Sellards v. Zomes

68 Ky. 90, 5 Bush 90, 1868 Ky. LEXIS 232

• Court: Court of Appeals of Kentucky
• Decided: April 22, 1868
• Status: Published

Opinion

JUDGE ROBERTSON

delivered the opinion of the court:

To an action by the appellee against the appellants for forcibly taking and converting his horse, in the fall of the year 1882, they pleaded the justification of a military order by a Federal officer to impress horses for pursuing a Confederate force which had, the night before, left Boone Furnace, near which the appellant’s horse was taken; and also pleaded the appellee’s release of one of their co-actors and defendants.

Under instructions as favorable to the appellants as the facts and law would allow, the jury returned a verdict for one hundred dollars damages, and the court adjudged that amount to the appellee.

As the verdict was authorized by the evidence, only two questions remain for consideration — 1st, The legal effect of the release; and, 2d. The sufficiency of the alleged justification.

1. The liability of joint trespassers is several, and any one or all of them may be sued for the entire wrong; consequently, since our statute of 1836, authorizing several judgments, a dismission or release of one or more who are sued, cannot, per se, release the others.

2. To excuse the impressment, there must not only have been military necessity, but it must have been so imminent as not to allow delay. (Mitchell vs. Harmony, 13 Howard, 135.)

Private property cannot be taken for public use without just compensation, either in peace or in war. In war, pressing emergency may authorize seizure before making or providing for compensation; but to excuse the taking without the owner’s consent, the necessit}1- must be apparent and instant, leaving no legal and available alternative.

The jury was authorized to decide that no such necessity excused the impressment of the appellee’s horse. The Confederate force was not pursued; and, considering the relative positions and numbers of the opposing forces, it is not probable that the Federal then intended to pursue the Confederate force; and this deduction is fortified by the fact that most of the Federal force immediately turned its back on the enemy, and, crossing the Ohio river, were soon quartered at Portsmouth, Ohio. In that backward movement, the Federáis carried off the appellee’s horse, which has never,, been restored,. The strong inference is, that the horse was taken under false pretence, and for private, or some other use, which would not excuse the caption; and if so, the order to take was illegal, and did not justify the captors. (Eifort, &c., vs. Bevins, 1 Bush, 461; Jones vs. The Commonwealth, Ib., 40, and the case supra.)

Wherefore, the judgment is affirmed.