107 Ky. 291 | Ky. Ct. App. | 1899
delivered the opinion of the court.
Appellant’s line of railroad! runs through appellee’s farm for a distance of 845 rods. He desired a division fence erected along the line between his land and appellant’s right of way. He constructed his half of the fence, and notified appellant to build the other half. This it
There was no demurrer' to the petition. An answer was filed by appellant, pleading, in substance, that when its road was built, in 1872, its vendor bought of appellee’s vendors the right of way for $290, that deeds were regularly made, and that compensation for fencing was included in the amount paid. This was denied by appellee in his reply. The case was submitted to the court by consent. No proof was offered on either side, except the deeds referred to. The court gave judgment in favor of appellee on the ground that the deeds were insufficient to show that compensation was then made for fencing. Appellant earnestly insists that this was error.
Section 179(5, Kentucky Statutes, provides:
'This act shall not apply to any land where the owner or his vendor has received compensation for fencing the same.”
The only question made in the case is whether the deeds referred to bring appellant within the operation of this section. Both the deeds read substantially as follows:
“The said parties of the first part, in consideration of $-to them paid, the receipt of which is hereby acknowledged, have sold, and do by these presents convey, unto the Owensboro & Russellville Railroad Co., all their right, title, interest and claim in and to the tract of land lying in the County of Logan, State of Kentucky, and described as follows:” (Here there is a description of a strip sixty feet in width, after which the deed closes with a warranty of title.)
There is nothing in the deeds about fencing. Each is simply a conveyance, with warranty, of a certain
No other question is made
Judgment affirmed.