pared to say that the chancellor erred in [6. Boundaries 35(1) Contemporaneous

construction of interested parties, reputation and information among those knowing actual location as made by surveyor, held admissible.

To establish the true location of a patent when made, the contemporaneous construction of interested parties and proof of reputation and information in the vicinity and among those having knowledge of the actual location

KENTUCKY UNION CO. v. SHEPHERD as made by the surveyor are admissible.

(234 S. W.)

tract through its codefendant, Shepherd, as its tenant. Complaining of that judgment, plaintiff prosecutes this appeal.

east and the butt of the stock altered by making its west line parallel with the gun barrel and the gun itself resting upon an The determination of the whole case rests acute angle. The figure adopted by the court upon the true location of patent No. 24,130, is somewhat the same shape, but to make issued by the commonwealth to Jonathan it conform to the surveyor's plat the court Smith in 1845 as assignee of Elijah Combs, in its judgment turned it to the left (west) who had previously procured land warrant 90 degrees, and made some changes in the No. 360, and the survey and patent to Smith courses of some of the lines. included a part of the land covered by that The location of the patent according to the warrant. The patent issued to Smith calls courses and distances contained in its calls, for 100 acres, while the survey made in his as well as those in the survey, makes a figbehalf, as assignee of Combs, calls for 150 ure corresponding in shape to an ordinary acres; but in both the patent and the sur- stew pot, with the handle attached to the top vey the calls and distances are the same, of the lid and running to the left (west) at and in neither of them are there any naturalan angle of a little less than 45 degrees. We objects called for, except at the beginning have adopted these homely illustrations in corner, which is "a white oak and chestnut lieu of inserting figures of the three plats, oak in the dividing ridge between the Line because we think our illustrations can be fork and Leatherwood creek near the chest- equally as well understood, and we save nut flat which is the waters of the North space, expense, and time in doing so. fork of the Kentucky river." From the beginning corner the calls, in the survey, are: "Thence (1) N. 50 E. 80 po. to a stake. (2) N. 120 po. to a stake, (3) N. 72 W. 60 po. to a stake, (4) N. 66 W. 100 po. to a stake, (5) N. 20 W. 54 po. to a stake, (6) N. 80 W. 250 po. to a stake. (7) S. 67 W. 60 po. to a stake, (8) S. 76 E. 286 po. to a stake, (9) S. 52 W. 203 po. to a stake, (10) S. 116 po. to a stake, (11) E. 90 po. to the beginning."

The court seems to have proceeded upon the theory, not only that the plat of the surveyor when there was a conflict between it and the calls in the patent, was infallible, but that it was its duty under the adjudications of this court, and the rules governing the location of patents, to make the boundaries of the patent conform to the shape of the surveyor's plat; though to do so would necessitate the reversing of calls and the inclusion of land within the located patent, though miles away from that included in the surveyor's plat. To do this it was not only necessary for the court to adjudge that the surveyor made a mistake in some of his calls, but, further, that he in making the plat was also mistaken in the cardinal points, and should have placed his meridian line at exactly right angles to the way it is found on the plat, so as to make its top point east on the plat instead of north. However, with the respective plats before us it can be easily seen that when the meridian line is thus changed the surveyor's plat, and the one adopted by the court, would each include some of the same land, while other land would be included in each of them, not found in the other one.

The courses and distances in the patent are the same as those shown in the survey, except in the patent the distances of the ninth call is 213 poles, instead of 203 poles as stated in the survey. The court found that there was an error in both the survey and the patent, and that to locate the patent so as to make its boundaries and contour conform to the figure of the plat filed by the surveyor in the land office, the first and the ninth calls should each be reversed, so that the one would read "N. 50 W. 80 poles" instead of "N. 50 E. 80 poles" (as stated in the survey and patent), and that the other one read "S. 52 E. 213 poles" instead of "S. 52 W. 213 poles." By thus reversing those two calls the court adopted a figure, or plat, shaped somewhat like the one made by the surveyor in his certificate, issued to obtain the patent, and which was filed in the land office at Frankfort. But the court's location of the patent made it include entirely different ground from that covered by the surveyor's plat; there being not an inch of ground covered by the same plats, and they had nothing in common with each other ex-ly, if not entirely, analogous to the rules for cept the same beginning point. In fact the land included in the surveyor's plat lies east of that included in the plat adopted by the court in its judgment, a distance of from a quarter of a mile (after the first call), to at least two miles at the end of the seventh call. The plat made by the surveyor, as a part of his certificate, very much resembles in shape an ordinary shotgun standing upright with the harmer and the sights to the

[1-3] The supreme task of the court in locating a patent is to ascertain the intention of the parties at the time of making the survey, and to adopt the location which the parties intended to make upon the ground at the time. For the performance of this task numerous rules have been adopted large

the construction of other contracts and writings. None of them is inexorable, nor should any of them be given indubitable weight. Everything else being equal, courses and distances surrender to natural objects, and when there are no natural objects called for, considerable weight should be given to courses and distances, but in running a line along a given course to a designated point that point should be reached at the expense of

"Controlling weight has often been given to the plat by this court (where, however, no doubt 'something else appeared' than merely the discrepancy between the survey and plat), upon the theory doubtless that the surveyor might have unconsciously made an error in transcribing his field notes of the courses, which he could not have easily carried into his figure on the plat to the one he had laid out plat without noticing the dissimilarity of the on the ground and had in mind. Mercer v. Bate, 4 J. J. Marsh, 340; Hogg v. Lusk, 120 Ky. 419, 86 S. W. 1120, 27 Ky. Law Rep. 840; New Era Land Co. v. Childs, 161 Ky. 588, 171 S. W. 417; Hardaway v. Webb, 172 Ky. 589, 190 S. W. 1071; and many other cases."

the given distance. Under the same circum- [ circumstances under which the plat might stances, if there is uncertainty and ambig- be resorted to and the weight to be given it, uity in the description contained in the pat- we said: ent, making the construction from the papers in the case only, and excluding extraneous facts and circumstances, the plat is both admissible and potent evidence, and is given considerable weight. If, however, the extraneous facts and circumstances are such as to conclusively show that there was a mistake or an error made in the plat of the surveyor, it will be disregarded and the patent will be located according to the evident intention of the parties at the time the survey was made, as gathered from all the evidence in the case; for it must not be forgotten that the same surveyor who made the survey and entered the courses and distances therein from his field notes was the same person who made the plat, and the possibility of a mistake on his part is almost as probable in the one case as in the other. He was as much apt to commit error in drawing an ocular demonstration of his description in the survey (which is the plat), as he was to commit an error in writing out that description from his field notes. As instances of the weight to be given the surveyor's plat in an effort to locate a patent, we refer to the cases of Hardaway v. Webb, 172 Ky. 589, 190 S. W. 1071, Louisville Property Co. v. Rose, 184 Ky. 221, 211 S. W. 743, and the numerous cases referred to therein. The opinion in the Webb Case says:

"The admissibility as evidence of the original survey or plat constituting the basis of a patent has long been recognized in this jurisdiction as competent, with other evidence on the subject, to explain a mistake or ambiguity in the description given by the patent of the land granted, or to supply the omission by such description of a course, distance, or object necessary to correctly determine and fix its boundary."

Numerous other cases are cited in that opinion in substantiation of the rule that, where the patent on its face shows evident errors, as, for instance, the omission of a call, or that its courses in the calls will not close, or where a natural object called for becomes lost, or other similar errors, and which have not been cured or affected by the actions of the parties themselves:

"The original plat of the survey may be always used in evidence to show the position of the land, and is evidence of the most potent kind in determining the original location of the lines and corners."

The Louisville Property Company Case was also one where the plat was resorted to, with controlling influence, in an effort to locate the patent where "something else appeared" to establish the mistake "except a discrepancy between the figure made by platting the patent calls and the surveyor's plat," and in that opinion, in stating the

In that case it appeared that the original survey was actually located upon the ground up to its tenth corner, but the last two lines were not so located. Since the time of the survey in that case until the litigation the natural objects (trees), called for in the patent had been removed, and all evidence of their location was lost. There was no evi dence in the record as to the location of the tenth corner, and it was said: “So we must look to a survey of the patent for the location of this tenth corner," and in an effort to locate it it was further said that:

"In the case at bar the lines and corners up to the tenth corner were actually located on the land by the surveyor, and whenever this has been done and a controversy arises, as here, as to the true location of one or more of such lines, the effort is to relocate his location, and to do this resort is had first to natural objects described by him, and, in the absence of such interested parties, reputation, and information objects, to contemporaneous construction of in the vicinity, and among those having knowledge as to the actual location as made by the surveyor; and whenever, upon such extranemade, it appears that there is an error in the ous evidence as to the true location as originally patent, the plat or certificate of survey, the documentary evidences of what he did, and, being of equal dignity, since both are certificates made by the surveyor at the time of his location, may be looked to, and that description accepted, whether in the survey or plat, that under all the proof is believed to accord with the location as originally made, if either accords with the original location on the land as proven, but the original location if established must be accepted even though at variance with the called for courses and distances in all of these documents."

[4] Clearly, that case and the others hereinbefore referred to went no further than to hold that the plat made by the surveyor who made the certificate for the patent was not to be resorted to except where there was an evident mistake in the calls of the patent, or where "something else appeared" to show that the calls of the patent were from some cause insufficient to locate the boundary, and

(234 S. W.)

It

V.

that in cases calling for a resort to the plat [it different calls from those certified to him. it should not be accepted as conclusive, but The theory of there being a mistake is rested only as "potent evidence." There are no upon the fact that the surveyor's certificate, mistakes appearing in the face of the patent which had a plat of the land attached to it, as here involved and the only "something else required by law, shows a different figure from that made by platting the calls as they apappearing" in the case is the necessity of pear in the patent. Appellants cite and rely lengthening the last call from "E. 90 poles upon certain opinions of this court to the efto the beginning" to "E. 290 poles to the be fect that the surveyor's certificate and plat may ginning," which makes the quantity of land be looked to to correct an error in the patent contained in the plat, as thus made, 500 calls. Alexander v. Lively, 21 Ky. Law Rep. acres instead of 150 acres. That it is com- 159; Spradling v. Patrick, 19 Rep. 1038; Bell petent to so extend a line in order to close County, etc., v. Hendrickson, 24 Rep. 371; Bruce v. Taylor, 25 Rep. 163; Mercer the survey, especially when it calls to run to a natural object, which in this case is Bates, 27 Rep. 843; Morgan v. Lewis, 29 Rep. 200. But it must first appear that the misthe beginning corner tree, is too familiar to take is in the patent as issued. If nothing else require the citation of supporting cases. appears in a 'call' patent-this is, one whose is likewise true that mere quantity or acre- corners are all stakes, or all but one or whose age of the land called for (being ordinarily lines were not run out and marked at the time, a matter of description) is of little eviden- except a discrepancy between the figure made tial value in determining the true location by platting the patent calls and the surveyor's of a disputed boundary, and is given the least plat, it is not proof of a mistake in the patweight in such investigations, unless a clear ent. It is as apt to be a mistake in the surintention is shown from the muniments of that the calls in the patent and those in the veyor's plat. It is not suggested in this case title themselves that the acreage, as therein surveyor's certificate are different. expressed, is to control the boundaries given. veyor's plat is of equal dignity with his other Steele v. Williams, 15 S. W. 49, 12 Ky. Law certified work, but not superior. The correct Rep. 770; Kendrick v. Burchett, 89 S. W. 239, running of the patent in such state of case 28 Ky. Law Rep. 342; Alexander v. Hill, as we have here is to follow its calls, courses, 108 S. W. 255, 32 Ky. Law Rep. 1147; Rock and distances, and closing the last line so as Creek Property Co. v. Hill, 162 Ky. 324, 172 to make complete boundary. In this view of S. W. 671; May v. Wolfe Valley Coal Co., land (the Ezekiel Hall 2,500 acres) is the the case, the eastern boundary of appellant's 167 Ky. 525, 180 S. W. 781, and 9 Corpus one adopted by the court under the plea of Juris, 227, 228. limitation as having been fixed by the adverse possession of the appellees.

The

In

[5] The facts in this case coincide with those found in the case of Hall v. Pratt, 142 Ky. 561, 134 S. W. 900, with the exception of the two circumstances mentioned, and we are convinced that the principles announced in that case should govern this one. patent there involved was what is known as a "call patent"; i. e., the corners were all, except the beginning one, stake corners. such cases it is generally presumed that the land was not actually run out by the surveyor, but that he platted it by protraction. The only difference between the patent involved in that case and the one here is that according to the proof in this case there was an actual survey made of the Smith patent to its fifth corner. In that case, as here, the lines called for in the patent closed by running the last line to the beginning corner. The figure made, according to the calls of the patent, was an entirely different shaped one in that case from that made by the surveyor in his certificate, as is true in this case, but the court did not allow that fact to prevail over the calls of the patent, and in doing

so said:

"The patent calls seem to inclose a body of land, and on the face of the patent there is nothing to indicate a mistake in it. Nor is there anything in the evidence to show that there was a mistake made by the surveyor in transcribing the notes of his work and certify ing them to the land office, or that the register made a mistake in issuing the patent, giving in

The sur

"Further evidencing the correctness of this conclusion in the instant case is the fact that appellants and the adjacent owners for many years, for 20 or more, have treated that as the true line of that boundary."

A sustaining case is that of Ross Wetzell & Co. v. Mountain Oil Co., 141 Ky. 411, 132 S. W. 1040.

[6, 7] It will be observed that the opinions in the above two cases, and in the Louisville Property Company Case, permit proof of contemporaneous construction of interested parties and proof of reputation and information in the vicinity, and among those having knowledge of the actual location as made by the surveyor, as facts evidencing the true location of the patent at the time it was made. Other cases upholding that rule of evidence are Howes v. Wells, 110 S.

W. 245, 33 Ky. Law Rep. 212; Wand v. Corbin, etc., 107 S. W. 753, 32 Ky. Law Rep. 958; Taylow & Crate v. Forester, 148 Ky. 201, 146 S. W. 428, and other cases therein referred to. It is shown in this case that Jonathan Smith not only assisted the surveyor at the time the survey was made around to the fifth corner of the patent, but a short while after he obtained his patent he and a witness, who testified in the case, surveyed it around its exterior boundaries and marked them, and Smith and his vendees claimed to those marked lines from that time after

veyance from Smith to Metcalfe to whom the former sold the land. That deed, however, was proven in this case by testimony as much or more convincing than its execution was proven in the Asher Case, and there can be no doubt but that Smith made the conveyance to Metcalfe from whom there is a continuous title of record to the time plaintiff purchased the land when sold under a decree of the federal District Court for Kentucky in 1882.

It might not be inappropriate to say that the corporate defendant obtained its alleged title to the land claimed by it through a deed executed by its codefendant Shepherd a short while before the filing of this suit, but at the time the latter executed the deed he had no sort of title, possessory or otherwise, and his deed conveyed nothing. Hence the court could do nothing but dismiss the counterclaim, but, inasmuch as that part of the judgment is not before us, we refrain from further comments upon it.

ward, and those lines were continuously re- | the opinion shows. We refer to it, however, garded thereafter as the boundaries of to show plaintiff's title to the land from the Smith's patent. Not only so, but in the commonwealth, since, in this case as in that year 1861 there was a patent issued to Am-one, there was not filed a deed or other conbrose Metcalfe for 30 acres of land just east of the Smith patent, the beginning corner of which was "a poplar and maple on a line of 150-acre survey made in the name of Jonathan Smith." The line of the Jonathan Smith patent, upon which was the beginning corner of the Metcalfe patent, is a line made by a plat according to the calls in the Smith patent, without reversing any of them, and without resorting to the plat made by the surveyor, and by which the court was controlled in its judgment. In 1864 there was a patent issued to Thomas Yearly for 100 acres of land lying west and south of the Jonathan Smith patent as platted according to the calls therein. The second and third lines of the Yearly patent coincide with a part of the ninth line and all of the tenth line of the Smith patent, and clearly shows that the parties had in mind the location of the senior Smith patent when the Yearly patent was surveyed. The competency of the relative location and calls of the surveys and patents to Yearly and Metcalfe, though subsequent to the Smith patent, is upheld by this court in the cases of Whalen v. Nisbet, 95 Ky. 470, 26 S. W. 188, 16 Ky. Law Rep. 52; Thurman v. Leach, 116 S. W. 300, and cases therein referred to. The land now owned by plaintiff is that included in the Yearly patent referred to, and that portion of the Smith patent as located according to the calls therein by extending the last one to the beginning corner, lying west of a ridge between Axhandle Branch and Bark Camp fork of Leatherwood creek and it is that portion of the Smith patent as so located lying west of that ridge that is involved in this suit.

Under the facts and circumstances appearing in the record, and guided by the principles of the opinions hereinbefore referred to, we see no escape from the conclusion that the court erred in dismissing plaintiff's petition. It should have adjudged it the owner of the land described in the petition and granted the injunction prayed for, rendering judgment in favor of plaintiff for the sum of $10, which was the value according to the proof of the timber wrongfully cut and removed from its land through the trespasses complained of.

We feel that we should not close this opinion without referring to the case of Asher, etc., v. Ky. Union Co., 87 S. W. 1087, 27 Ky. Law Rep. 1102, which was one involving plaintiff's title to the same Smith patent, and in which it was held that that patent covered the land now in controversy. The defendants here, however, were not parties to that suit, nor were some of the questions now litigated presented in that action so far as

Wherefore the judgment is reversed, with directions to adjudge plaintiff the owner of the land described in its petition, and to perpetuate the injunction against defendants from trespassing thereon, for judgment for $10 damages against them, and for other proceedings consistent with this opinion.

SPINKS v. ASP et al.

(Court of Appeals of Kentucky. Oct. 18, 1921.)

Landlord and tenant 164 (7)-No recovery for injury occasioned by known defect.

A tenant cannot recover damages for personal injuries received by fall through a defective floor, which defect was well known to the tenant before she rented the premises and was open and obvious to any occupant of the premises, even though landlord promised, but failed, to repair the floor, and such promise induced tenant to move into the premises.

Appeal from Circuit Court, Campbell County.

Action by Dora Asp and her husband against Harry Spinks. Judgment for plaintiffs, and defendant appeals. Reversed.

L. J. Crawford, of Newport, for appellant.
Horace W. Root, of Newport, for appellees.

SAMPSON, J. Appellant, Harry Spinks, owns an apartment building in the city of Newport, and appellee Dora Asp and her