York v. Hogg

Opinion op the Court by

Judge 0 ’Rear

Reversing.

This is au action of trespass, and to enjoin trespass. It was brought in equity under the latter feature of the case. The case turns on the true location of the dividing line between the lands of appellant and the boundary owned by appellee. Both claim under a common grantor, who conveyed the two parcels (formerly constituting one body of land) by two separate deeds executed on the same day. The grantor was conveying the entire boundary in severalty to two of Ms children, dividing the tract between them. The land lays on Otter Creek, a tributary of the Middle Fork of Kentucky river. Forming the watershed of Otter Creek are two ridges, practically parallel with Otter Creek, the ridges coming together at the head of the tributaries of that stream. Near the junction of 1wo of its tributaries, one called Cow Creek, the other Linden Creek, is a cliff formation in a spur of the mountain ridge, in which is a cavern known as the Dark Eock House. Appellee claims under the deed from Jeremiah Smith to Preston Smith, which thus describes the land conveyed: “Beginning at the crooked rock in a small hollow above the fish trapthence up the river to Otter Creek; thence up said river to upper corner tree on the bank of said river; thence with said Smith’s lines around the ridge opposite the Dark Eock House; thence crossing the said Otter Creek; thence by the Dark Eock House square up to the top of the ridge; thence with the ridge down opposite the crooked rock; thence to the beginning. ’ ’

The other deed, under which appellants claim, thus describes the land conveyed by it: “Beginning at the Dark Eock House; thence up the left hand side to the ridge to said Smith’s line; the outside line up to the left hand fork; thence up to the fork ridge to the top of the fork ridge, and around to the head of the right hand fork, in all the lands that said Smith holds in that boundary of land down around the ridge opposite to the Dark Eock House; thence to the beginning.”

We construe the calls to read as if the reader were in person going around the boundaries from the beginning, so as to learn what was the intention of the grantor in using the descriptive language that he used. So that when in going along the first named ridge a point is reached where the Dark Eock House is at an angle of ninety degrees, that is the point designated as being opposite the Dark Eock House. The line next called for is a straight line (nothing to the contrary appearing) so as io cross Otter Creek, pass by the Dark Eock House, and on up the side of the next parallel ridge to its top, the grantor meaning by “square up the ridge to the top” to run the line in a direct straight course until the top of the ridge was reached. Then the line is turned back toward the beginning point on the river, following the top of the ridge.

Appellee contends, and the circuit court held, that ihe running of the line in controversy was to follow the first named ridge until a spur ridge was reached which ran toward the Dark Rock House, being the shed between Linden Branch and main Otter Creek; thence cornering on the Dark Rock House; thence running on a deflected course to the spur coming in at that point from the opposite ridge, then following that spur in its meanders until the main ridge turning toward the river was reached. The line thus made would be irregular, crooked, and disappoint three or more of the objects or courses called for in the deeds. It would not leave the first ridge at the point “opposite the Dark Rock House;” it would not correspond with the callin the second deed “thence up the left hand side of the ridge to Smith’s line;” nor would it leave the opposite ridge on a straight line from a point “opposite the Dark Rock House.”

Evidence was heard as to how the respective grantees construed the description of the dividing line. T.t is not definite nor very satisfactory in details; it sheds little or uo light on the true location, which we have made from descriptions contained in appellee’s evidence and confirmed by reference to a plat of the land furnished by him on the hearing. While the descriptions are awkwardly expressed, they are clear enough in their meaning not io require the aid of parol evidence to explain further than to identify the points called for as corners, and a description of that body of land, with its water courses and its wa.ter-sheds.

The judgment should have been for the defendants. Reversed and remanded with instructions to enter a judgment in conformity herewith.