Farmers Nat. Bank of Somerset v. Bolton

• Decision Date: 13 October 1936
• Citation: 97 S.W.2d 406,265 Ky. 586
• Parties: FARMERS NAT. BANK OF SOMERSET et al. v. BOLTON.
• Court: Kentucky Court of Appeals

97 S.W.2d 406

265 Ky. 586

FARMERS NAT. BANK OF SOMERSET et al. v. BOLTON.

Court of Appeals of Kentucky

October 13, 1936

Appeal from Circuit Court, Pulaski County.

Suit by Robert L. Bolton against A. T. Sears and the Farmers National Bank of Somerset, Kentucky, which was consolidated for trial with a suit by Bradley Garrison against Robert L. Bolton. From a judgment for Robert L. Bolton, the Farmers National Bank and Bradley Garrison appeal.

Reversed for proceedings consistent with opinion.

W. O Hays and R. C. Tartar, both of Somerset, for appellants.

Virgil P. Smith, of Somerset, for appellee.

RATLIFF Justice.

This is the second appeal in this case. The issues and the facts supporting them are stated in our former opinion. See Bolton v. Sears, 257 Ky. 676, 78 S.W.2d 914, 916. It is unnecessary to repeat them.

In our former opinion we stated: "Bolton should have had more carefully made surveys of his part of the Ruark land than he had, he should have shown more definitely and exactly the location of the house from which he was evicted, still he had some evidence of those things that if believed by the jury would have sustained a verdict in his favor, and with such evidence before the court, the direction of a verdict against Bolton was erroneous."

On the second trial he endeavored to meet this requirement and did so sufficiently to entitle him to have the case submitted to the jury, which was done. It returned a verdict in favor of Bolton for $250. The court entered a personal judgment therefor in his favor against A. T. Sears and the Farmers National Bank and further decreed that Bradley Garrison was not the owner of the dwelling house from which Bolton was evicted under a writ of possessions heretofore issued on a judgment of the court; Garrison was ordered to remove therefrom and surrender possessions thereof to Bolton. Garrison and the bank on this appeal insist that the jury's verdict is palpably against the weight of the evidence. Also that the court erred in its instructions to the jury. We disagree with the first insistence, but concur in the last, that the instructions to the jury are erroneous.

The results of this case depend on the true location of the line between the lands respectively claimed by the parties, each contending that the true line is in a different place from that claimed as its location by the other. If the true line runs where Bolton claims it does, then trespass was committed on his land. On the other hand, if it is located where Garrison and the bank claim it is, then no trespass was committed on Bolton's land.

Instruction No. 1 given by the court is substantially correct, but it might be more or less confusing to the jury. Upon another trial of the case, the court will ascertain from the testimony the line or lines claimed by the respective parties, and instruct...