117 Ky. 195 | Ky. Ct. App. | 1903
Opinion of the court by
Affirming.
Appellant and appellee were the owners of adjoining farms, and for several years a controversy has existed between them as to the ownership of a strip of land about ten by twelve feet wide, and seventy-three poles long. On August 2, 1898, the appellee, Vicroy, brought an action against the appellant, alleging in three separate paragraphs that appellant had on three separate occasions torn dowin the division fence which he had erected upon his own land between their respective farms for the protection of his stock. The appellant filed an answer to each paragraph of the petition, denying that appellee was the owner or in possession of the land on which the alleged trespass was committed. In a second paragraph he alleged that he was the owner and in possession of the land at the places at which the alleged trespasses were committed. On the same day that appellee brought his action of trespass, he brought this action in equity, reciting the same acts of trespass, and alleged that, unless the defendant was restrained, he would continue to repeat his trespasses upon the land and against his rights and property, and would inflict other wrongs upon him, to his great and. irreparable injury, and prayed that appellant should be restrained from removing
The only question upon this appeal is the sufficiency of appellant’s rejoinder, as a defense to the plea of res adjudicata. Appellant insists that as the appellee in 'his common-law suit sought to recover upon several distinct causes of action, on any of which the jury might have found in his favor, that the general judgment rendered pursuant thereto was not an estoppel against him in a subsequent action, unless it be shown by extrinsic evidence that each separate cause of action was decided in his favor by the jury. And in support of this contention he refers to several authorities — among others, to the case of Stillwell v. Duncan, 23 R., 261, 62 S. W., 898. In that case Stillwell brought a suit for trespass, alleging that he was the owner and in possession at the time of Duncan’s
Judgment affirmed.