Smith v. Bell

• Decision Date: 12 November 1881
• Citation: 91 Ky. 655,25 S.W. 752
• Parties: SMITH et al. v. BELL et al.
• Court: Kentucky Court of Appeals

25 S.W. 752

91 Ky. 655

SMITH et al. v. BELL et al.

Court of Appeals of Kentucky.

November 12, 1881

Appeal from circuit court, Greenup county.

"To be officially reported."

Action by Bell & Co. against John W. Smith and others. Judgment for plaintiffs. Defendants appeal. Reversed.

Roe &amp Roe, for appellants.

B. F Bennett, for appellees.

HARGIS J.

Pending an action for the division of the land, appellant John W Smith entered on it, was made a party to the action, and adjudged to be without title and a trespasser. While the action named was undetermined, the appellees sued Smith for rents and damages to the land, and subsequently filed an amended petition, disclosing a final determination of the first action, and seeking to recover attorney's fees alleged to have been expended in its prosecution to final recovery, and also rents up to the time of filing the amendment. It appears that Smith had cleared about 95 acres of the land, cut and used 3,800 cords of wood, and occupied the land 11 years. The cause was referred to the master commissioner to ascertain the value of the rents, damages to the land, and attorney's fees; but Smith's motion to require the commissioner to ascertain and report the value of the lasting and valuable improvements made by him upon the land was overruled, and he excepted. On the coming in of the report of the commissioner, both parties excepted, and the court, declining to act separately on the exceptions, rendered judgment for $2,520, with interest from the date of the judgment, subject to credits hereinafter noticed. The judgment is made up of the following items, to wit:

Thirty"eight hundred cords of wood at ..	$ 570
Rent for the land .......................	1,250
Reasonable attorney's fee .................	700
	------
	$2,520

This judgment is inconsistent with the exceptions of each of the parties, and, in substance, overrules all of Smith's and part of appellees', and Smith appeals, asking its reversal on several grounds, which, so far as material, we will consider in the order most fitted to our conception of the case. We cannot say from the evidence that the value of the wood and rent is unreasonable, but the court erred in refusing to allow the appellant Smith to prove the value of lasting improvements, as he should have been credited therewith on the cordwood and the amount of rents produced by reason of the improvements to the extent they increased the rental value of the land above what it would have produced had appellant made no improvements. While it is true that appellant Smith cannot recover from appellees for improvements, nor...