Linn v. Hagan's Adm'r
| Decision Date | 16 March 1906 |
| Citation | 92 S.W. 11 |
| Parties | LINN v. HAGAN'S ADM'R. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bullitt County.
"Not to be officially reported."
Action by Francis J. Hagan's administrator against J. H. Linn. From a judgment for plaintiff, defendant appeals. Affirmed.
See 87 S.W. 1101.
Nat W Halstead and Greene & Van Winkle, for appellant.
F Hagan, for appellee.
This action was brought, on February 10, 1903, by appellee Hagan to recover the possession of about 25 head of cattle, which he alleged were wrongfully withheld from him by the appellant. The appellant answered, but did not deny that appellee was the owner of the cattle. He alleged that a vote had been taken in Bullitt county, under section 4646, Ky. St. 1903, and that a majority had voted to prohibit cattle from running at large in that county, and that the vote had been counted, certified, and recorded as required by the statute. That the appellee had suffered, or permitted the cattle sued for, to run at large in violation of the statute, and they had trespassed upon and damaged his property, and that he had impounded them, by the direction of the sheriff, and kept and fed them for three days, for which he charged $198. That the cattle injured his property to the amount of $100, and he pleaded the $298 as a counterclaim. On the trial the court permitted the appellant to assume the burden of proof, and, at the close of his evidence, the court, upon motion of appellee, gave a peremptory instruction to the jury to find for the appellee.
It appears from the proof that the parties to this action were close neighbors, but were not upon the best of terms. It is evident that appellant knew the cattle of appellee. On the morning of the 12th of February, 1903, these cattle got out of the field, where they were kept, and walked up the public highway to the gate, which was open, and they entered the front yard or lawn of appellant, which contained about two acres. Appellant saw them about the time they entered, and instead of driving them out, and saving his grass and shrubbery, he closed the gate and kept them on his lawn during the day, while he sent one of his hands to the county seat to get instructions from the county judge and sheriff what to do with the cattle or how to impound them under the law. Then he took them to his stock barn, and fed them until the next Monday, when they were taken from him by the order...
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