142 Ky. 88 | Ky. Ct. App. | 1911
Opinion op the Court by
Reversing.
Appellants, in their petition and amended petitions, asserted that they were owners and in possession of a certain described house and lot in Covington, Kentucky; that they became the owners thereof by deed of date, November, 1902; that afterwards, in 1908, appellee placed a large trip hammer in its manufacturing establishment at the rear of this house and lot and about seventy-five feet therefrom; that appellee, by the use of this trip hammer, caused the walls of his house to vibrate and crack; that the windows and doors of the house had been damaged so that they would not work properly; that their cistern walls had cracked and let the water leak out; that the dropping of the hammer caused the tableware in the house to shake and drop from its support. Appellants further alleged that the use of the hammer annoyed them at all times, and especially in sickness; that each of them had one or two spells of sickness; that Henry Brink had the rheumatism for several months and the use of the hammer gave him great pain, and had rendered their house almost unhabitable. Appellee answered denying all the allegations, except that of possession of the house.
“The plaintiffs produced on the trial the deed which had been made for the property. They did not show title from the Commonwealth and this was unnecessary. They were in possession; if the defendant had wrongfully polluted their spring they may recover such damages as they have sustained without showing a title to the land. The defendant set up no claim to the spring and the person in possession may recover for a trespass or tort against a wrongdoer without showing title.”
Many other cases to the same effect might be cited, but the above cases make it plain that appellants were entitled to maintain their action, although they did not show title from the Commonwealth, nor fifteen years open, notorious, adverse possession.
For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.