Creech v. Johnson

•Opinion of the court bt JUDGE HOBSON Affirming. Appellees, on August 21, 1902, obtained from the Commonwealth a patent to fifty acres of land in Bell county. The patent was issued on a survey bearing date of November 6, 1901. They filed this suit against appellants, charging that they had entered upon the land so patented, and cut from it timber of the value of $798.04. They prayed judgment for the specific recovery of the timber and $400 in damages. The defendants pleaded that the patent referred to was void for the reason that none, of the land covered by it was vacant or unappropriated at the time of the survey, but that all of it was embraced in a patent for 86,000 acres issued to Ledford, Skidmore & Smith on September 25, 1845, and also- by a patent granted to Boyd Dickinson many years ago. The proof on the trial showed that only about seventeen acres of land was vacant when the patent was issued if the patent for 86,000 acres to Ledford, Skidmore & Smith was left out of view, and that the defendants had cut on this seventeen acres timber of the value of $256. The court held, under the evidence, that this seventeen acres was not included in the patent to Ledford, Skidmore & Smith, and was vacant when appellees’ patent issued. He therefore gave judgment against appellants for ■the value of the timber cut, and they have appealed. ' The patent to appellees was void if the land was not vacant. There was no attempt to show that the land was covered by any other patent than that of Ledford, Skidmore & Smith, and whether it was included in that patent is the only question to be determined on the appeal. The calls — 446 — of the patent are as follows: “Beginning at Crank’s creek, on two beeches and two sugar trees, beginning corner to-said Smith’s fifteen hundred acre survey; thence S., 70 W., 664 poles, to three beeches, beginning corner to Smith’s six hundred acre survey; thence S., 28 W., 400.poles, to a stake on top of the Cumberland Mountains; thence S., 60 W., 8,320 poles, to a stake near Cumberland Gap; thence N., 15 E., 3,200 poles, to a stake; thence N., 55 E., 8,820. poles to a stake; thence S., 5 W., 3,150 poles, to the beginning, with its appurtenances.” The beginning comer of the patent on two beeches and two sugar trees on Crank’s creek, corner to Smith’s 1,500-acre survey, is established and undisputed. So is th'e second corner, at three beeches, corner to Smith’s 600-acre survey; and there is no difficulty as to the stake on the top of the Cumberland Mountains, S., 28 W., 400 poles, from the second corner, although the distances as run on the ground are longer than those called for in the patent, and in running from the first to the second corner there is some variation in the course called for to reach the corner. But the corners, being established, must control the course and distance. The trouble comes with the next call of the patent, “S., 60 W., 8,320 poles, to a stake near Cumberland Gap.” If this line is .run on the-course called for, it strikes out through the States of Virginia- and Tennessee and corners in Tennessee three' and. three-fourths miles south of Cumberland Gap. -The State of Kentucky, it can not be presumed, undertook to patent land in Virginia and Tennessee. So, it appears from an exhibit filed in the record the United States Circuit Court held in two cases before it that the course of the patent should be disregarded, and the corner set in Cumberland Gap, the line running with the State line, and following the meanders of the top of the mountain to a stake in the — 447 — center of Cumberland Gap. If this point be taken as the corner, and the next line is run N., 15 E., 3,200 poles, to a stake, in order to make the patent close, the next line, which calls for 8,820 poles, has to be increased to 9,878 poles, and the sixth line has to be increased from 3,150 poles to 4,990 poles. If the'patent is thus run out, it contains in Kentucky- 182,184 acres, and will include the land in controversy. But if, instead of thus extending the lines1 as indicated, we begin at the beginning corner, and reverse the calls of the patent, stopping when we get to the State line, and then following the State line to the third corner, the patent will contain in Kentucky 93,552 acres, and will not include the land in controversy. The situation is roughly shown on the following map, on which the lines 1, 2, 3, '7, 8, 9, 10, 6, 1, indicate the location of the patent on/the supposition that the fourth corner is in the center of the Cumberland Gap, and the lines 1, 6, 5, 7, 3, 2, 1, the location of the patent if its calls are reversed from the beginning corner, and the patent is closed by following the State line from the point where it is reached at 7 to the established -corner at 3: The point 7 is about five miles from Cumberland Gap. None of the lines in question have any marks on them. The circuit court accordingly adjudged in favor^of the location — 448 — of the patent by reversing its calls front the beginning corner, thus fixing its location as shown by the lines 1, 6, 5, 7, 3, 2, 1, on the map. The defendants appeal. The only question we deem it necessary .to consider is. whether this is the correct location of the patent, or whether the fourth corner should have-been located in Cumberland Gap, and the other lines run out from that corner as indicated by the lines 8, 9, 10, 1, on the map. In Asher v. Howard, 24 R., 2118, 70 S. W., 277, 72 S. W., 1105, this court declined to determine the proper location of the patent in question because the record was not sufficiently prepared to furnish the court the necessary data. The record before us has been prepared with a view to present the-question. In Thornberry v. Churchill, 20 Ky., 29, 16 Am. Dec., 125, th'e court said: “The order in which the .surveyor gave the lines and corners in the certificate of survey is of no importance to find the position of the survey. By reversing the courses is as lawful and persuasive as by following the order in the certificate of survey. The cases, adjudged upon that point are conformable to reason- and practical utility in guarding against mistakes and destruction of corners by fraud, accident and the elements.” Again, in Pearson v. Baker, 31 Ky., 321, the court said: “The beginning corner in the plot or certificate of survey is of no higher dignity or importance than any other corner of the survey. The order in which the surveyor gives the lines and corners in his certificate of survey is of no importance-to find the true position of the survey. Reversing the-courses is as lawful and persuasive as following the order of the certificate. That construction is to prevail which is most against the party claiming under an uncertain survey. It is his duty to show and establish his corners.” In issuing patents the Government acts as trustee for the — 449 — people. The survey is made by the patentee, and the patent is issued on his application. The grant is therefore strictly construed against the grantee where its terms are uncertain or doubtful, 4 Am. & Eng. Ency. of Law, 801. “The calls may be reversed when, by so doing, the quantity of land embraced will more nearly harmonize with that called for in the grant; but the courses and distances, as given in the survey, should be followed when reversing the calls would not have that effect.” 4 Am. & Eng. Ency. of Law, 789. “Quantity aids in ascertaining the premises granted when they are not described by known and established boundaries.” Id., 790, It will be observed that the two first -corners of the tract .are corners of Smith’s survey, and that all the other corners of the patent are located at stakes. The fact that no timber is called for at any of these corners, and that the distances from the first corner to the second and from the second to the third, when run on the ground, exceed those given in the patent, would seem to indicate that this patent was, perhaps, laid out by protraction, and that the surveyor did not in- fact run , the lines. But whether this is true or not, there is not enough in the patent to fix the fourth corner in the center of Cumberland Gap. The call of the patent is for a stake near Cumberland Gap. The language would indicate that the stake was not in Cumberland Gap, but near it, for that is a point so well known that it i-s reasonable the surveyor would have called for a stake in Cumberland Gap if that was in fact the location of the corner. If the corner is located here, it not only makes the patent contain more than 182,000 acres, instead of 86,000 as called for, but it takes in the town of Harlan, with the county courthouse and other public grounds. The word “near” is too indefinite to justify a construction. — 450 — of the patent to sustain such a result under the rules above referred to. On the other hand, if we.reverse the calls of the patent, 'it includes about 93,000 acres of land, which is more than the quantity called for, and the fourth corner is located on Cumberland Mountain near Cumberland Gap. Considering the length of the lines of the patent and the notoriety of Cumberland Gap, we are of opinion that the location of the corner within -five miles of Cumberland Gap might reasonably be spoken of in the survey as “near Cumberland Gap.” It can not be presumed that a grant of •86,000 acres was intended as a grant of 182,000 acres. Nor can it be presumed that the fifth aand sixth lines of the patent were intended to be extended so far beyond the patent calls as would be necessary to close the survey on the supposition that the fourth corner is in Cumberland Gap. The patent calls for the land in Hárlan county, Ky. It can not be presumed that it was intended to embrace land- in Tennessee or Virginia, or to embrace the county seat of the county where the survey was recorded, or the town about it. In the absence of marked lines or corners or other evidences establishing the proper location of the grant, the circuit court, construing the grant against the grantee where the descriptions are uncertain, properly adopted that location of the patent which gave about the quantity called for, and preserved the courses and distances of the patent calls for the fifth and sixth lines of the survey by reversing the lines from the beginning corner. Harry v. Graham, 27 Am. Dec., 226. Judgment affirmed.