25 S.W.2d 57 | Ky. Ct. App. | 1930
Affirming.
This is a controversy between adjoining landowners concerning the ownership of a small triangular piece of land. It arises in this way: Louisa Howind instituted an action against Joseph Scheben to recover damages for the destruction of eleven trees that stood on the ground in controversy. Three defenses were interposed by the defendant, but only one of them, that of adverse possession, was submitted to the jury. The jury found a verdict for the defendant and the plaintiff was denied a new trial. She has prosecuted this appeal, insisting that there was no proof of adverse possession, in the absence of which it was error to submit that issue to the jury. It is admitted that appellant's title papers cover the land in dispute, and that the description in the deed to appellee does not include it. But those facts alone are not conclusive. Cornillaud v. Fisher,
The testimony shows that the fence now maintained has been there for more than 15 years, and that it replaced a rail fence maintained on substantially the same location for forty years. The transfer of possession of a strip of land occupied by the grantor, although without title, which is inclosed with and used as part of the land described in the deed, is not affected by its omission from the description in the deed. In such cases the possession of the grantor and that of the grantee is continuous, and there is such privity of contract between them that the period of possession by each must be added in ascertaining the total period of adverse possession. Wishart v. McKnight,
The judgment is affirmed.
