Helton v. Asher

• Decision Date: 07 December 1909
• Citation: 123 S.W. 285,135 Ky. 751
• Parties: HELTON et al. v. ASHER.
• Court: Kentucky Court of Appeals

123 S.W. 285

135 Ky. 751

HELTON et al. v. ASHER.

Court of Appeals of Kentucky.

December 7, 1909

Appeal from Circuit Court, Bell County.

"To be officially reported."

Action by Carter Helton and another against A. J. Asher. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

A. G Patterson and N. R. Patterson, for appellants.

N. J Weller, for appellee.

HOBSON J.

On February 2, 1902, A. J. Asher conveyed by deed of general warranty to Carlo Helton a tract of eight acres of land lying in Bell county. On April 26, 1906, Carlo Helton conveyed the land by deed of general warranty to Carter and Farmer Helton who built upon it a storehouse, residence, and other buildings. Previous to the sale to Carlo Helton, Asher had granted to Taylor and Crate a right of way over the eight acres for a tramroad to get out logs to market. After the purchase of the land by Carter and Farmer Helton, and after they had settled upon it, Taylor and Crate proposed to run the tramroad across it. This they resisted. Thereupon Taylor and Crate brought a suit against them, and obtained in the circuit court an injunction restraining them from interfering with the construction of the tramroad over the route proposed by them. The Heltons notified Asher of the suit when it was brought, and, when the injunction was obtained, they brought the case before a judge of this court on a motion to dissolve the injunction. On the hearing of that motion, it was determined that the tramroad should not be built on the route selected by Taylor and Crate, but on another route at a part of the premises, where it would be less injurious to them. On the return of the case to the circuit court, a final judgment was entered as indicated by the judge of this court. Thereupon the Heltons brought this suit against Asher on the covenant of warranty to recover damages for the taking of the easement over the land by Taylor and Crate, and for their cost in the injunction suit. Asher filed an answer to the petition, in which he denied the plaintiff's allegations as to the damages sustained, and pleaded in another paragraph that, when he sold the land to Carter Helton, he informed him of the easement which had been granted to Taylor and Crate, and Carter Helton agreed to take the land subject to the easement. He also alleged that Carter and Farmer Helton when they purchased from Carlo Helton had like notice. The court sustained a demurrer to this paragraph of the answer. The case coming on for trial before a jury, Asher testified that, when the suit was brought by Taylor and Crate, the Heltons came to him about it, and he told them that there was no use in defending the suit, that Taylor and Crate were bound to win it, and that they should just let the judgment go, that they answered that they were going to fight the suit to the bitter end, as they had a good man behind them. At the conclusion of the evidence, the court allowed Asher to file an amended answer to conform to this proof, in which he pleaded these facts in bar of any recovery of the cost incurred in the former action.

The court then gave the jury these instructions:

"No. 1. The jury will find for the plaintiffs the difference, if any, as shown by the evidence, between the market value of the eight acres of ground mentioned in the evidence before the time of the laying of the tramroad thereon by Taylor and Crate and the market value of said land after the laying of said tramroad, not to exceed the sum of $300.

"No. 2. If the jury believe from the evidence that the plaintiffs or either of them expended money in resisting the claim and right of Taylor and Crate to lay said tramroad over said land and using same asserted by said Taylor and Crate in the Bell circuit court and elsewhere in the courts, and further believe from the evidence that it was necessary on the part of the plaintiffs to expend said money for said purpose, and further believe from the evidence that the amount so expended by said plaintiffs in resisting the claim of said Taylor and Crate was reasonable, then the jury will find for the plaintiffs the reasonable amount so expended by them not to exceed the sum of $300, unless the jury further believe from the evidence that the defendant Asher, before said sum of money was expended by plaintiffs, if any, requested said plaintiffs or either of them not to expend said money in the defense of said claim, and offered to pay the plaintiffs or either of them the damage they would sustain by the laying of the said tramroad over the said land and using same in which event they will find for the defendant on this account."

The jury found a verdict for the defendant, and, the court having entered a judgment dismissing the plaintiffs' petition, they appeal.

The first instruction is not strictly accurate. The rule on the subject is thus stated in 11 Cyc. 1166: "The diminution in the value...