Board v. Head

• Court: Kentucky Court of Appeals
• Writing for the Court: Marshall
• Citation: Board v. Head, 33 Ky. 489 (Ky. Ct. App. 1835)
• Decision Date: 28 October 1835
• Parties: Board <I>vs.</I> Head.

33 Ky. 489

Board vs. Head.

Court of Appeals of Kentucky.

October 28, 1835.

Mr. Pirtle for plaintiff: Messrs. Morehead and Brown for defendant.

FROM THE CIRCUIT COURT FOR HANCOCK COUNTY.

Judge MARSHALL delivered the Opinion of the Court.

HEAD sued Board, in an action of trespass, vi et armis, for seizing and carrying away and converting to his own use a horse, bridle and collar, the property of the plaintiff, and then in his possession. The parties went to trial upon the plea of not guilty, and leave to give special matter in evidence.

It appears that Board, being a constable of Hancock county, had an execution in his hands, against Head who resided in Daviess county, immediately across the division line between the two counties, and that the stable in which the horse, bridle &c. were seized, was also across the line, as it had been actually run by the surveyor appointed to run it. But that, notwithstanding this fact, of which Board was apprized at the time, he took the property and sold it, upon public advertisement, in the usual form, for the satisfaction of the execution. His return states, that the property sold for twenty five dollars; of which, after deducting costs and commission, eighteen dollars and fifty cents remained as the net proceeds of the sale, to be credited on the execution. It was stated by a witness on the trial, that the horse, bridle and collar were worth thirty six dollars and fifty cents; and for that sum a verdict and judgment were rendered against the defendant; who, having excepted to several opinions of the Court, pronounced during the trial, prosecutes a writ of error, for the reversal of the judgment.

The first question to be noticed relates to the county line.

The statute erecting the county of Hancock describes a portion of the boundary as running from a designated point, "to the mouth of Scaffold creek, so as to leave William Head and Samuel Barker in the county of Daviess." The line, as actually run, left the stable, as well as the dwelling house, of Head (the plaintiff) in the county of Daviess; and the Court refused to permit the defendant to ask of a witness the question, whether a line run as described in the words above quoted from the statute, would, or would not, include the plaintiff's stable in the county of Hancock. In this we think the Court decided correctly. The boundary lines of counties are matters of public concern; and when they have been run, and their position ascertained, by public authority, the actual line — though it should vary from the descriptive boundary designated in the statute, must be conclusively binding upon all private individuals and county officers, until a different position is given to it by the public authorities. It is also a familiar principle in relation to boundary lines, and one which seems applicable to public as well as private boundaries, that a descriptive course shall yield to a line actually run. It is by no means certain, and is not conceded, that in directing the line to be so run as to leave William Head in the county of Daviess, the Legislature intended that it should barely leave his dwelling house in that county, without regard to other adjacent buildings which usually form a part of a man's homestead, or of the curtilage. But we are satisfied, that when the surveyor designated by the Legislature, had run the line, the constable had no right to act, as such, beyond it; and that having passed it knowingly, his acts were not only without authority, but without that paliation which ignorance of fact sometimes furnishes. And that, as the testimony offered was incompetent to prove that he was within his county, it was entirely irrelevant to the issue, and properly rejected.

After the defendant had been precluded from this testimony, he asked a witness who had been introduced by the plaintiff, whether he (the witness) had not, at the sale, purchased the horse in question with the plaintiff's money, and for his use, and this question being objected to, the Court would not permit it to be asked or answered. But instructed the jury, that if they believed, from the evidence, that the line actually run by the surveyor, as the boundary between Hancock and Daviess counties, left the plaintiff's stable in Daviess county, and the defendant took the property and sold it under execution, they must find for the plaintiff, and that the value of the property, with such smart money as they might choose to...