xt70zp3vt865_291 https://nyx.uky.edu/dips/xt70zp3vt865/data/mets.xml https://nyx.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 18601954 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. Ratliff, J.E. et al. v. May, Thomas and S.H. et al text Ratliff, J.E. et al. v. May, Thomas and S.H. et al 2016 1902 1902 section false xt70zp3vt865_291 xt70zp3vt865 *. ,.
In the Court of Appeals of Kentucky.
John E. Ratliff,
W. E. Coleman, and
Adam Venters, conmosing the firm of A
' J. E. Ratliff & Company Appellants.
, , Against// Brief for Appellants. . .
? Thomas May, ' V
g , S, H. May, J 1
§ A4 P. H; May, .
Alice Marrs, .
D. F. May,
‘ . Mollie E. Stratton, and Frank Damron A
; and Edgar Damron, by their neXt :
i friend, Thomas May. Appellees. '
' 7 May it please the Court:- -
This action was instituted in the Pike Circuit Court on
' the 19" day of August, 1902, by Appellees, Thomas May &c.,Vs
“ Appellants, J. E. Ratliff & Co., in which action Appellees
9‘ seek to recover of Appellants the sum of $3074.50 for timber g .E
. and timber trees, as alleged by Appellees which were out fro
. and were standing on a One Thousand Acre survey, patented to
John May and David May, in the year 1860. 2
' \ Appellees sue as the heirs at law of David May,(decease )
' Appellees also set out in their petition a writing, signed .
' by Appellants, in which writing Appellants promise and agree
to pay said sum for said timber. (see pages 1 to 3 of record"
Appellants by answer, claim that their signatures to said
writing was obtained by false representations, made by Appel
lees, as to the location of said "May" survey, and Appellant'
charge in their answer that Appellees knowledge as to the 10'
cation of the "May" survey was superior to the knowledge of ‘
Appellants, and this charge is nowhere denied by Appellees.
(see page 12 of the record). Appellants in their said Answe
deny that the timber in controversy grew within the One Tho "
sand acre patent to John and David May, under whish Appelle-
claim, but claim that Appellants own the land on which this
, timber grew, Appellants having purchased said land from one 4' ,
. /

 O
- The Big Sandy Railway Company, Petitioner.
. ' Vs. Appearance. (Josephine Elliott tract).
The Big sandy Coal & Coke Company, Defendant.
The Defendant the Big Sandy Coal & Coke Company, hereby
authorizes Mr. James Goble, attorney at law, Prestonshurg,
Kentucky, to enter its appearance to the proceeding in the
Floyd County or Circuit Court in the State of K entucky, to
condemn a strip of land 1055 feet long and 100 feet wide,
containing 2.57 acres, whereon to construct, maintain and op
erate a single or doutle tract railway.
. Big Sandy Coal & Coke Company.
_’ Sec'y. By .
Vice President.

 . .
' The Big Sandy Railway Company, Petitioner.
Vsz: Appearance. (D. H. Smith tract).
The Big Sandy Coal & Coke Company, Defendants.
' The Defendant the Big Sandy Coal & Coke Company hereby
authorizes Mr. James Goble, attorney at law, Prestonsburg, qu
- to enter its appearance to the proceeding in the Floyd Cir- ,
cuit Court in the State of Kentucky, to condemn a strip of
land 7787 feet long, and 100 feet wide, and containing 17.87
acres, whereon to constrict, maintain and operate a single
or double track railway.
Big Sandy Coal & Coke Company.
“.__—._.. WM
Sec'y. Vice President.

 ‘ 0
George W. Potter and John Belcher, (See page 8 to 15 of re—
cord) And Appellants claim that said land was patented to th:
said George W. Potter and John Belcher ( See Page 54 of reco i
i In order to settle and adjust this controversy, it is n:
cessary to locate the John and David May survey.

This Survey says :- "Beginning at Two White Oaks" wit
out saying on what waters or wnere the White Oaks stand, BXC:o
to say " corner trees of Isaac Epling" and to say"running
with the calls of the said Ramey survey" (see pages 26, 95 a.»

- , 96 of record). Now examine the"Isaac Epling"survey, made
on the same day, and there can be found no corner in said
. survey calling for " Two Whiteoaks" alone. (See pages 22 and
‘ 23 of record). It is true that the secdnd corner in the "
Epland" survey calls for " Two White Oaks and a black gum
_ on the fork ridge of Grassy Creek”, but proof shows that the -
" Two White Oaks" stands some 50 feet apart, and that the
Black Gum syands between them, and near to the line (See '
Deposition of W.J. Roberts, pages 84 and so of record, and
' Deposition of John A. Dills, page 109 of record).
' If the "May" patent begins at the "Two White Oaks and
‘ I Black Gum ofl the fork ridge of Grassey Creek", then the timb
' in controversy would be inside the "May" patent, Appellees
should recover. ,
~ If the" May" patent begins at the " Two White Oaks " on
the south side of Beaver Knob, then the "May" Patent would.
not include the land on which the timber in controversy grev
(See deposition of Adam Venters, page 100 of record), and
— this cause should be reversed, with directions to dismiss -
plaintiffs, and Appellees petition.
- And as the "May" survey does not tell where the two
" White Oaks" stand, except to say " Corner trees 0 Isaac
Epland" and " With call of the Ramey Survey" (pages 26,95 &
‘ 96 of record), we go to John May the Surveyor of Pike Count
at the time this survey Was made, and the man who made this

 0
survey, and the man who was one of the Patentees in this
"May" survey and take his deposition. John may swears pos-
itively that the " Two White Oaks", the beginning corner of
. ’ the "May“ survey is on the south side of Beaver Knob, at the
head of Beaver Creek, and between Beaver and Grassy Creeks.
(see deposition of John May, pages, 118, 243 of record).
John May also states why the "May" Survey calls for a corner
of the " Epling " Survey, and why it calls " Running with th
calls of the Ramey survey" and why the " Chestnut and Black
oak" are called for in the "May" survey, nert to the last
call in said "May" survey: Says that it occurred in this way
That they began the Epling survey first( Both being made the
I same day),and surveyed a part of the "Epling" survey and
ran down the ridge to near Beaver Knob, and then went to the
thwo " White Oaks" at the South side of Beaver Knob, and mark d
: them as the beginning corner of the "May" survey and made t ,
i May" survey by call lines, that is he made it by platting i =
p out, without actually going over the ground, and then went 5
back and finished the "Epling" survey, and in ”platting" th:{
"May" survey he intended to make it "tack" on to the "Eplingi
; survey, and this is why he called for " A corner in the Epl':g
. survey" and why he called for the Chestnut—oak and black oa‘:
on a ridge (third corner in Epling survey and next to last 2
' corner in "May" together in "May" survey); that this was do :
- by platting, and that he intended to make them "tack" togetigr
V and that Isaac Epling told him that the William Ramey surve é
ran to or close to Beaver Knob is why he called for the Rang
Survey in making the "May” survey". (see page 102 and 1/2 o g
record). :
I Now, let us see to what extent John May, the Surveyor, %
and patentee of the "May" survey is corroborated. E
James Polly (page 26 of recordshows that he was marker :
when "May" survey was made) swears that he was present when in
, , J

 O
the "May" survey was made; that said survey was made to be—
gin at the two White Oaks at the South side of Beaver Knob.
(see page 104 of record). '

The record shows (page 26) that Mose Coleman was a chai
carrier when the "May" survey was made. Appellants in their
affidafit for continuance (which affidafit was allowed to be
read as the depositions of the witnesses therein named— set
out that the can prove by Mose Coleman, that he(Mose Colema )
was one of the Chain Carriers when the "May" survey was made,

‘Iand that said survey began at the "two White Oaks" at the I
iSouth side of Beaver Knob. (see record page 45). ,
«_ Appellants also file the deposition of Isaac Epling (de:
viceased), taken in the case of Sarag D. Barr &c., Vs. George
VFW. Potter &c. The record (page 26) shows that Isaac Eplin.
was also the other Chain Carrier when the "May" survey was ;
made. Isaac Epling in this deposition, swears positively a
that he was present when the "May" survey was made, and that:
it began on two Whiteoaks on the Beaver Khob. Isaac Epling ‘
in said deposition also swears positively that the two White.
Oaks and Black Gum,(second corner in Epling survey)is not th
g beginning corner of the "May" survey; swears that they are a;
least one mile and one half apart. (Se page 65 of record). I
I John May is still further corroborated in this:- That
I some years after making said survey, he (John May) attempted
I to sell his interest in said survey to one Davidson Belcher,
, and that he took Belcher to the "Two Whiteoaks" on the S ut
side of Beaver Knob for the beginning corner of said survey
(see page 42 of record)
John May is still further corroborated in this by the
deposition of George W. Potter, John Belcher, and Buck Damro:
I who srear that they are each acquainted with t e oak trees an
the south side of Beaver Knob, and that they are notable an;
reputed corner trees as the beginning of the said "May" sur -
(See pages 40 and 41, and 43 of record)

 0
To make the beginning corner of the "May" survey at they
second corner in the "Epling" survey, Appellees can show no .
reason why the"Black Gum" called for at this (page 22 of re-
cord) corner of the "Epling" survey is not called for in the)
V "May" survey,(page 26 of record) Proof shows that these
two white oaks (second corner of "Epling survey) stand some
fifty feet apart (page 85 of record) with the "Black Gum" ,
between the two white oaks and on the line of the "Epling" s.
survey. Then we are led to inquire, why would any man (espeq
_€ially making a survey for himself) call for two white oaks ;
some twenty five feet from the line of survey and fail to :
icall for a black gum on the line of survey? Why does the E
i"May" patent fail to say "on the fork ridge of Gra sy Creek"i
as called for at the two white oaks and black gum, second co.
I ’ ner of "Epling”survey? , 5
Proof in this case shows that the ”Epling" survey and t'-
"May" survey were both made on the same day, and that the "

I Epling" surveywas begun, and the greater part of it made fir‘
(pages 119 to 121 of record), and proof also shows that to b;
gin the "May" survey at the second corner of the "Epling sur
vey(as claimed by appellees) that these two surveys would 2
"lap" upon earh other (See depositions of W. J. Roberts, pag{
84 of record, and deposition of John A. Dils page 106 of 5
record). ' 3

E Now why would John May, or any other man, make a survey; 3
. in the forenoon, and in the afternoon of the same day make a: 1
survey for himself that would lap upon the one that he had 3;:
I i made the same day? We c:g:understand how a man making a sur:
vey, especially for himself could do this. ;
It is nowhere denied, in fact admitted by Appellees, thf
if the "May" survey begins at the two white—oaks at the Sout;
side of Beaver Knob, that Appellees do not own the land on i
which the timber in controversy grew (See Tage 100 of record
We now desire to call attention to the writing sued on

 O
oy Appellees. The writing contains this clause:- "The said
' J. E. Ratliff & Co., has agreed to pay the May heirs $3.2b pe
ree for all the trees cut by them inside 9: the §g§_ag§§s
0W“§§,E¥ them" (See pages 4 and 11 of record). It will be ob
‘ served that Appellants by said writing did not promise nor
agree to pay Appellees for any timber cut by Appellants unle
it grew "Inside 9f thg ggg agfg§_9wn§d bv them: (appellees).
lor did Appellants promise to_pay for any standing trees un-
less they were "Etanding in_bgund§ Bf said survey gyned_by
-flanr ZEEJEEEEN'
, By the proof in this case we are compelled to believe
that John May, Surveyor, Mose Coleman and Isaac Epling, Chair
Carriers, and James Polley, Marker, in making the "May" sur
vey, actually marked the "two white oaks" at the South side
‘ ‘ of Beaver knob, because these witnesses all swear th this 1
fact, and the same is not contradicted, not attempted to be
contradicted by any witness,and that said witnesses actually
located said survey "on the ground" beginning at these two
"White Oaks"on the south side of Beaver Knob.
Now, Appellees contend that while this may be a fact ‘
I that when John May went to make a "Report" or "return" of th .
survey that he located it beg'nning at the second corner in
the "Epling" survey, beginning at the "two White Oaks and
Black Gum on the fork ridge of Grassy Creek" Now, John May
and Isaac Epling both swear that he did not do this, and Joh
May explains as before cited why he called for the "Epling"
survey &c, and the "Ramey" line. But if Capt. John May is
mistaken about makint the "report" and return of this survey
Vand if he actually did make a "Return" on this survey, making
it begin at second corner in the " Epling" survey, but in
locating the survey"on the ground" actually made the two
white oaks at the south side of Beaver Knob the beginning co.
ner, (as all the proof in this case shows was done), then we {a

 . ‘
go to the law of the-case to ascertain which is the "survey11
"the work on the ground" or the"report and return" . Dembitz
on Land Titles, Vol. 1, page 19 says:-
"The monuments on the ground, the trees
blazed or otherwise marked, are the "sur-
vey, the map and field notes on paper are
. only the report or return of the survey.
The patent is understood to refer to
the actual run on the ground, rather
than to the courses and lines named
in the return. The original marks
and living monuments constitute the
' ”Survey".
This doctrine has been upheld by decisions of the U. S.
Court, and by the Appellate Courts of various States:-
-Clement Vs. Packer, 125 U. S. 509, 527, 8 Sup
Ct. 907.
- Goodman Vs. Myrick, 3 Oregon, 63;
~Kronnenberge§ Vs. Hoffner, 44 M0,, 180;
-Whitehead Vs. Regan, 106 No,, 231.
Dembitz on Land Titles on same page cited above saysz-V
"When they"(referring to corner trees)
"have been marked, but lost, it has
- been held in the majority of the cases, '
> that these lines or points, when re-
stored by the recollection of witnesses,
are still the best evidence for set- 3
tleing the position and boundaries
of a tract".
This doctrine has been upheld by our own Appellate Court .
(See Dimit Vs. Lashbrook, 2 Dana, page 2. ‘
Appellants affirm that the beginning corner of the "Ma
survey has been established at the two white—oaks at the K
South side of Beaver Knob both by the "recollection of Wit- :
nesses" and by "Reputation" (see pages 40 to 43 of record). 3
Appellants affirm that the Court erred in compelling ;
them to try this cause without the depositions of the wit- '
nesses set out in their affidafits, and affirm that these :
. 3
affidafits should be considered as the depositions of said j
witnesses. ;

 ,0»
We submit that the John & David May patent is void, ‘06--
cause being for more than two hundred acres, in violation 01'
law.
We submit that the Judgment is erroueous, and should be
reversed tith instructions to dismiss Appellees' petition.
‘Attornefrs for Appellant’s?

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