N. O. Browning & Katie Browning v. Marshall
| Decision Date | 31 May 1921 |
| Citation | 192 Ky. 295 |
| Parties | N. O. Browning and Katie Browning v. Marshall, et al. |
| Court | Kentucky Court of Appeals |
Appeal from Pendleton Circuit Court.
JOHN B. COLVIN and LESLIE T. APPLEGATE for appellants.
A. H. BAKER and M. C. SWINFORD for appellees.
Prior to November, 1913, W. R. Marshall was the owner of a tract of 119¼ acres of land on Licking river in Pendleton county. Adjoining his farm on the north-west appellants, Browning and wife, owned a tract of land.
In November, 1913, Marshall conveyed his tract of land to Dennie Washburn. For some years prior to that time the dividing fence between the Marshall and Browning farms had been very poor and, in fact, at places there were gaps or openings in it, and it afforded no protection to either from the stock of the other. But it is claimed by appellees that, a year or two before the conveyance to Washburn, Marshall and Browning had entered into an agreement by which Browning might erect a temporary fence at a place known by them not to be on the true line, so that Browning might get the benefit of his pasturage and turn his stock out on his side; and this agreement, as alleged, involved a temporary enclosure by Browning of a small strip of Marshall's farm, approximately an acre or an acre and a half, and it was agreed that later, when a permanent fence should be made, it was to be put upon the true line.
At the time of the conveyance by Marshall to Washburn it was pointed out to the latter that the temporary fence was not on the correct line, and Marshall informed Washburn of the agreement between him and Browning.
Thereafter Washburn demanded of Marshall that he put him in possession of this strip of land which he had conveyed him by warranty deed, whereupon Marshall demanded of Browning that he place the fence upon the true line, which Browning at the time, according to the plaintiff's contention, agreed to do.
The matter thus ran on until 1918, when W. R. Marshall died, and thereafter his heirs or devisees, joint appellees herein with Washburn made a similar demand upon Browning and at that time it was agreed between them and Browning that a survey of the line between the two farms should be made and that he would abide by the result of that survey and move the fence if the survey showed that as then constructed it was not on the tru line.
This is an equitable action by the children of W. R. Marshall, and Washburn, praying that the latter be adjudged the owner of the strip of land in controversy, and that his title thereto be quieted, and that the defendants be required to put the fence on...
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