
    Mildren & Keating, et al. v. Henderson’s Administrator.
    (Decided November 27, 1925.)
    Appeal from Estill Circuit Court.
    Appeal and Error — Boundaries—Evidence Held to Show Correct-Line to be One Claimed by Defendant, and Finding of Jury to Contrary Against the Evidence. — Evidence held to show that correct boundary line between land of parties was one claimed by defendant, and finding of jury to the contrary set aside as flagrantly against the evidence.
    MARTIN T. KELLY, ROBERT R. FRIEND and RIDDELL & SHU-MATE for appellants.
    GRANT E. LILLY for appellees.
   Opinion.of the Court by

Turner, Commissioner

Reversing.

Plaintiff, as administrator of W. W. Henderson, deceased, filed his ordinary action against Abner Q. Wilson- and Mildren and Keating, his lessees, alleging that in his lifetime W. W. Henderson was the -owner and in possession of a described tract of land, and that defendants had unlawfully and wrongfully entered thereon during the lifetime of Henderson, and had wrongfully drilled several oil wells thereon and had extracted therefrom oil of the value of $ — , no part of which has ever been paid ■either to decedent or his personal representative. The prayer was for judgment against defendants for $ — , presumably for the value of the oil alleged to have been ■extracted.

The answer denied that Henderson was the owner of or in possession of the tract of land described in the petition, or any part thereof in so far as the same covers, includes or overlaps any part of a described tract of land set forth in the answer; and they deny that they or either of them had wrongfully entered upon any part of the land described in the petition, or had wrongfully drilled several or any wells thereon, or had extracted therefrom any oil, except that they did enter upon the land described in the answer and drilled wells thereon, and withdrew oil ■therefrom, and asserted title in themselves to the land so entered and drilled upon.

After a jury trial, and the hearing of much testimony, in addition to the introduction of a number of deeds and patents, as well as several surveys made recently and some made many years in the past, the jury returned a verdict merely finding for the plaintiff. Upon that verdict the court entered a judgment that Henderson was the owner of the four oil wells in contest, and fixing the true location of the boundary line between Henderson and Wilson as claimed by the plaintiff, and .awarding the plaintiff a writ of possession. The cause was then transferred to the equity docket, and referred to the master commissioner to hear evidence and ascertain the value of the oil taken from the wells by the defendants.

It will thus be seen that the only issue in the case was whether the narrow strip of land upon which the oil wells were drilled was the land of Wilson or that of Henderson.

Henderson claimed under a deed from Prather dated July, 1890, and the - description in his deed is the same as that given in the petition in this action. Prather claimed under James Long by deed dated August, 1869, in which deed there is a very general description which recites that it includes all the interest .that Long and his wife had in the lands of Hezekiah Park, deceased, being not only the interest descended to said Long and wife from Hezekiah Park but also the interest of P. M. Park theretofore deeded to said Long. It will thus be seen that Long claimed not only toy descent from Hezekiak Park tout toy deed from Francis M. Park dated April, 1865, said deed reciting that Francis M. Park conveyed ■one-sixth, undivided interest in tke Hezekiak Park land to Long, including the dower interest of Hezekiak Park’s widow. So tkat it will readily toe seen tkat Henderson claimed under tke Hezekiak Park title.

Defendant Wilson claimed under a deed from kis father, William D. Wilson, and William D. Wilson claimed under a commissioner’s deed made to kirn in an action to settle Abner W. Quinn’s estate, and Abner W. Quinn, wko was tke fatker-in-law of William D. Wilson and tke grandfather of appellant, Abner Q. Wilson, claimed under one or more patents from the Commonwealth of Kentucky.

Not only does tke deed under wkick appellees claim call for tke Abner Wilson line, tout tke deed under wkick defendants claim calls for tke Prather or Henderson line, wkick is tke same as tke Hezekiak Park line; so tkat tke problem of the jury was to find what was tke correct line between Abner Q. Wilson and W. W. Henderson, which line was tke same line as was formerly between W. D. Wilson and Prather, and still further back, the same line tkat was between Abner W. Quinn and Hezekiak Park.

Tke only evidence offered toy tke plaintiffs directly bearing upon tke correct original line was tkat of E. P. Benton, a surveyor of muck experience, tout wko was at tke time he testified only a few weeks less than 89 years of age, and it is kis statement as to tke correct line upon wkick tke verdict of tke jury is based. In effect kis statement is tkat a stake in tke edge of tke road running from Red Lick to Park’s Mill is where tke line between tke parties should begin and run therefrom N. 43 W. 98 poles to an intersection with tke lines of tke Abner W. Quinn 600-acre survey. Not only is this line so testified to by Benton inconsistent with the Abner W. Quinn survey, but starting from tke point he indicates it lacks 24 poles of reaching tke Abner W. Quinn line, whereas if begun at tke point claimed by appellants running tke same course and tke distance called for in all tke surveys, patents and deeds (N. 43 W. 74 poles) it does reach tke Abner W. Quinn 600-acre survey line. Not only so, this same E. P. Benton made a survey and plat of tke William D. Wilson tract of land in 1879 or 1880 when he was a comparatively young, vigorous and active man, and not only Ms plat made at the timé shows his present claim of the correct line is erroneous, but his survey and plat disclose that he reached the point now claimed by appellants as the corner between Quinn and .HezeMah Park, and recites “thence with J. W. Prather’s line N. 43 W. 74 poles to the beginning’,” which is the line now claimed by appellants.

Not oMy is Benton’s testimony thus contradicted by his own survey and plat made many years ago, but two other recent surveys and plats filed in this record bear out his original survey and plat, and show the correct line to be as claimed by appellants. If the line as fixed by memory by Benton is the -correct line, the call in his survey for Wilson in 1879, which reads “thence N. 48% E. 50 poles to stake,” would fall exactly 20 poles short, for it is unmistakably shown that from the Spanish oak, the next previous call, it is only 30 poles to the line which he now says is the correct one.

The most convincing thing, however, we find in the record that the line claimed by appellants is the correct one, and that it was recogmzed even as early as 1855 as the correct line between Hezekiah Park and Abner W. Quinn, is that the calls, in the Benton survey of 1879, in so far as they directly affect the location of this line, allowing for the variations, a-re exactly the same as those in the lines of the 600-acre Abner W. Quinn patent of 1855. The last several -calls in that patent are “thence S. 71 E. 106 poles to a maple at 14; thence N. 12 E. 100 poles to a Spamsh oak at 15; thence N. 15 E. 50 poles to a SpaMsh oak at 16; thence N. 47 E. 50 poles to a beech and maple, Asa and Hezekiah Parks’ corner at 17; thence with Hezekiah Parks’ and said Quinn’s line N. 45 W. 200 poles to a beech at 18.”

The maple at 14 referred to in the above lines of the Abner W. Quinn 600-acre patent is recogmzed by all these, surveys and maps, and is thoroughly identified.

Now we propose to show that, allowing for the variations, Benton in his survey from that maple followed the-lines of the Abner W. Quinn .survey, and likewise fixed the correct line between these parties, to-wit: “Thence-S. 69% E. 106 poles to a maple at W; thence N. 13% E. 100 poles to a Spanish oak; thence N. 16% E. 50 poles to-a SpaMsh oak; thence N. 48% E. 50 poles to a stake at Z; thence with J. W. Prather’s line N. 43 W. 74 poles to-the beginning.”

It will be observed tbat tbe course N. 43 W. in tbe last call of Benton’s survey, allowing for the variations, is the same as N. 45 W. in tbe call of tbe 1855 Abner W. Quinn patent. Not only does tbat patent refer to tbat line as tbe line between Quinn and Hezekiab Park, but Benton refers to tbat line as “tbe J. W. Pratber line,” Pratber being tbe successor in title to Hezekiab Park.

Not only does tbat old Abner W. Quinn- patent fix tbat as tbe line between Quinn and Hezekiab Park, but tbat patent discloses on its face tbat Hezekiab Park himself was one of the cbainmen who made tbe survey upon which tbat patent was issued.

Without going into tbe more recent surveys, which verify tbe Quinn patent and tbe subsequent survey of Benton, we deem it necessary only to say further tbat these things are most convincing tbat tbe correct line between these parties is tbe one claimed by appellants, and tbat tbe finding of tbe jury to the- contrary is flagrantly against tbe evidence.

There are other questions raised and discussed on this appeal, but in tbe light of our conclusion on tbe principal question we deem it unnecessary to refer to them; if there should, however, be another trial of this case tbe parties will be permitted to amend their pleadings and take such other steps as may simplify tbe issue.

Tbe judgment is reversed with directions to grant appellants a new trial, and for further proceedings consistent herewith.  