Walker v. Leslie

• Decision Date: 22 November 1890
• Parties: Walker v. Leslie.
• Court: Kentucky Court of Appeals

90 Ky. 642

Walker v. Leslie.

Court of Appeals of Kentucky.

November 22, 1890.

APPEAL FROM PIKE CIRCUIT COURT.

R. T. BURNS, W. M. CONNOLLY FOR APPELLANT.

L. T. MOORE, STEWART & STEWART FOR APPELLEE.

JAMES M. YORK ON SAME SIDE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

Appellee states in his petition substantially that he is the owner and in possession of a tract of land, and adjoining it is a tract of which appellant is owner and in possession, title to each being derived from a common vendor; that appellant is, by fraud, force and violence, attempting to change the division line and get possession of about ten acres of appellee's tract; has opened the fence on that line, hauled timber from appellee's side of it, and prevented him repairing the fence or cultivating the ten acres; and that he, appellant, is giving out in speeches he is the owner, with fraudulent intent and purpose to confuse the boundary line between them and keep appellee from enjoying and using said land. The relief prayed for is judgment perpetually enjoining appellant entering on or disturbance of the land in dispute; establishing the division line as described in the petition and claimed by appellee; quieting his title and possession, and all other proper relief.

Appellant, in his answer, denies the trespass and wrongs as alleged, and the fraudulent purpose to change or confuse the division line between the two tracts. In the second paragraph he denies the line described in the petition is the true division line, and says he, not appellee, is owner of the ten acres; and in the third paragraph he states that before commencement of this action recovery for the same alleged trespass was sued for, and the same issue here made was tried and determined in his favor by verdict of a jury and judgment of court in an action where appellee was the plaintiff and appellant defendant. And judgment in that is pleaded in bar of recovery in this action.

Appellant, at the time of filing his answer, made a motion to transfer the action to the ordinary docket, which was overruled; but a motion by appellee to strike out the material allegations of the third paragraph of the answer, which had the same effect as a general demurrer, was sustained.

It was stated by the plaintiff in his petition, as cause of the previous action, referred to in the third paragraph, that he was owner and in possession of the same ten acres now in controversy, and that the defendant thereto, unlawfully, with force and arms, entered and tore down and removed a portion of his fence, by reason of which he was deprived of use of said land, and sustained damage in the sum of one hundred dollars, for which judgment was prayed.

The answer contained simply a denial of the alleged trespass. Consequently, no issue involving either title or boundary of the land was made, or could have been legally tried and determined in that action, which was in the nature of an action of trespass quare clausum fregit. For though the plaintiff is alleged in his petition to be owner, he, having undisputed possession to a described line, might have just as effectively, if at all, maintained the action without as with title. It is true one of the instructions given by the court on trial may be reasonably interpreted as requiring the jury to determine the actual location of the division line between the two tracts, and to find for the plaintiff or defendant, according to their belief from the evidence, as to such location. But as the defendant did not in his answer deny existence of that line as described in the petition, nor set up any claim of title to or possession of the land upon which he was alleged to have unlawfully entered, he was not entitled to a verdict upon any other than the single issue made by the pleadings; nor can the judgment dismissing the action in pursuance of a simple verdict for the defendant be treated as conclusive of any other than the question whether the defendant committed the particular acts complained of in the petition.

Section 6, Civil Code, provides: "1. An action of which courts of chancery had jurisdiction before the first day of August, 1851, may be equitable; and actions of which such jurisdiction was exclusive must be equitable. 2. All other actions must be ordinary." It has, however, been held by this court that when a purely legal action is brought and prosecuted in equity, without objection, the same weight will be given, on appeal from the judgment of the chancellor, to his finding of facts, as would have been given to the finding of a jury correctly instructed. (C. & St. L. R. Co. v. Woolley...