Chenault v. Quisenberry

• Decision Date: 20 June 1904
• Citation: 81 S.W. 690
• Parties: CHENAULT et al. v. QUISENBERRY et al.
• Court: Kentucky Court of Appeals

81 S.W. 690

CHENAULT et al. v. QUISENBERRY et al.

Court of Appeals of Kentucky.

June 20, 1904

Appeal from Circuit Court, Wolfe County.

"Not to be officially reported."

Action by Ezekiel Quisenberry and others against E. C. Chenault and others. From a judgment for plaintiffs, defendants appeal. Reversed.

W. S Pryor, J. B. White, and Hazelrigg & Chenault, for appellants.

D. L Pentleton, T. L. Edelen, and J. C. Lykins, for appellees.

PAYNTER J.

This is the third appeal from judgments of the lower court. Chenault v. Quisenberry, 43 S.W. 717, 19 Ky. Law Rep. 1632; Id., 56 S.W. 410, 21 Ky. Law Rep. 1771. Under the doctrine of stare decisis, the former opinions must control the opinion of the court on this appeal.

The jury returned a verdict for the plaintiff for $2,000 damages. If there should have been a verdict at all for the plaintiff the amount is palpably and flagrantly against the weight of the testimony. It must have been based largely upon the testimony of J. H. Stamper and another witness, who went upon the land and estimated the value of the timber which had been cut within the past three previous years. This estimate was made after Daniels had cut large quantities of timber under a contract which was approved by the appellee, and pursuant to an order of court. The proceeds of the timber thus cut was paid to the receiver of the court to await the judgment of the court. The testimony of the appellants showed that they had cut timber off the land of not greater value than $100 to $150. One witness introduced by the appellees testified that the logs taken off by Chenault were of the value of $600 to $700. It is evident that the jury's verdict was for the timber which had been taken off by Daniels under the order of the court, and the proceeds of which are in the custody of the court. If for no other reason, the judgment should be reversed because it is flagrantly against the weight of the evidence in the question of damages.

In the first opinion (43 S.W. 718, 19 Ky. Law Rep. 1634) the court said: "We are of the opinion that instruction No. 1 is erroneous, in that it permits a recovery by proof of possession prior to 1855, when the proof shows that F. B Quisenberry, the ancestor of appellees, deeded all interest he had in the land to John D. Spencer, and there is no proof as to its reconveyance. We are also of the opinion that instruction No. 2 is erroneous. There is no proof that appellees were in the actual possession of this land under the papers referred to, claiming to a marked or natural boundary as represented by the deeds. Title papers may be used to show boundary and extent of possession, but there must be shown an actual entry and possession under the paper title before they can be so used."

On the last appeal (56 S.W. 410, 21 Ky. Law Rep. 1771) the court, in discussing the conveyance by Quisenberry to John D. Spencer and the alleged reconveyance, said: "It is attempted to show that title to a part of the tract then conveyed was reconveyed to Quisenberry by showing that a written contract was entered into between Spencer and Quisenberry and acknowledged, and left in the clerk's office, and that the clerk's office was subsequently burned. The evidence of this contract is relied upon by appellees as showing a tenancy in common by Quisenberry and...