Walling v. Eggers

• Decision Date: 28 January 1904
• Citation: 78 S.W. 428
• Parties: WALLING v. EGGERS et al.
• Court: Kentucky Court of Appeals

78 S.W. 428

WALLING v. EGGERS et al.

Court of Appeals of Kentucky.

January 28, 1904

Appeal from Circuit Court, Jefferson County, Common Pleas Division.

"Not to be officially reported."

Action by Willoughby Walling against Herman Eggers and others. From a judgment for defendants, plaintiff appeals. Reversed.

E. L McDonald, for appellant.

Lieber & Lincoln, for appellees.

O'REAR J.

Appellant sued appellees, Eggers and the Shelby Street Market Company to recover the possession of a strip of land 4 feet 2 inches wide by about 94 feet long, and to have adjudged his right to use a passway over the north side of Eggers' lot, running at right angles from the north end of the strip last mentioned to Shelby street, in Louisville. This will illustrate the situation of the property:

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In the petition appellant claimed that he was the owner of two lots which together made one connected body of land fronting 22 feet 2 inches on Market street, in Louisville, Ky. and extending south that width 110 feet, and extending further south 94 feet, 4 feet 2 inches wide, to a 20-foot alley; that the appellees had wrongfully taken possession of and obstructed certain parts of the last-named strip; that appellant also owned, as an appurtenant to his lot, an easement of the use of a 4-foot alleyway running from the back of the 18 feet of lot described, east to Shelby street. Appellees filed a joint answer. They do not deny appellant's title, except as to the easement; but they claim that they and their vendors have respectively been in the adverse, continuous possession of the strip 4 feet and 2 inches wide and 94 feet long from the 20-foot alley north for more than 15 years, claiming it as their own. The reply denied the continued adverse possession of appellees for 15 years before the bringing of the suit. The effect of these pleadings was to put in issue, first, appellant's claim to the easement over the Eggers lot east to Shelby street; second, the claim of appellees that by an adverse possession and user of 15 years of the strip 94 feet by 4 feet 2 inches they had acquired the title to it. On the first issue, plaintiff had the burden of the proof; on the second, defendants had the burden; but on the whole case the burden was on the defendants.

Section 526, Civ. Code, is: "The burden of proof in the whole case lies on the party who would be defeated if no evidence were given on either side." Although plaintiff had the burden as to the easement claimed, and notwithstanding, if no evidence had been introduced by either party, he would have lost as to it, yet, under the state of the pleadings, he would have been entitled to a judgment against appellees (defendants) upon the other issue....