xt70zp3vt865_259 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Martin, Wyatt v. Yellow Poplar Lumbar Company text Martin, Wyatt v. Yellow Poplar Lumbar Company 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_24/Folder_12/4462.pdf 1894-1896 1896 1894-1896 section false xt70zp3vt865_259 xt70zp3vt865 j, I, I, ’7' ‘3 $.99:
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. y

 O O O
-. , Knott Circuit Court.
ihe Yellow Poplar Conpauy. Plaintiff.
Against. Petition Equity.
‘.‘.jratt Martin, MW, am '
W. DE fendahtz .
The Plaintiff, the' Yellow Poplar Lumber Cowpanr, says I
that it is a corporation duly created and existing under the laws
of the State of Illinois, with power to contract and he contracted
with, to acquire and sell property and to sue and to He sued in its V
corporate.name. lhat at the August term A.L. 1894, the Defenda
ant, Wyatt Martin, in an action penfiin: in the Knott Circuit Court .1
_ against the Yellow P0plar Dumber Co., et al., procured and caused
to'he entered the following Judgement, which is in words and figun é
ures as followsz— - ‘
‘ Knott Circuit Court.
Sept., 7th., day, 1894.
, Wyatt Martin. Plaintiff.
Against. Judgement. )
lhe Yellow Poplar Lumber Co. Defendant.
This cause coming on and'heing submitted to the Court
on the pleadings and exhibit On motion of the Plaintiff for Judge-
= ment, and the Court being advised, orders that the award given by 1
Sheruocd Osborne and Caleb Akers to the Plaintift Wyatt Martin 1
against the Defendants, The Yellow POplar Luxher Co., he Spread at :
large on the hecords of this Court, and that it is adjudged by the 7
Court that the Plaintiff, Wyatt Martin recover of the Defendant, I
V lhe Yellow Poplar Lumber Co., on said award and agreement the 2U;
. of One lhousand Dollars, and his coat herein expended for Which

 O O O
he may have Execution to which Judgement of the Court, the Lefsn—
dent ?Aéept, and pray an appeal to the Court of Appeals, which is
A Cop; Attest.
. - R. H. Amburgey, Clerk, C.C. I

A copy of said JudgEment is herewith filed, adopted, and
referred to, and sad? part hereof marked Exhibit "A."

Plaintiff says that said JudgEment was obtained against it
by the fraud and misrepresentation and misconduct of the than
Plaintiff, Wyatt Martin. Plaintiff says that the decision of
the Court is not sustained by sufficieii evidence and is contrary
to law. lhe Plaintiff state: that they have std prior to the
rendition of the said Judgement did have a good and valid defense
to the Cause of action set out in the petition of Plaintiff, Wy—
att Martin, and for answer and defense say that they have no
knowledge or information sufficient upon which to found a belief
as to whether the Plaintiff, Wyatt Martin is the owner, legal tit~
le holder, or seized in fee of the land in Plaintiff’s petition
mentioned; or any part thereof, and therefore denies that he is or
was at the time of the alleged injuries to said land; and denied 1

, that he was in the possession thereof at the time said injuries ;v z
are alleged to have been sustained, or had so been the orner or
lL possession of said land on the First day of June 1892, or for

, two years or other length of time proceeding said date named.

1 Defendants deny that within two years next before June
First 1892, or at any other time they either by themselves or by
Agents unlawfully, illegally, or without right or legal authority

 O ' O . O
Cot, or threw into said stream large quantities or other amount of
timher or Saw—logs.

Defendants deny that Without regard to the assumed rights
of Plaintiff, they built dams known as Splash dams across said
stream, and caught or caused to he caught behind said dams large
ponds or bodies of water; which they turned loose together with
large numbers of saw—logs whereby the velocityJ volume, or force
of the water was increased to such extent as to overflow the lands
alleged to be owned and in possession of Plaintiff; they deny that
they thus caused said stream of water to overflow its hanks, and
to run through the lands claimed hy Plaintiff, or caused the water
to break and wash away the banks, and to destroy Plaintiff’s land
alleged to be owned hy him; or that they amns€d the water to wash ‘
away Plaintiff’s soil the ownership and possession of which is

- claimed by him.

They deny that they caused the water , by the erection of
said Dams to throw out large quantities or other amount of Sawlogs
or drift wood, on said lands, and thus to have injured his lands
or prOperty in the sum of One Thousand ($1000.00) Dollars or in
any other sum or awrnda

Defendants deny that the alleged acts of themselves or A—~
gelrts orxqplaiimmt of iixlllailflxif?’:;3petitdxui, were :Sitlm,r illiigal,
or wrongful, or were co matted with a gross negligent, or reckless
disregard of Plaintiff’s rights; or were co ndtted at all.

‘ Further answering in this behalf the Defendants say,that the
whole stream of Beaver Creek is a public River, and navigable
stream or jUhlic highway by water, in which the pnhlic has a

 O 7 O O '
, (4.)
right to its free use for the purpose of LraLsporLiiU 'v market
the products of the forrest, along said stream and especially hill
logs cut Bron tinber trees growing along its hanks and streams
tributary thereto.
lhat various and sundry persons owned farms and tracts of
timber land: along said stream, both ahove and below the lands in
Plaintiff’s Petition mentioned, from which the Defendants, The _
Yellow Poplar Lunher Company purchased large numhers of standing
Poplar trees with which to Furnish its mill situated on the hink
of the Ohio River shout Five miles from the mouth of the Big San-
dy River. lhat the usual and only method to transport said
mill logs {rem the lands there they grew, and frOm which they were
cut, was down said Beaver Creek to Sandy River, and thence to De—
fendant Co’s mills. That the right of the public to the free
use of said Creek as a puhlie River, was one of the i1fl1a= ";’
which led Defendant Company to purchase the trees growing upon the
lords of said Creek and its trihwtaries.

That among those owning lands situated upon ‘i* Deave
er Creek shove the lands in Plaintiff’s Petition mentioned, one
Richard Hall, and Mess. King, owned lands on either side of the
Creek and frOm whom Defendant Company and their predecessors Mess: .
Prichard and Atkins, had purchased tinher trees. lhey also owned
the lands on either SldE of said Beaver Creek, and from them the

it: '
Defendant C0., through Prichard and Atkins acquired the right by .
grant to erect~ and operate the Dams situated shore said lands.

lhat the Dams so erected and operated were rEasonahly adapt—
ed to the size and character of the stream, and were necessary

 o o o. ‘
for the safe, sure, prmnpt and cheap transportation of the timber
or mill logs to market; and their mills hereinbefore named; and MK
were so remotely situated from the lands in the Petition mention—
ed that, the operation of the same would not injure the lands de—

They further state that during the period of time mentioned I
in Plaintiff’s Petition, there were a large number of ttés in said
Creek produced by natural causes — heavy rains —, that caused the
same to raise to a much greater height than at any time when the
Dam was being Operated; and Defendants are advised, believe, and
charge that whatever injury that was sustained to said land if any I
was sustained, was the act of God, and not of these Defendants or
any One of them, their agents or servants.

In answer to the amended Petition filed in said case, Dec-

, . a} . .
ember the 15th., 1892, Petitiongvsayz— that it was and is untrue
and is denied that they were during the time stated in the orig-

. D inal Petition, and have been since that time using and operating
in Beaver Creek, and its tributaries, above Plaintiff’s lands,Six
or other number of Damd similar to the one described in Plainti??s
Petition except as herednbefore set out. And they deny that they
would cause the water which accumulated in said alleged Six Dams
to be let out of them all at the same time, or cause the water to
flow over Plaintiff’s land, or that they greatly increased the
volUme of water in said Creek, and deny that this together with
great or any number of logs which Petitioners had in said Creek,
causeithe water to flow out of the original or prOper channel of
the said Creek, and over Plaintiff’s lands, or by permitting their
logs to gorge in and fill up the channel of the Creek, and lie

 I O y D
there for a considerable length of time. _ '
Petitioners deny that they permitted this to occur on sev—
eral or other humoer of times. Petitioners dény that the water 0
. of said Creek together with the logs whey had in said Creek were
' thrown out of the channel of the said Creek, and deny that in this
manner or otherwise, the Petitioners have caused the said Creek to
. wash away the soil, of at least ion acres of said Martin’s land or
other quantity thereof, or that the same was rendered entirely
worthless. I They say that they have no knowledge or sufficient in
formation upom which to found a belief as to whether said land was
rich, productive, level land, and hence deny that it was.
- They deny that the same at the time of the alleged injuries
. was worth One Hundred Dollars per acre, and is now worth nothing.
' They deny that said Martin has lost the use of the land en—
tirely for the year 1892, and they deny that he cound not culti— I
vate it and use it For said year for the want of soil, and they
deny that the rental of said land for the year 1892 had the soil
been left on it would have heen worth lwelve Dollars per acre or
other sum or amount. They deny and say that it is untrue that they
diverted the water from the true and prOper channel of said Creek
or that they caused the water to carry many of the logs they had
in said Creek out of the channel and lodge them in said Martin’s
. field. They further aiite that whatever logs that may have gottcn ,
out on to said Martin’s land was thrown there by the natural his h
water in said Creek, and was the act of God, and Petitioners had a .
riVHt to reclaim said timber lLQ to replace them in the channel of
V the Creek, which they may havc done, but Petitioners deny that
they tramocd over said Martin’s field with *Foir men and iCr** or

 ‘ t o o t . o
‘ i 5".)
hauled over his grounds in the winter and Spring seasons of the
year when the siol was soft and wet, or that they in this way ren—
dered his land less productive and harder and more difficult to
cultivate. Petitioners deny that said Wye/5t Martin was or had
been damaged hy Lefendants in said original and amended Petition
in the sum of Fifteen Hundred Dollars, or any other sum or amount
whatever. They deny that said alleged injuries or any of them
were caused by the negligence of the Defendant, their Agents. ser—
vants or employees.
lhe Plaintiff states that after the-commencement of sad
suit in said Court they learned that Hon. 1. Y. Fithatrick and
James Gobel, Attorneys of Record for the then Elaintiff, Wyatt Mar
tin. That prior to the August term, A.h. I894 the Attorneys
for said Wyatt Martin of Record agreed with the Vellow Poplar Lum-
I her Co’s Attorneys that in asmuch as they did not exrect to he in
attendance upon the cominfi session of the Knott Circuit Court
next ensueing that said case of Wyatt Martin against the Yellow
POplar Lumber Co. should he continued generally for that term of
Court which request and proposition for continuance cane from the
Attorneys of said Wyatt Martin. lhat relying upon said agree—
ment the Senior Counsel of the Yellow POplar Lumber Co. who had ‘
investigated the authorities, yreyared the pleadings for the 20., 1
and was familiar with all the facts in the case was prevented from
attending said term of the Khoot Circuit Court, and the Judgement ;
' herein complained of was obtained in Violation of said agreement 2
and in the absence of Plaintiff’s cheif Counsel and they were
thereby prevented from having a fair trial of this case, that the
amount of the recovery and damages is excessive and were given

 . O O O
(8.) ’
against Defeudant under the influence of the prejudice of the
alleged arbitrator and pretended umpire whose award was confirmed
by the Judgemsnt herein conmlained of and the recovery given for
the amount of damages awarded by said arhitrator and umpire. '
. Plaintiff states that‘ the pretended agreement to ar;
nitrate the duestions at issue in the case of Wyatt Martin again
st The Yellow Poplar Luxmer Co. under date the llth. of April,
1892, and the instrument denOminated award of arnitrators under
date the Ist. day of July, 1893, hoth of which are On file in the
case of Martin against The Yellow Poplar Lumhcr Co., were and are
illegal and void.

That under the law, and within tha scope and tenor and
liEI“fll€ «if liis an>loynnsiit, \Vil_lia;i Sluanruan liad Iio ;n1t?uiritci ix) Sini—
mit for arbitration the questions at issue in this case, and his
effort to do so is illegal and void. That the award of the arbié

. trators herein'hsforé referred to has no binding force upon the
Yellow Poplar Lumber Co., and was likewise illegal and void, and
that had Plaintiff’s Senior Counsel been in attendance upOn the is
term of Court at which the Judgement herein complained of was ren
dersd, he was prsparsd with abundant authorities to sustain Plain

1 tiff Co’s contention, as well as to show and sustain the issues
raised by the answer of the Ysllow Poplar Lumber Co.

'That their said Attorney, who is their general Counsel
in all matters arising in the 24th. Judicial District, had agrsed
and promised the management of ths Co. to go to Hindman, KEntucky,
and he in attendance upon that term of Court and he prOmissd to do
:o,and would have done so but for tha subsequent request and s-

 c f o o '
greenent by the Attorneys of Record for said Martin to continue
the case for that term of the Court, that relying upon said agree—
ment the Co’s Attorney hefore mentioned did not attend said term
of said Court, and that towardslmedr the close of said term, the
said wyatt Martin, with knowledge of said agreement, out in vio—
lation of the some, employed another Attorney, and Forced a trial
0? the case, and that rendition of thisJudgement was “Fought
, about by surprise to Plaintiff Co., which ordinary prudence

could not have guarded against.

Pldintiff r”urther says, that the report of the alleged
arbitrators as well as tue amount awarded was procured to he done
and found by the fraud persuasion and at the solicitation of the
Sail Wyatt Martin.

The Plaintiff states that unless said Judgenent he va—
cated, sat sside, and held for naught, great and irreparable inju—
ry will be done it.

Wherefore , Plaintiff prays that the Judgement herein
before set out, be cancelled, set aside, and held For naught, and

I that the award of the arbitrators he adjudged viod and o? no ef—

‘ feet. That this action be consolidated with the action 0? Wyatt
éMAwL 5%2435Q227égbéigfiil 6&5 5bgfibovdzd/ Zégi;maO¢4MM90V0V771QQQKZAéZS;j—”
Martin against the Yellow Poplar Lumber CO. &C., i d that the

' /\
some, the petition of Wyatt Martin against the Yellow Poplar Lupin?
M Mimi»
60,, be dismissed, and that they recover of said Martin all their
- /\

costs herein, and in'that‘benalf Expended. They pray for all gen-

eral and special relief. (;gZLZZ £22gézlfl642623622>
Attorneys for Plaintif€.

. V

 . (10.)
State of Kentucky.
_ Floyd County, SoliCits.
The affiant, C. B. Edgerton, says that he is the Agent
for the Plaintiff, the Yellow POplar Lumber Co., and tne principle
Employee of said C0. in Floyd County, Kentucky, and that he be—
116ves the statements of the foregoing petition to be true. 4
Subscribed and sworn to By C. B. Edgerton, the
day of April, 1895, before me, a notary public of Floyd County.

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