Meehan v. Edwards

• Decision Date: 12 February 1892
• Citation: 18 S.W. 519,92 Ky. 574
• Parties: Meehan et al. v. Edwards et al.
• Court: Kentucky Court of Appeals

18 S.W. 519

92 Ky. 574

Meehan et al. v. Edwards et al.

Court of Appeals of Kentucky.

February 12, 1892

Appeal from circuit court, Logan county.

"To be officially reported."

Action for damages by George T. Edwards and others against Thomas Meehan and others for cutting and removing timber. Judgment for plaintiffs, and defendants appeal. Affirmed.

Pryor J.

This action was instituted in the Logan circuit court by George T Edwards, as the executor of the will of Hester Edwards, and as trustee for his children, against the appellants, for an unlawful entry upon a tract of land held by him, as trustee under the will of Hester Edwards, and for an injury to the realty by cutting and removing from the land large quantities of timber, the value of which has been recovered by the verdict and judgment below. The land lies in the county of Logan, and the action, as originally instituted, was also against Charles H. Ryan, who had been served with process in that county, and his co-defendants, who are the sole appellants in this court, had been served in the county of Jefferson. The record shows that, by the consent of the parties, the action was dismissed as to Ryan, and, as he was the only defendant served in the county, it is now urged the circuit court of Logan had no jurisdiction of the persons of the defendants served in the county of Jefferson. While it may be inferred that the order dismissing the case by consent as to Ryan, with leave to defendants to file an answer, was a waiver as to the jurisdiction, we see no reason why the action was not local in its character, because the recovery was sought for an injury to the realty by cutting and removing from it valuable timber. Subsection 4, § 62, Civil Code, requires that an action for an injury to real property shall be brought in the county in which the property is situated, and the removal of the timber standing upon the land is the injury complained of.

It is insisted by counsel for the appellants that, to maintain trespass for an unlawful entry, the plaintiff should have alleged an actual possession of the land upon which the entry was made, and, while this doctrine has been changed by statute, it is a familiar rule of the common law that, in trespass for breaking the close, the plaintiff must allege possession. Suppose, however, the plaintiff is not in the actual possession, but the injury to the realty is such as to greatly lessen its value by cutting and removing the timber or buildings, can it be said that the trustee for those entitled to the immediate possession or those entitled in remainder has no remedy against the wrong-doer? This land was in a wild state, and more valuable for its timber than the actual soil upon which the timber stood. The appellants claim a right of entry under a contract with George Edwards, who held the title in trust for his children, and also the right to cut and remove the timber under the same contract. Now those invested with the legal title have the right to sue and recover for an injury to this realty by reason of the removal from the land of anything forming a part of it that lessens its value without the license or consent of the owner. It is argued the cutting and removing of timber is not such an injury to the realty as makes the action local, and the recovery seems to have been confined by the instructions to the value of the timber cut and removed. We do not understand it as necessary to show a forcible or wrongful entry on the land, disturbing the possession, before a recovery can be had. The Code makes the action local for an injury to real property, and it is not necessary to make such averments as were required at common law for breaking the close, to create a cause of action. If a wrongful or tortious entry is alleged, and a failure to establish it, still, if the realty has been damaged by a wrongful removal of the timber, it gives a cause of action to the owner. The rightful owner may make the tenant liable in such a case, although the entry was lawful, and why not make a trespasser liable who injures the realty by cutting and removing the timber from it for his own use? It is not the possession that has been molested by the intruder, but the timber that has been destroyed, injuring the value of the realty, and of this the rightful owner complains. It is alleged the defendants committed divers trespasses upon said land, and great damage thereto by cutting down, hauling away, and appropriating to their own use valuable timber, (describing it,) of the value of $3,000 that they also injured the...