McNay v. Harris

Court of Appeals of Kentucky

McNay v. Harris

5 Ky. Op. 104, 1872 Ky. LEXIS 223

DecidedJanuary 15, 1872

StatusPublished

This text of 5 Ky. Op. 104 (McNay v. Harris) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNay v. Harris, 5 Ky. Op. 104, 1872 Ky. LEXIS 223 (Ky. Ct. App. 1872).

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Opinion

Opinion by

Judge Lindsay:

This being an action for trespass to real property, actual possession, at the time of the entry of appellant, was sufficient to enable appellee to maintain his suit. It was not necessary that he should show a perfect chain of title back to the commonwealth, nor an actual adverse holding for the term of fifteen years preceding the alleged trespass. For these reasons the instructions given at the instance of the appellee, all of which make his right to recover, depend upon whether the land is covered by the deeds under which he claims title, or an actual adverse possession for fifteen years, are less favorable to him than they should have been.

Riley, Menzies & Furber, for appellant. Ducker, Hawkins, Boden, for appellee.

The testimony shows that ¡there is an ancient marked line running from the -corners B and C as laid1 down on the plat made out by the surveyor Rogers. There is evidence conducing to show that appellee held to this line and that within a short time before the commission of this alleged trespass, McNay recognized the fact that his possession extended to this line.

It is true that there is some contrariety of evidence on the question of possession, but we can not say that the preponderance is against the finding of the jury.

The instructions -given on the motion of appellant are certainly as favorable as the law of the case would warrant.

The judgment of the circuit count must be affirmed. -

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Opinion by

Judge Lindsay:

This being an action for trespass to real property, actual possession, at the time of the entry of appellant, was sufficient to enable appellee to maintain his suit. It was not necessary that he should show a perfect chain of title back to the commonwealth, nor an actual adverse holding for the term of fifteen years preceding the alleged trespass. For these reasons the instructions given at the instance of the appellee, all of which make his right to recover, depend upon whether the land is covered by the deeds under which he claims title, or an actual adverse possession for fifteen years, are less favorable to him than they should have been.

Riley, Menzies & Furber, for appellant. Ducker, Hawkins, Boden, for appellee.

The testimony shows that ¡there is an ancient marked line running from the -corners B and C as laid1 down on the plat made out by the surveyor Rogers. There is evidence conducing to show that appellee held to this line and that within a short time before the commission of this alleged trespass, McNay recognized the fact that his possession extended to this line.

It is true that there is some contrariety of evidence on the question of possession, but we can not say that the preponderance is against the finding of the jury.

The instructions -given on the motion of appellant are certainly as favorable as the law of the case would warrant.

The judgment of the circuit count must be affirmed. -

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5 Ky. Op. 104, 1872 Ky. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnay-v-harris-kyctapp-1872.