Shinkle v. City of Covington

Court of Appeals of Kentucky

Shinkle v. City of Covington

13 Ky. Op. 889, 1886 Ky. LEXIS 131

DecidedJanuary 26, 1886

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This text of 13 Ky. Op. 889 (Shinkle v. City of Covington) 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.

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Shinkle v. City of Covington, 13 Ky. Op. 889, 1886 Ky. LEXIS 131 (Ky. Ct. App. 1886).

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Opinion

Opinion by

Judge Pryor:

We perceive no question of law or fact that was not considered at the original hearing. It is not necessary that the appellant should show title from the commonwealth in order to enable him to maintain this action. If his allegations are true, his entry was lawful and under a claim of right acknowledged by the city in the controversy between McNichol’s heirs. Whether for the one period or the other is immaterial. The city can not oust the appellant of his possession by enforcing fines upon him. The proceedings in the Mayor’s court are certainly valid, as they appear without the aid of extrinsic testimony; but when these facts appear and are admitted by reason of the demurrer the injury is irreparable and [890]*890the chancellor should interfere. If this claim of the appellant is valid or fictitious the facts upon issue formed will give the city the relief it is now seeking through the means of penalties enforced by the city court.

Collins & Finley, for appellant. W. K. Benton, Wm. A. Byrne, for appellee.

[See Original Case, 83 Ky. 420, 7 Ky. L. 412; cited Ludlow &c. Coal Co. v. City of Ludlow, 102 Ky. 356; Louisville & N. R. Co. v. Barrall, 25 Ky. L. 1396; Hoffman v. City of Maysville, 29 Ky. L. 1245; McGee, Judge, v. Kennedy, 131 Ky. 41; Evans v. Cook (Ky.), Ill S. W. 327.]

Petition overruled.

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Opinion by

Judge Pryor:

We perceive no question of law or fact that was not considered at the original hearing. It is not necessary that the appellant should show title from the commonwealth in order to enable him to maintain this action. If his allegations are true, his entry was lawful and under a claim of right acknowledged by the city in the controversy between McNichol’s heirs. Whether for the one period or the other is immaterial. The city can not oust the appellant of his possession by enforcing fines upon him. The proceedings in the Mayor’s court are certainly valid, as they appear without the aid of extrinsic testimony; but when these facts appear and are admitted by reason of the demurrer the injury is irreparable and [890]*890the chancellor should interfere. If this claim of the appellant is valid or fictitious the facts upon issue formed will give the city the relief it is now seeking through the means of penalties enforced by the city court.

Collins & Finley, for appellant. W. K. Benton, Wm. A. Byrne, for appellee.

[See Original Case, 83 Ky. 420, 7 Ky. L. 412; cited Ludlow &c. Coal Co. v. City of Ludlow, 102 Ky. 356; Louisville & N. R. Co. v. Barrall, 25 Ky. L. 1396; Hoffman v. City of Maysville, 29 Ky. L. 1245; McGee, Judge, v. Kennedy, 131 Ky. 41; Evans v. Cook (Ky.), Ill S. W. 327.]

Petition overruled.

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