American Car & Foundry Co. v. Sellards

154 S.W. 897, 153 Ky. 103, 1913 Ky. LEXIS 781

• Court: Court of Appeals of Kentucky
• Decided: March 25, 1913
• Status: Published

Opinion

Opinion op the Court by

William Bogers Clay, Commissioner

Dismissing Appeal.

Plaintiff, B. J. Sellarás, was the owner of a tract of land on Buffalo ■ Creek, in Floyd County, Kentucky. On November 4, 1907, he sold and conveyed the land to plaintiff, Maggie Sellarás. For several years, beginning with the year 1905, the defendant, the American Car & Foundry Company, operated a splash dam on Buffalo Creek. While each owned the land a portion of it was cut and washed away, and the fencing destroyed, by the operation of the splash dam. Plaintiffs brought this action to recover damages during the time that each owned the land. B. J. Sellarás asked damages in the sum of $150. Maggie Sellarás asked damages in the sum of $290. The jury returned a verdict in favor of B. J. Sellarás in the sum of $125, and in favor of Maggie Sellarás in the sum of $150. Judgment was entered accordingly, and defendant appeals.

Though plaintiffs united in the action, each sought a recovery for the time that he or she owned the land. The interest of each was several and distinct. There was a separate recovery in favor of each. The test of jurisdiction is the amount of each recovery. The recoveries being several and distinct, they cannot be added together for the purpose of conferring jurisdiction. That being true, and the finding in favor of each plaintiff being less than $200, exclusive of interest and costs, this court is without jurisdiction to entertain the appeal. Kentucky Statutes, section 550; Oswald v. Morris, 92 Ky., 48; Fehler v. Gosnell, 99 Ky., 380.

Appeal dismissed.