
    Smith, et al. v. Tierney Mining Company, et al.
    (Decided November 25, 1927.)
    Appeal from Pike Circuit Court.
    Public Lands. — In action to quiet title based on patent and survey, evidence held to require and to sustain finding that property involved was included within one of two patents previously issued.
    G. R. BLACKBURN for appellants.
    HARMAN, FRANCIS & HOBSON and J. C. CANTRELL for appellees.
   Opinion of the Court by

Drury, Commissioner

Affirming.

The appellants, Smith and Blackburn, began this action to quiet their title to a small tract of land in Pike county. They were unsuccessful and have appealed. Smith and Blackburn relied upon a patent dated July 16, 1902, and founded on a survey dated July 22, 1901. The defense is that Smith and Blackburn had no title to the property they claim because it had been patented previous to the issue of the patent under which Smith and Blackburn claim. The evidence shows that in September, 1871, there was a patent issued to Corley Smith & Co., and that the land claimed by Smith and Blackburn is embraced within the boundary of the patent to Corley Smith & Co. At the end of the description in the Corley Smith & Co. patent we find this language:

“Including in said boundary 99,400 acres of patented land excluded in the calculation of the plat and boundaries run out.”

It will be noticed that the only exclusion of land in the Corley Smith & Co. patent is an exclusion of land that ha.d then already been patented; If the land claimed by Smith and Blackburn lies within the boundaries of some of the patents that make up this 99,400 acres, then Smith and Blackburn must lose because that 99,400 acres had been patented previous to 1871. If, on the other hand, the land claimed by Smith and Blackburn lies without the boundaries of any of the patents that make up the 99,400 acres, then again Smith and Blackburn must lose, because then it necessarily lies within the 131,000 acres patented to -Corley Smith & Co. Smith and Blackburn must necessarily lose on either horn of the dilemma, and it is not necessary to consider the other questions presented by the record.

The judgment is affirmed.  