert and Nancy Sasser, were two of his children, to whom he made the deeds of conveyance for the parcels of land; and title to each is involved in this case. William Bodkin, the father of appellant Lafayette Bodkin, and the grandfather of Stephen Jones, also lived on Richland creek, and claimed a boundary of land. The land which Bodkin claimed and that which Gilbert claimed was situated within the patent bounds of the John Lewis 36,000-acre survey. Bodkin and Gilbert both claimed to have acquired title to their land under purchases from Lewis' vendees, and by possession. The real question involved in this case is as to whether the boundary of land claimed by Wallace W. Gilbert covers the land from which the timber was taken. The deed of James Hales, Sr., to Wallace W. Gilbert purported to convey 750 acres on the waters of Richland creek, and bounded as follows, to wit: "To adjoin Thomas Hales on the creek below the plantation, and to adjoin John Bodkin on the right-hand fork of the creek above the plantation, including the plantation, and to lie on the left-hand fork of the creek, and to be bounded on said left-hand fork by a deed made to said Hales by Spencer Griffin on the 17th day of September, 1803, so far as said boundary in said deed is within the 36,000 acres patented to John Lewis. The above boundary of land was recovered by Henry Banks of said Hales in a certain action of ejectment in the federal court, the judgment obtained by default; and the said Banks sold same to John Kincaid, and the said Kincaid sold same to the said James Hales, Sr." It appears that as early as 1803 one Griffin made a deed to James Hales for a certain tract or parcel of land lying and being in Knox county, Ky., and on the waters of Richland creek, to contain, by estimation, 750 acres, be the same more or less, to include Linam's Lick, and to run down the branch on both sides for quantity. It is contended by counsel for appellants that the tract of land which Hales conveyed to Gilbert embraces the same boundary described in the deed of Griffin to James Hales, and, further, that this boundary would not embrace the land from which the timber was taken. The right of appellants to the land is virtually based on this contention. It must be determined from the deeds whether or not this claim is correct. We are of the opinion that a careful examination of the deeds will show that the appellants' assumption is erroneous. The boundary in the Griffin deed purports to convey a tract containing, by estimation, 750 acres. The deed from Hales purports to convey 750 acres. The Griffin deed purports to include Linam's Lick, and "run down to branch on both sides for quantity." The Wallace deed describes the land conveyed as adjoining those of Thomas Hales on the creek below the plantation, and to adjoin John Bodkin on the right-hand fork of the creek, and to be bounded on the left-hand fork by a deed made to Hales by Griffin "so far as said boundary in said deed is within the 36,000 acres patented by John Lewis." The language used indicates that a portion of the land in the Griffin deed lies outside of the Lewis 36,000-acre tract, while the land conveyed by Hales to Gilbert lies within the 36,000-acre tract. Instead of saying that it is the same boundary of land as described in the deed of Griffin to Hales, it simply says that the boundary conveyed to Gilbert is to be bounded on the left-hand fork by the land described in the deed of Griffin to Hales. It would seem that if Big Lick and Linam's Lick are the same, then the land which Griffin conveyed to Hales was situated on the left-hand fork of Richland creek, while the land embraced in the deed of Hales to Gilbert contains the land situated on both the right and left hand forks of the creek. Some other facts might be mentioned in this connection to sustain our conclusion that the deed of Hales to Gilbert does not purport to convey the boundary of land described in the deed of Griffin to Hales. For more than 50 years Gilbert lived upon, and claimed as his own, the boundary of land described in the deed of Hales to him. He placed his son-in-law, Sasser, in possession of a portion of it within the boundary now claimed by Bodkin in this suit. Sasser cleared up about 40 acres, which he had occupied and cultivated for nearly 40 years before this controversy arose. But a few years before the death of Wallace W. Gilbert a sawmill was placed, with his consent, on his boundary of land, near the line dividing it from the Bodkin land. Most of the timber was cut off of the land, for sawmill purposes, up to the Gilbert line. Bodkin lived near the sawmill, and knew that the timber was being removed from the land. This record shows that he made no objection whatever to it. In 1856 those claiming to have acquired the unsold portion of the Lewis patented boundary made a deed to Thomas Hales for the unsold land on Richland creek. This boundary embraces certain lands that were then in possession of William Bodkin, with a provision in the deed that Hales was to convey it to Bodkin on certain conditions. This deed called for the line to Wallace W. Gilbert. This occurred more than 20 years after Gilbert had taken possession of the land. It seems that Hales did not make the conveyance which his deed required until 1875. In the deed which he made Bodkin he called for the Gilbert line. It will be seen from these several conveyances and the conduct of Bodkin that there was a continuous recognition of the right of Gilbert to the land which he claimed. Instead of Gilbert getting 750 acres, an actual survey discloses that he had less than 700 acres in the boundary which he claimed. He did not get as much land as his deed purported to convey. There is evidence in this record which tends to show that Bodkin expressed a fear on several occasions that in running out Gilbert's boundary his house might be embraced. We think the evidence in this record establishes the fact beyond doubt that Gilbert was the owner of the boundary of land in question.

The counsel for the appellants contend that the reply of the appellees to the answer and counterclaim of William Bodkin did not sufficiently deny the allegations in his pleading that he was the owner and in possession or the land in controversy. The statement in the reply to which they invite the court's attention would sustain their contention did it stand alone. By examination of the remaining portion of that reply, it will be seen that in explicit terms they deny that William Bodkin was the owner or in possession of any part of the boundaries in controversy.

It is also suggested that the court erred in enjoining the parties from trespassing upon the lots of land in controversy; that it did not except a small parcel of cleared land, which Bodkin, or those under whom be claimed, had been in possession of so long as to toll a right of entry by the Gilberts. Upon examination of the judgment, it will be seen that the court twice made the exception it is contended is not in the judgment.

The judgment is affirmed.

Ky.App. 1897.
JONES et al. v. GILBERT. SAME v. SASSER.
42 S.W. 102, 19 Ky.L.Rptr. 826


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