
    C-ASE 84. — ACTION BY T. J. ASHER AGAINST CALVIN PACE.
    March 9, 1910.
    Pace v. Asher
    Appeal from Harlan Circuit Court.
    W. T. Davis, Circuit Judge.
    Judgment for plaintiff, defendant appeals. —
    Reversed.
    1. Public Lands — Patents—Conflict.—Where two patents as laid out upon the ground conflict, the earlier patent controls.
    2. Public Lands — 'Location of Patent — Evidence.—Evidence held insufficient to locate the elder of two conflicting patents in accordance with plaintiff’s contention, but to require a finding that it should be located in accordance with defendant’s contention, which would conform it to the general description contained in the patent as situated on certain creeks.
    J. G. & J. S. FORESTER for appellant.
    SAMPSON & SAMPSON for appellee.
   Opinion op the Court by

Judge Settle

— Reversing.

The appellee, T. J. Asher, by his petition in equity filed in the court below, alleged, his ownership by purchase from the Cumberland Yalley Land Company of the poplar, ash, and cucumber timber of certain dimensions standing upon a tract of land particularly described in the petition, charged that the appellant, Calvin Pace, was without right claiming, cutting, and removing the timber in question, and asked an injunction restraining him from further cutting or removing same. The land upon which the timber stood is covered by a patent, purporting to contain 120 acres, issued by the commonwealth of Kentucky, December 30, 1885, to Carr Middleton, who sold and conveyed the land to the Cumberland Yalley Land Company. Appellant by answer- denied appellee’s title to the timber in controversy, and alleged title thereto in himself, and to the land upon which it stands, under a patent embracing a 200-acre grant, issued by the commonwealth November 17, 3844, to Wm. Thomas, who sold and conveyed the land to his son, Joseph Thomas, by whom it was sold and conveyed to appellant more than 40 ye.ars ago. By an amended answer appellant set out a specific boundary embracing that portion of the Thomas 200-acre patent claimed to lap on the Middleton 3 20-acre-patent.

When appellee instituted the action he obtained a temporary restraining order as prayed in the petition, by which appellant was prevented from further cutting or removing the timber; but, after thus tying appellant’s hands, appellee himself continued the work of cutting and removing it until appellant instituted in the same court an action setting up his alleged ownership of the land and timber, and obtained therein a temporary restraining order preventing any further appropriation of the timber by appellee. In the latter action appellee filed an answer, denying appellant’s title and alleging his ownership of the timber as charged in the petition of the action previously brought by him. The actions were consolidated and heard together, and a judgment rendered declaring appellee the owner of the timber and perpetually restraining appellant from interfering with his right to cut and remove same. From that judgment this appeal is prosecuted.

There is no controversy as to the proper location of the Middleton patent; but the location of the Thomas patent is in dispute. It is appellant’s contention that the Thomas patent includes three-fourths of the land embraced in the Middleton patent, and 61 poplar, ash, and cucumber trees claimed by appellee. As the Thomas patent is the elder of the two patents, if its true location is as claimed by appellant, the judgment of the circuit court should .have been in his favor. If, however, its true location is as claimed by appellee, the judgment was correct, and should not be disturbed.

The Thomas patent describes the land embraced therein as follows: “Lying and being in the county of Harlan, on Bill’s and Turner’s creeks, waters [tributaries] of Yocum creek, * * * beginning on a chestnut and two beeches in the edge of a flat; thence S. 26 degrees W., 30 poles, to a poplar; thence S., 46 poles, to a beech and hornbeam; thence S. 13 degrees W., 60 poles, to a beech and maple; thence S. 71 degrees E., 180 poles, to a white oak and black gum; thence N. 36 degrees E., 70 poles, to a beech and white oak; thence N., 200 poles, to a stake; thence S. 70 degrees W., 195 poles, to the beginning.”

We find in the record three maps of the land in controversy, but because of its greater elaborateness of detail we hereby adopt, and make a part of the opinion, the map of Gr. A. Eversole:

[Colors have been disregarded, as numbers clearly indicate boundaries.]

Note: Turner’s and Yocum’s creek are shown in green on map; Bill’s creek shown in blue. The William Thomas 200-acre patent, as located by Calvin Pace, is in red on map and numbered from figure 1, the beginning, to 7, inclusive. The Carr Middleton 100-acre patent is in green on map, and numbered from beginning 8 to IS, inclusive. The said Thomas patent, as located by T. J. Asher, is in blue on map, and numbered from beginning 16 to 22, inclusive.

According to the above map the land covered by the Carr Middleton patent is shown in green, with the boundary in red lines, beginning at figure 8, thence with the figures 9, 10, 11, 12, 13, 1-1, and 15, and back to figure 8 containing by survey 100 acres, instead of 120 acres as stated in the patent. The Wm. Thomas 200-acre patent, as located according to appellant’s contention, is shown on the map in pink, except where it laps on the Middleton patent, which is in green, with boundary indicated by red lines beginning at figure 1 in the Middleton survey, thence with the figures 2, 3, 4, 5, 6, 7, and back to figure 1.

The Wm. Thomas patent, as located according to appellee’s contention, is shown on the map partly in pink, but mainly in green, with boundary indicated by black lines, beginning at figure 16, -thence with the figures 17, 18, 19, 20, 21, 22, and back to figure 16. It is conceded that the timber in controversy is situated above the black line running from 22 to 16 as located on the map by appellee, and within the lap of the Thomas survey on the Middleton survey as the Thomas survey is shown on the map by appellant’s contention. It is appellant’s contention that the beginning corner of the Thomas patent is at figure 1 as indicated on the map, and that tile chestnut and one of the two beeches called for in the patent as the beginning corner are yet standing at the edge of a flat about 30 yards from Bill’s creek and 40 yards from the John King ford, that the stump of the other beech tree could until recent years be seen, and that the chestnut and beech contain marks corresponding in age with the date of the Thomas patent. Appellee contends, however, that the beginning corner of the Thomas patent is at figure 16 on the map, at the edge of a' flat, 30 yards from a house once occupied by David Middleton, and about 100 yards from Bill’s creek, and that a beech, known as a corner tree, formerly standing at that point, was cut down by David Middleton.

Two witnesses, David Middleton and Louisa Howard, the latter a daughter of Wm. Thomas, were introduced by appellee to prove the beginning corner of the Thomas patent to be at figure 16 as shown on the map. Middleton testified that he cut down a beech at the place indicated by figure 16 for firewood, and after he had done so discovered it was a corner tree; that Polly Thomas, widow of Wm. Thomas, who was then at his house, told him the beech he had cut down was a corner of the Thomas land; that there was also a chestnut log lying on the ground near the beech, but he did not examine it to see whether it was marked. Middleton also testified that he saw a maple standing on the bank of Bill’s creek, marked on two sides, and that Clay Thomas, a son of the patentee, Wm. Thomas, told him it was a corner tree of the Thomas patent. Louisa Howard’s testimony was to the effect that she knew the beech cut down by David Middleton to be a corner of the Thomas patent, but was indefinite as to when and by whom she was told it was a corner tree, and finally said it was shown her by one of her parents as a coiner tree the year of the surrender of Lee to Grant, and that she was then five years old. Her testimony in self-contradictory and in the main unsatisfactory. It is not apparent'from the testimony of Middleton or Mrs. Howard that they were told the beech cut down by the former was the beginning corner of the Thomas patent. At most they were only told it was a corner tree of the Thomas patent, but what corner they did. not say. Appellee also introduced Ms agent, Creech, and four surveyors. Creech and two of the surveyors, Bice and Kirby, testified that the marks on the chestnut and beech, claimed by appellant to lie the beginning corner of the Thomas patent, are from 8 to 15 years of age. The other two surveyors, the Johnsons, testified that the marks on the chestnut and beech are from 10 to 20 years old. Appellee offered no proof as to the location or identity of any corner or object called for in the Thomas patent, other than the place he claimed to be its beginning-corner.

The evidence introduced by appellant to establish the beginning corner of the Thomas patent at the chestnut and beech, figure 1 on the map, was more satisfactory than was appellee’s evidence as to the location of the beginning corner. Appellant himself testified that the chestnut and beech were pointed out to him as the beginning corner of the Thomas patent 12 or 15 years ago by Clay Thomas, now deceased, a son of the patentee, and himself an elderly man; that they were then marked as corner trees, and the marks correspond in age 'with the date of the patent; that he also knew the poplar, south of the chestnut and beech, which is the second object called for in the patent in the line running from the chestnut and two beeches, and that it was marked, and the marks were apparently as old as the date of the patent. He also testified that he formerly lived near the fourth corner of the Thomas patent, designated in the patent as a beech and maple, and knew these trees, which were marked as corner trees, which marks were as old in appearance as the date of the patent; that the beech and maple are both gone, but numerous maple sprouts are now growing where they stood; and Creech, appellee’s agent, admitted that, in surveying the line from the chestnut and beech claimed by appellant as the beginning corner of the Thomas patent, the distance of the fourth call gave out at these maple sprouts. John HensJey testified in appellant’s behalf that Clay Thomas, the son of the patentee, Wm. Thomas, in his presence pointed out the chestnut and beech at figure 1, and told him it was the beginning corner of the Thomas patent, and that the chestnut and beech were marked with three hacks which seemed to be old marks. Daniel Pace, 72 years of age, a brother of appellant, testified that Polly Thomas, wife, of Wm. Thomas, informed him that the chestnut and beech at. figure 1 was the beginning corner of the Thomas patent, and that he (witness) knows that the marks now appearing on the chestnut and beech were on them 30 years ago. S. E. Gilbert, another witness, 60 years of age, testified in appellant’s behalf that Wm. Thomas, the patentee, told him 38 or 40 years ago, that the beginning corner of the survey was a chestnut and two beeches near the upper (King) ford of Bill’s creek, on the right in going up the hill; that he afterwards saw the chestnut and beeches where William Thomas said they were, and later Clay Thomas pointed them out to him as the corner; that the trees were marked when he first saw them, and the chestnut and remaining beech yet bear the same marks; that Clay Thomas and James Thomas, his brother, also pointed out to him the poplar tree south of the chestnut and beech as the second corner contended for by appellant, and told him it was the second corner of the patent. G. A. Eversole, whose map appears in the opinion, testified that the marks on the chestnut and beech at figure 3 are old enough to correspond with the date of the patent, bnt that some of these marks had been disfigured by cutting into them with a sharp instrument. In running the line from the chestnut and beech by the calls of the patent, Eversole found that the first call gave out five poles short of the poplar stump claimed by appellant as the second corner, but also found that the fourth call did not give out until it reached the maple sprouts where, according to numerous witnesses, the fourth corner, a beech and maple, formerly stood.

The lines and corners of the Thomas patent as claimed by appellant were also established by the depositions of Ransom Blevins, Carr Eldridge, and Samuel Hensley; Blevins testifying that his father-in-law, Wright Wynn, an old man, more than 20 years ago, showed him the'Chestnut and beech, poplar, beech and hornbeam, and beech and maple, claimed by appellant as corners of the Thomas patent, and told him they constituted the first, second, third, and fourth corners, respectively, of the Thomas patent; that the trees designating these several corners were all then standing and bore marks as such, corresponding in age with the date of the patent. Carr Eldridge identified the chestnut and beech at figure 3. as the beginning corner of the Thomas patent, and in addition testified that his father, Hugh Eldridge, who owned land adjoining the Thomas tract, over 30 years ago got into a controversy with William Thomas, then owner of the land, as to the location of the lines dividing their lands, to settle which they got John Farmer, a surveyor, to run the lines of the Thomas 200-acre patent; that the surveyor began his work at the chestnut and two beeches at figure 1 as the beginning corner of the Thomas patent, near the John King ford, and that this corner was pointed ont by ¥m. Thomas, Hugh Eldridge, Wright Wynn, and Hugh Johnson; and that the chestnut and two beeches were then marked. Samuel Hensley testified that he-knew the chestnut and beech at figure 1 to 'be the beginning corner of the Thomas patent 19 years ago; that they were then marked as now, except that some of the marks have been recently disfigured; that he also then knew the poplar called for in the patent and running from the chestnut and beech, and it was then marked as a corner tree and the marks looked to be old ones; that he was employed by appellee with other hands to cut down the timber on the land in controversy, but refused to cut down the poplar because it was a corner tree; that it was later, and after appellee sued appellant, cut down by Cook and King, servants of appellee, and hauled away by others in his employ.

AYe have failed to find in the record any evidence contradictory of that of appellant’s witnesses as to two -important facts which add great weight to their testimony respecting the location of the Thomas patent, viz., the proximity . of its beginning-corner (i. e., the chestnut and two beeches) to the John King ford on Bill’s creek, and of the fourth corner, the beech and maple, to Fall’s Hollow. To locate the Thomas patent as appellant’s evidence locates it will conform to the general description contained in the patent, which is -that it is situated on Bill’s and Turner’s creeks; but, if located as contended by appellee, it would be equally, if not more, appropriate to describe it as lying on the waters of Yocum creek. We may also add that, though the land lies very near Bill’s creek, the patent does not locate it upon that stream. Its boundary does not call for a single object upon the banks of the creek, or to run with its meanders, nor does its location as fixed by appellant’s proof make it touch the creek; but, if located as attempted by appellee, its boundary would not only run with the creek, but would more than once cross it. This is of itself enough to show that appellee’s contention as to the location of the land embraced in the Thomas patent is incorrect. It is apparent that the judgment of the circuit court in determining the lines of the Thomas survey ignored the calls for natural objects, though they were well established by the evidence.

In our opinion the judgment is manifestly against the weight of the evidence, for which reason it is reversed, and cause remanded, with direction to the circuit court to enter a judgment dismissing appellee’s petition and injunction, declaring appellant owner of the land and timber in controversy, and restraining appellee from further cutting or removing the timber.  