Taylor & Crate v. Burt & Brabb Lumber Co.

• Court: Kentucky Court of Appeals
• Writing for the Court: BARKER, J.
• Citation: Taylor & Crate v. Burt & Brabb Lumber Co., 109 S. W. 348 (Ky. Ct. App. 1908)
• Decision Date: 24 April 1908
• Parties: TAYLOR & CRATE v. BURT & BRABB LUMBER CO.

109 S.W. 348

TAYLOR & CRATE v. BURT & BRABB LUMBER CO.

Court of Appeals of Kentucky.

April 24, 1908

Appeal from Circuit Court, Breathitt County.

"Not to be officially reported."

Trespass by the Burt & Brabb Lumber Company against Taylor & Crate. From a judgment dismissing the petition, plaintiff appeals. Reversed for further proceedings.

O. H Pollard, W. B. Dixon, and E. R. Bosley, for appellant.

J. J C. Bach, for appellee.

BARKER J.

The plaintiff (appellant) alleges in its petition that it is a corporation, and that it owns and is in possession of a large tract of land in Breathitt county, Ky. which is described by metes and bounds, and is alleged to contain 3,600 acres; that the defendant trespassed upon its land and wrongfully and unlawfully, and with force and arms, and against its will and consent, cut down 35 valuable poplar trees, which were then standing on it, and cut these trees into saw logs, numbering 105 in all, which it hauled off and wrongfully detained from the plaintiff. The logs are alleged to have been reasonably worth the sum of $315, and the plaintiff has sustained damages in the sum of $200 for their detention. The petition contains a prayer to be placed in possession of the logs, and for damages in the sum of $200 for the alleged unlawful detention of the property. The answer places in issue all of the material allegations of the petition, and in the second paragraph sets out a tract of 100 acres of land within the boundary contained in plaintiff's petition; and this 100 acres, it alleges belongs to and is owned by one Samuel Richie, from whom it purchased all of the growing timber thereon. The answer further alleges that the logs in question were cut from the Richie tract. Plaintiff admits that it does not own the 100 acres described in the answer, and alleges that the logs were not cut therefrom, but from the plaintiff's land outside of the boundary of the Richie tract, called the "James Bradley patent." The issue was a very simple one, and turned upon the sole question as to whether the logs were cut from the Richie tract of 100 acres (Bradley patent) lying within plaintiff's boundary of 3,600 acres, or whether they were cut from plaintiff's land outside of the Richie boundary. Upon the trial of the case before a jury, after the evidence was all in, the court gave the following instructions: "(1) If the jury believe from the evidence that the logs in controversy were cut by defendant from the boundary of land described in the petition, and outside the boundary lines of the James Bradley patent, and that the plaintiff was in the possession of said land at the time they were cut, they will find for the plaintiff said logs, if to be had, and if not to be had, the value of said logs, not to exceed $315. Unless they so believe, they will find for defendant. (2) The possession of the son of Sam Richie of the 100 acres conveyed to him by James Bradley does not give possession to said Sam Richie, or his son, of any land lying outside of said 100-acre boundary." Whereupon the jury returned a verdict in favor of the defendant, and ...