Patterson v. T.J. Moss Tie Co.

• Citation: 97 S.W. 379
• Parties: PATTERSON v. T. J. MOSS TIE CO. ET AL.
• Decision Date: 14 November 1906
• Court: Kentucky Court of Appeals

97 S.W. 379

PATTERSON v. T. J. MOSS TIE CO. ET AL.

Court of Appeals of Kentucky.

November 14, 1906

Appeal from Circuit Court, Ohio County.

"Not to be officially reported."

Action by B. N. Patterson against the T. J. Moss Tie Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Glenn &amp Ringo and Barnes & Anderson, for appellant.

Heavrin & Woodward and M. L. Heavrin, for appellees.

LASSING J.

This is the second appeal of this case from the verdict of a jury in favor of defendants. The former judgment was reversed by this court because of erroneous instructions. This court in that case, found in 71 S.W. 930, 24 Ky. Law Rep. 1571, said "The controversy is really over the location of a boundary line between the two pieces of land." On the last trial, and at the conclusion of appellant's evidence, the following agreement between the parties was entered of record: "It is agreed by both plaintiff and defendants in this action that the defendant Eliza J. Taylor is the owner of and in possession of all of the land north of the south line of the 5,000-acre May survey, and it is further agreed that the said May land is the south boundary line of the defendant Eliza J. Taylor's land." Each side introduced a number of witnesses to prove that the timber in question was cut from the land owned by it, and also to show where the true line separating the land of plaintiff from the land of the defendant is located.

At the conclusion of the testimony, which was very conflicting, the court gave to the jury the following instructions: "The court instructs the jury that if they believe from the evidence that the plaintiff is the owner of the land mentioned and described in the petition, and they further believe from the evidence that the timber sued for was on said land, they should find for the plaintiff the damages sustained by reason of the cutting of said timber by defendant, not to exceed the amount sued for, namely, $100. (2) If the jury believe from the evidence that the defendant is the owner of the land mentioned and described in her answer herein, and that the timber mentioned in the petition was included in her boundary, then they should find for the defendant." It is insisted by appellant that these instructions as given by the court did not submit to the jury the true issue involved in this suit, but left the jury to speculate, without directions or limitations on their power as to where the boundary line...