134 Ky. 257 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
The appellant, Peter Nachand, by the institution of this action in the court below, attempted to recover of the appellee, Cumberland Telephone & Telegraph Company, $1,000 damages for the alleged unlawful trimming by it of certain trees situated on appellant’s land, whereby they were, as claimed, greatly injured. Appellee filed an answer of two paragraphs, the first containing a traverse, and the second a plea of a written grant from appellant, authorizing appellee to erect and maintain its poles and lines upon and over his lands and do such necessary trimming of the branches of the trees thereon as might prevent them from interfering with the use of the lines in the telephone business. The writing referred to reads as follows : “In consideration of the sum of ($5.00) five dollars, I, Peter Nachand, do hereby grant to the Cumberland Telephone & Telegraph Company, Incorporated, its successors and assigns, the right to erect, maintain and operate a line of poles and wires and to do the necessary trimming of trees to clean wires eighteen (18) inches on and along my property in Jefferson county, state of Kentucky, and on road between Lakeland, Kentucky, and St. Mathews. Dated at St. Mathews, this 16th day of August, 1900. Peter Nachand. Witness, John Lynch, Jr.” The second paragraph of the answer contained the further averments that appellee in erecting and maintaining its poles and lines upon appellant’s land did only suck trimming of the trees along the same as was pre
It is insisted for appellant that the striking out of a part of his reply, and the giving of the peremptory instruction was error. We do not think this contention sound. As to the first, it is only necessary to say that the defense of appellee to appellant’s claim for damages was based upon a denial of the damages alleged and a license in writing to do the trimming of the trees complained of, which was complete in itself, as it contained the names of the parties, a sufficient description of appellant’s lands over which the poles
We are further of opinion that the trial court did not err in giving the peremptory instruction at the conclusion of appellant’s evidence. As the writing contained the contract between the parties, their rights had to be determined according to its provisions. The only issues under the contract and pleadings were: (1) Was the trimming of appellant’s trees by appellee unnecessary? (2) If unnecessary, to what extent was appellant damaged by such trimming? Appellant proved, by several witnesses besides himself, injury to the trees, but he wholly failed to prove that the trees trimmed were not, before the trimming, an obstruction to appellee’s telephone lines, or that appellee trimmed them more than was necessary to prevent interference with its lines. Indeed, none of appellant’s witnesses were asked, and not one of them stated, whether the trimming of the trees by appellee was necessary or unnecessary. Under the license from appellant appellee had the right to trim the trees upon former’s land to the extent necessary to clean its wires 18 inches; and, as it was not made to appear from appellant’s evidence that it did any more trimming of the trees than was necessary to clean its wires 18 inches, the appellee was, upon apappellant’s proof, entitled to a verdict and judgment, although such trimming as he did resulted in injury to the trees. Therefore the peremptory instruction directing the jury to return a verdict in its favor was proper.
No cause being shown for disturbing the verdict, the judgment is affirmed.