Moran v. Vicroy

• Decision Date: 18 December 1903
• Citation: 77 S.W. 668,117 Ky. 195
• Parties: MORAN v. VICROY.
• Court: Kentucky Court of Appeals

77 S.W. 668

117 Ky. 195

MORAN v. VICROY.

Court of Appeals of Kentucky.

December 18, 1903

Appeal from Circuit Court, Mason County.

"To be officially reported."

Action by Wesley Vicroy against W. L. Moran. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. L Chamberlain, W. D. Cochran, and E. L. Worthington, for appellant.

Thos R. Phister, for appellee.

BURNAM C.J.

Appellant and appellee were the owners of adjoining farms, and for several years a controversy has existed between them as to the ownership of a strip of land about 10 or 12 feet wide and 73 poles long. On August 2, 1898, the appellee, Vicroy brought an action against the appellant, alleging in three separate paragraphs that appellant had on three separate occasions torn down the division fence which he had erected upon his own land between their respective farms for the protection of his stock. The appellant filed an answer to each paragraph of the petition, denying that appellee was the owner or in possession of the land on which the alleged trespass was committed. In a second paragraph he alleged that he was the owner and in possession of the land at the places at which the alleged trespasses were committed. On the same day that appellee brought his action of trespass, he brought this action in equity, reciting the same acts of trespass, and alleged that, unless the defendant was restrained, he would continue to repeat his trespasses upon the land and against his rights and property, and would inflict other wrongs upon him, to his great and irreparable injury, and prayed that appellant should be restrained from removing his fence or landmarks, or from interfering with his use and occupation of his property. Appellant's answer in this suit was also a plea of liberum tenementum. The common-law case was tried out before a jury, who found a verdict for the appellee, Vicroy, fixing his damages at one cent. Thereupon appellee, by amended petition, pleaded the judgment in the common-law action as an estoppel against appellant's claim to any part of the strip of land on which the alleged trespasses were committed. The appellant demurred to this plea, which the court overruled. He thereupon filed a rejoinder, in which he denied that the verdict rendered in the common-law action was upon the issue joined as to the first and third of the alleged trespasses. The circuit judge sustained appellee's demurrer to this rejoinder, and, on appellant's declining to plead further, rendered a judgment in favor of appellee, enjoining appellant from trespassing on any portion of the strip of land claimed by appellee. From this judgment, appellant prosecutes this appeal.

The only question upon this...