Shaheen v. Dorsey

• Decision Date: 20 March 1925
• Citation: 208 Ky. 89,270 S.W. 452
• Parties: SHAHEEN v. DORSEY.
• Court: Kentucky Court of Appeals

270 S.W. 452

208 Ky. 89

SHAHEEN v. DORSEY.

Court of Appeals of Kentucky.

March 20, 1925

Appeal from Circuit Court, Marion County.

Action by G. A. Shaheen against J. A. Dorsey. From a judgment for defendant, plaintiff appeals. Affirmed.

H. W Rives and C. S. Hill, both of Lebanon, for appellant.

Proctor K. McElroy, of Lebanon, for appellee.

THOMAS J.

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 were parts 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 allotted, 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.

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 onto 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 second paragraph of the petition plaintiff claimed damages on account of defendant's trespassing stock in the additional sum of $1,000.

The lands of plaintiff and defendant front on a pike, known as Gravel Switch pike, and a short distance therefrom it intersects at about right angles with another pike, known as Lebanon and Danville pike, and some disstance away from the intersection of the two pikes, and at or near the corner of plaintiff's land, there runs a creek from one pike to the other, making a triangle inclosed by the two pikes and the creek. For more than 60 years the public generally had traveled up and down the creek, in going from one pike to the other, thereby saving the distance necessary to be traveled by crossing the...