Burt-Brabb Lumber Co. v. Crawford

• Citation: 86 S.W. 702
• Parties: BURT-BRABB LUMBER CO. v. CRAWFORD et al.
• Decision Date: 27 April 1905
• Court: Court of Appeals of Kentucky

86 S.W. 702

BURT-BRABB LUMBER CO. v. CRAWFORD et al.

Court of Appeals of Kentucky.

April 27, 1905

Appeal from Circuit Court, Lee County.

"Not to be officially reported."

Action by the Burt-Brabb Lumber Company against S. J. and H. C Crawford. Judgment for S. J. Crawford. Plaintiff appeals. Affirmed.

Theo. B. Blakey, for appellant.

Hazelrigg & Hazelrigg, Gourley & Redwine, and Chester A. Gourley, for appellees.

NUNN J.

The appellant, in floating logs down the Kentucky river, suffered four or five hundred of them to drift upon the lands of appellee S. J. Crawford. He objected to appellant removing the logs without first settling the damage done to his lands. Appellant then instituted this action under section 180 of the Civil Code, and executed the required bond, and in this way obtained its logs. Appellant also asked a judgment for $100 damages for the wrongful detention of the logs. Appellee answered, admitting the right of appellant to the logs, but denied the damages, and made his answer a counterclaim against appellant; claiming damages in the sum of $500 by reason of appellant suffering and permitting the logs to drift and remain upon his land until the water receded in the river, and by its directing and permitting its employés to enter upon his valuable bottom and farming lands with ox teams, and haul over and through the bottom the logs, and roll them into the river, thereby causing his lands to be tramped, washed, and otherwise injured, and also causing the banks of the river to break by reason of rolling the logs over it. The appellant filed a reply controverting the averments of the counterclaim. A trial was had, and the jury returned a verdict in favor of appellee S. J. Crawford for $200.

The appellant asked a reversal, first, for the reason of an alleged improper remark made by the court during the progress of the trial; second, of misconduct of the attorney representing the appellee in his argument to the jury; third because the damages were excessive; fourth, the verdict of the jury is not sustained by sufficient evidence; fifth because the court refused to permit competent evidence offered by appellant to be introduced.

The appellant's counsel, in his brief, suggests for the first time that it was improper and irregular to permit appellee to file the counterclaim and have it litigated on the trial of an action for the claim and delivery of personal property. Even if appellant is right in this, which we do not decide it is now too late to...