Shaheen v. Dorsey
| Decision Date | 20 March 1925 |
| Parties | Shaheen v. Dorsey. |
| Court | United States State Supreme Court — District of Kentucky |
1. Fences — Fence, Held Not Partition Fence, Subject to Removal by Statutory Method. — Fence, admittedly not on true line, which was constructed by tenant for his own convenience between tracts owned by his two landlords, held not a partition fence, removable under Ky. Stats., sections 1784, 1787, by subsequent grantee of one of such parcels, and, in an action against grantee of adjoining parcel for damages for interfering with attempted removel of such fense, verdict was properly directed for defendant.
2. Libel and Slander — Scurrilous Language, Not Libelous per se, is Not Actionable in Absence of Specific Damages Proximately Resulting Therefrom — Direction of Verdict for Defendant Held Proper. — Scurrilous language, not actionable per se, could not be used as basis of action for slander in absence of special damages proximately resulting therefrom, and, in action therefor, direction of verdict for defendant was proper.
3. Appeal and Error — Verdict as to Trespassing Stock, Founded on Correct Instructions, Not Interfered with on Appeal. — Where
plaintiff wrongfully removed fence between his and defendant's land, verdict of jury for defendant as to trespass by his stock on plaintiff's land, founded on proper instructions, will not be interfered with on appeal.
4. Highways — Person has Right to Peaceably Remove Fence Obstructing Way Used by Public for Over 60 Years. — Person has right to peaceably remove fence obstructing passway used by public on land of private person for more than 15 years.
Appeal from Marion Circuit Court.
H.W. RIVES and C.S. HILL for appellant.
PROCTOR K. McELROY for appellee.
Affirming.
The appellant and plaintiff below, G.A. Shaheen, and the appellee and defendant below, J.A. Dorsey, owned adjoining tracts of land in Marion county, each of which was a part of a larger tract formerly owned by Godfrey Isaacs, deceased, and plaintiff and defendant are the remote vendees of two of his heirs to whom the respective parcels were allotted in the division of Godfrey Isaac's estate. Not many years before the filing of this action, the two Isaacs heirs, to whom the respective parcels were alloted, rented their premises to one common tenant, and it seems that he, for his own convenience, attempted to construct a fence separating the parcels of his two landlords and he attempted to do so as near on the line as he conveniently could. That fence, which was admittedly not on the true line at places, was intact at the time the parties hereto acquired their titles. Misunderstandings arose between plaintiff and defendant, such as frequently occur between adjacent owners, concerning their respective lines. Acting upon the theory that the fence above referred to was a partition one as contemplated by section 1784 of our present statute plaintiff gave notice to defendant, as provided by section 1787 of the statute, that he would, within the time permitted by the statute, remove his portion of the partition fence, and when that time arrived he sent hands to the spot with instructions to make the removal. After they had torn down more than one-half of the fence defendant appeared and forbade their proceeding further. None of the posts had then been removed and the work was then and there stopped. Defendant carried with him at the time a double-barreled shotgun, but, according to the testimony of the witnesses, he was exceedingly polite in his conversation and demeanor towards them, though he referred to the plaintiff in somewhat scurrilous terms and used towards him profane language, none of which, however, was sufficient to constitute a slander. In plaintiff's petition he alleged the foregoing facts, and, in the first paragraph sought the recovery of damages against the defendant because of his interference with plaintiff's employees in removing the fence and because of his abusive language towards plaintiff, in the sum of $1,000.00.
Plaintiff neither restored the fence torn down by his employees nor did he construct another one separating his field from the lands of the defendant, and, as a consequence, some of the stock of the latter, in the early part of the following spring, strayed on to plaintiff's adjoining premises upon which corn was grown the year previous, with no grass pasturage of any kind, and which field had been pastured by plaintiff with his large flock of sheep, from the time the corn was gathered in the fall before, up to and after the time when the fence was torn down; and in the 2nd paragraph of the petition, plai...
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