| 16 Ky.L.Rptr. 575 |
|---|
| Court of Appeals of Kentucky. |
| GILLUM v. CATRON. |
| Jan. 29, 1895. |
| ACTION: Reversed. |
Appeal from court of common pleas, Knox county. "Not to be officially reported." Action by Isaac Catron against C. Beets. C. C. Gillum was subsequently made a defendant. From a judgment against him in favor of plaintiff, defendant Gillum appeals. GUFFY, J. This action was brought by Isaac C. Catron in the Knox court of common pleas against C. Beets, to recover for timber alleged to have been cut and converted by Beets to his own use on a 100-acre tract of land claimed by plaintiff. C. C. Gillum, by *303 proper proceedings, was made a party defendant, he having sold the timber to Beets as his, and as being on his land. By agreement the case was transferred to equity, and judgment was finally rendered against Gillum for $122.06, with interest and costs. From that judgment Gillum has appealed to this court. Appellant asks a reversal upon several grounds. He claims that the judgment is too large, even if any judgment should have been rendered; insists that part of the timber which he has been required to pay for was really on the lands of one Gresher, and that the proof in the cause showed that one Sprale was part owner of the land claimed and described by plaintiff in his petition, and being the same upon which the timber sued for was cut. But these questions need not be decided. The principal question in the case is as to whether plaintiff had title to the land from which the timber sued for was taken. It appears the appellant was the owner of 150 acres of land, and had resided on it for 20 years, and that there was a considerable amount of vacant land in that vicinity, some of which adjoined his land. Some years ago he decided to enter, or appropriate and take up, 100 acres thereof, and accordingly procured a warrant, and had one Dean, said to be a deputy surveyor, survey same; but it appears that Dean only made an actual survey, by actual running or marking lines or corners, of a part of the tract. The proof clearly shows that appellant intended to procure the land adjoining his home place, known as the McCartney tract or patent. The deputy surveyor intended to survey and to return a plat, etc., for the 100 acres so as to include the 100 acres of vacant land adjoining the McCartney 158 acres. The patent issued to appellant calls to adjoin the land that appellant lives on, but the calls of the patent will not include any of said land, but leave a strip of land between appellant's residence and the land actually included by the corners and distances given in patent, and upon this strip of land some of the timber was cut, sued for. It seems that appellant had been claiming and believing that he owned said strip. The date of appellant's patent is 1883, the date of survey being September, 1881. A few years after this the plaintiff surveyed and obtained patent for, as he says, 100 acres, but embracing a large amount of land, in what is sometimes called a "blanket patent"; his purpose evidently being to obtain title to all the different parcels of vacant land within the boundary, whether connected or not. It is not necessary how to decide whether such patents are valid or not. It is pretty evident that appellee had notice of appellant's claim and possession of the land in dispute before his entry and survey. Taking all the proof into consideration, we are of opinion that appellant is entitled to 100 acres of such land as was vacant at the time of the issuance of his patent, to be laid off adjoining his home place, known as the "McCartney 150 Acres"; and, the plaintiff having failed to show perfect title to any of the land from which the timber in controversy was taken, he was not entitled to recover any judgment in this action. The judgment of the lower court is reversed, and cause is remanded, with directions to dismiss the petition of plaintiff. Ky.App. 1895. GILLUM v. CATRON. 29 S.W. 302, 16 Ky.L.Rptr. 575 |
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