218 F2d 384 Carlson v. C & C Coal Company

218 F.2d 384

Hazel CARLSON and Grace Harber, Appellants,

v.

C. & C. COAL COMPANY, and Asher Coal Mining Company, Appellees.

No. 12119.

United States Court of Appeals, Sixth Circuit.

Dec. 7, 1954.

Claude P. Stephens, Prestonsburg, Ky., Jesse K. Lewis, Lexington, Ky., for appellants.

Cleon K. Calvert and W. R. Lay, Pineville, Ky., for appellees.

Before SIMONS, Chief Judge, and ALLEN and STEWART, Circuit Judges.

PER CURIAM.

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1

This case came on to be heard upon the record and briefs and oral argument of counsel;

2

And it appearing that the appellants filed a complaint praying that they be adjudged the owners and entitled to the immediate possession of certain lands described therein, and that the appellants in a counterclaim prayed that they have judgment awarding them the lands described in the complaint with the exception of a parcel described in the counterclaim;

3

And it appearing that the land described in the complaint lies on both sides of the stream known as Bullins or Trace Branch;

4

And it appearing that the court found that the controversy in the case relates only to the part located on the north side of the stream, usually referred to by the witnesses as the lefthand side, and that all this part lying on the north or left side of the Branch is shown by the evidence without dispute to be embraced in the boundary described in a deed executed and delivered to the appellee, Asher Coal Mining Company, by W. L. Knuckles and wife of date December 27, 1929, which title is traceable by mesne conveyance back to a 150 acre patent granted in the name of Jacob Woolum, which, being junior to both the Say and Morehouse grants, was void under #4704 Kentucky Statutes, but nevertheless affords appellee color of title;

5

And it appearing that the court, for the purposes of the case, assumed that by adverse possession for the statutory period immediately following the judgment of forfeiture of the Say grant to the commonwealth of Kentucky in 1908, the predecessor of the appellants, Mrs. Betty Hoskins, acquired title to the property, but correctly held that such title as she may have so acquired is not immune from divestiture by adverse possession of a subsequent occupant under color of title for the statutory period. Culton v. Simpson, 265 Ky. 343, 351, 96 S.W.2d 856; Maloney v. Bedford, 290 Ky. 647, 649, 162 S.W.2d 198;

6

And it appearing that the District Court found from conflicting evidence that

7

'It is established by preponderance of the evidence that continuously, for more than 15 years next before the filing of this action in 1952, the defendant Asher Coal Mining Company lessor of the defendant C. & C. Coal Company has, by its tenants Jesse Cox and Boyd Cox, adversely held and occupied the land in dispute lying on the North side of Bullins Branch under clear color of title and claim of right and ownership under its deed of 1929 from W. L. Knuckles and wife, as well as by virtue of its asserted paramount legal title;'

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8

And it appearing that the court concluded that by its adverse possession for more than the statutory period next preceding the filing of this action, appellant divested the plaintiffs of any title or right thereto which they may have previously acquired;

9

And it appearing that this finding is not clearly erroneous;

10

It Is Ordered that the judgment of the District Court dismissing the complaint and entering judgments for the appellees upon the counterclaim be and it hereby is affirmed, for the reasons stated in the opinion of the District Court, 115 F.Supp. 666.