135 Ky. 53 | Ky. Ct. App. | 1909
Opinion op the Court by
Reversing.
This action brought by appellant against appellee* raises a controversy ás to the ownership of a strip of ground in the city of Paducah. The strip of ground is of triangular shape, and begins at a point on Meyers street, extends a distance of 30 poles, and has a width of, perhaps, 30 feet at the end of the 30 poles. The trial in the. circuit court resulted in a verdict and judgment in favor of appellee. In the motion and grounds for a new trial filed by appellant in that court, it was contended that numerous errors were committed by the court to its prejudice, and it now insists that these alleged errors entitle it on this appeal to a reversal of the judgment.
One of the appellant’s contentions is that the trial court erred in permitting Sowell, appellee’s manager, to testify that Kilgore, at the time appellant’s president, saw and knew of appellee’s erecting seven years ago the boiler room of its mill on a part of the ground
Appellant also contends that the trial court erred in instructing the jury. But' one instruction was given. It is as follows, viz.:
We have reached the conclusion that the instruction contains one error. It should not have submitted to the jury the question of appellee’s claim of possession, as there was no evidence upon which to base it. It is true that appellee’s answer, after denying appellant’s title and alleging title in itself to the ground in controversy, pleaded the statute of lim
It is true appellee has for more than 15 years had the actual and adverse possession of that part of lot 24 conveyed by its deed, but, unless the ground in controversy is in fact covered by the deed, such possession as it had did not extend to or include it. If it is not embraced by the boundary of appellee’s deed, the latter by merely claiming it to the line staked by the surveyor, could have acquired no right to it as against the title of another without an inclosure or actual occupancy thereof adversely to all others for as much as 15 years.
It is admitted that appellant and appellee derived title from a common source; that by the plat recorded by the vendor, as well as the deeds to them, the ground owned by appellant is one half of lot 24, and that owned by appellee the other half of'lot 24; that each deed purports to convey the same quantity of ground, and that appellee’s deed is the elder of the two. Eliminating the question of possession from the ■case, it is manifest that the only issue that should have been submitted to the jury was as to the true location of the line separating the lots of appellant and appellee. As appellee’s deed antedates that of appellant, it goes without saying that, if the ground in controversy is a part of the lot conveyed by its deed, the jury should have found for it; but on the other hand, if it is included in the boundary contained in the deed to appellant, the verdict should have been for the latter. Looking to the evidence on this issue, we find that that of appellant, consisting in the main of the surveys shown by the three plats found
In lieu of instruction No. 1, the court upon a retrial should give the following: “The jury are instructed that it is admitted plaintiff and defendant derived title, each to its own lot, from a common source, and
As previously intimated, an instruction on the ques lion of adverse possession will not be necessary or proper, unless appellee should introduce proof showing actual occupancy, or an inclosure of the ground in controversy for the statutory period. Indeed, in the state of case here presented, if the ground in controversy is not embraced in appellee’s deed, but is included in that of appellant, the only possession that would defeat appellant’s title is such as appellee could have acquired by an inclosure of the ground, or actually occupying it for the statutory period no proof of which was made on the trial in the circuit court. Except as to the small part of it covered by appellee’s boiler house for seven years it has had no other possession of the ground in controversy that appellant has not had and exercised, and neither has claimed title to or possession of it, except upon the ground that it was embraced by its deed, and therefore the possession of each has been and is limited to the true location of the line of division between the lots. 1
The case is, we think, governed by the rule announced in that of Holmes v. Heringer, 13 S. W. 359, 913, 12 Ky. Law Rep. 22, in the opinion of which it is said: “For as both parties claim under the same
It is further contended by appellant that its motion for a judgment non obstante should have been sustained by the trial court. We decline to accept appellant’s view of that matter. The motion was bottomed upon the idea that, as the answer failed to give a particular description of the strip of ground in controversy, judgment by reason of that fact should have gone in appellant’s favor. Waiving the question of whether the objection to the answer should have been presented by a demurrer or motion to make more specific, we do not think the pleading defective, for, as amended, it claimed for appellee title to, and alleges his possession of, the whole of the ground in controversy. The petition of appellant gave a particular description of the part in controversy. The answer in effect adopts this • description and claims the whole of it as described. This was a sufficient compliance with the provisions of section 125, subsec. 2, Civ. Code Prac. If in the answer appellee had claimed only a part of the ground in dispute, then it would have been necessary for the answer to state what part of it was claimed, and “so describe such part that it may be identified. ’ ’ But as already stated,
The views we have expressed make it unnecessary to consider the refused instructions. On account of the error in the one instruction given, the judgment is reversed, and cause remanded for a new trial consistent with the opinion.