Walden v. Conn

• Decision Date: 02 October 1886
• Citation: 84 Ky. 312,1 S.W. 537
• Parties: WALDEN v. CONN.
• Court: Kentucky Court of Appeals

1 S.W. 537

84 Ky. 312

WALDEN v. CONN.

Court of Appeals of Kentucky.

October 2, 1886

Appeal from Jefferson common pleas court.

Emmet Field, for appellant, James Walden. Abbott & Rutledge, for appellee, John D. Conn.

BENNETT J.

The appellant, James Walden, filed his petition in the Jefferson common pleas court against the appellee, John D. Conn, in which he alleged, in substance, that, being the owner and in possession of one acre of land lying in Jefferson county giving a particular description of the land, he, in March 1884, rented the same to Smith for the term of one year, and placed him in the possession thereof; that on or about the first day of April, 1884, the appellee forcibly, unlawfully and without plaintiff's consent, and without the consent of plaintiff's tenant, Smith, entered upon said land, and built a fence thereon, and deprived plaintiff and his said tenant of the use and possession of said land. Plaintiff says he has been damaged by the said unlawful acts of defendant in the sum of $500. He prayed judgment for that sum. The appellee filed a demurrer to the petition, which was overruled by the court. He then, by answer, fully denied the allegations of the petition.

The trial of the cause resulted in a verdict by the jury, and judgment for the appellee; the court having peremptorily instructed the jury to find for the appellee.

If the appellant's petition sets out a cause of action, then the court's instruction was wrong; but if the petition sets out no cause of action, then the court's instruction was right. While the question to be settled here has never heretofore been before this court, yet it is of easy solution. It is a well-settled rule that, when a contract of tenancy is consummated by the entry of the tenant, the exclusive right of possession is thereby instantly changed from the landlord to the tenant during his term, and for any injury to that possession the right of action is exclusively in him. This is so whether he retains the possession or not because it is his exclusive right of possession that gives him the exclusive right of action for any injury done to it either by the landlord himself or a stranger during the existence of that exclusive right. During the continuance of the tenant's right of possession, the landlord has no right of action for any injury done to it by a stranger, or the tenant himself. His right is confined to the protection of his reversionary interest merely. For any injury to his reversionary interest, either by his tenant or a stranger, he may have any appropriate action of...