Haws v. Short
Decision Date | 21 June 1957 |
Citation | 304 S.W.2d 924 |
Parties | Nora L. HAWS, Appellant, v. Ollie J. SHORT et al., Appellees. |
Court | United States State Supreme Court — District of Kentucky |
C. F. See, Jr., Louisa, for appellant.
K. C. Elswick, Louisa, for appellees.
Nora L. Haws has filed a motion for an appeal from a judgment quieting the title and fixing the boundary line between her property and appellees' adjoining property. The appellees filed this action seeking relief under KRS 411.120. The property involved is a narrow strip of land valued at $500.
The complaint alleges that the appellees are 'the owner of and entitled to the exclusive possession of the real estate hereinafter mentioned and described'. Appellant's motion to dismiss the action for failure to state a claim against her was overruled. She contends that the complaint is defective for failure to allege that appellees had actual possession of the premises at the time the complaint was filed.
The pertinent part of KRS 411.120 is:
'Any person having both the legal title and possession of land may prosecute suit, * * * in the circuit court of the county where the land or some part of it lies, against any other person setting up a claim to it.'
The statute was construed in Smith v. Williamson, 306 Ky. 467, 208 S.W.2d 503, 504. The ruling of the lower court in sustaining a demurrer to the petition was sustained for failure to allege possession. The Court said:
* * *'
The latest case in which this question was considered is Noland v. Wise, Ky., 259 S.W.2d 46, 48. The rule was stated thus:
See also Newsome v. Hamilton, 142 Ky. 5, 133 S.W. 952; City of Cloverport v Polk Canning Company, 149 Ky. 414, 149 S.W. 817; Taylor v. Wilson, 182 Ky. 592, 206 S.W. 865; Brown v. Martin, 239 Ky. 146, 39 S.W.2d 243; Warfield Natural Gas Company v. Danks, 271 Ky. 452, 112 S.W.2d 674; McGiboney v. Newman, 277 Ky. 835, 127 S.W.2d 860; Spencer v. Steele, 296 Ky. 3, 175 S.W.2d 1008.
Appellant filed an answer consisting of a denial, an allegation of title by adverse possession under color of title, and a claim of estoppel by agreement as to the disputed line. No affirmative relief by counterclaim was...
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...of property, and the court resolves the dispute. There, as here, the injury is the competing claim of ownership. Cf. Haws v. Short, Ky., 304 S.W.2d 924, 925 (Ky.1957) ( “It is fundamental that in an action to quiet title the plaintiff must allege and prove both title and possession.”). EQT'......
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