Bellew v. Angling

9 Ky. Op. 349, 1877 Ky. LEXIS 203

• Court: Court of Appeals of Kentucky
• Decided: February 15, 1877
• Status: Published

Opinion

Opinion by

Judge Pryor:

The answer in this case presents no defense to the action, and the appellant was entitled to a judgment notwithstanding the verdict. There is no denial in either the original nor amended answer of the entry by the appellee on the possession of the appellant. The statement that the appellee was in possession of the land was no denial that the appellant was in possession also. If intended to be a plea of liberum tenementum it maj'- be doubted whether such a plea is good under the Code. If the land were in the defendant’s possession, it is easy to deny that the defendant entered upon the land of the plaintiff in his, the plaintiff’s, possession as alleged. The defendant admits the cutting of the timber and digging the ore, but says it was his own land and in his possession, and not owned by the plaintiff or in his possession at the time the trespass is said to hare been committed. The burden of proof is on the plaintiff.

W. C. Ireland, for appellant. James E. Roe, E. F. Dulin, for appellee.

Judgment reversed and cause remanded with directions to award a new trial and for further proceedings consistent with this opinion.