Vincent v. Mustain

Court of Appeals of Kentucky

Vincent v. Mustain

220 S.W. 1070, 187 Ky. 843, 1920 Ky. LEXIS 217

DecidedMay 4, 1920

StatusPublished

This text of 220 S.W. 1070 (Vincent v. Mustain) 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

Vincent v. Mustain, 220 S.W. 1070, 187 Ky. 843, 1920 Ky. LEXIS 217 (Ky. Ct. App. 1920).

Pincite

Opinion

Opinion op the Court by

Judge Hurt

Beversing.

To the petition in this action the defendant interposed a general demurrer which was sustained and an amended petition filed. The demurrer was insisted upon to the petition as amended,' and again sustained. The [844]*844plaintiff declining to further amend, the petition as amended was dismissed and. the restraining order, obtained by the plaintiff, dissolved, and from the judgment the plaintiff has appealed.

The petition averred that the plaintiff and defendant owned adjoining lands in Edmonson county and that by agreement and acquiescence, there had been a “partnership” fence which separated the inclosed lands of the one from the other for many years, and the cause of action alleged was the threatened removal of the fence by the defendant, which plaintiff alleged would result in irreparable damage to him.

The allegations are meager and indefinite and subject to a motion to require a more definite statement of the facts, but, it seems, that upon the face of the petition a cause of action is stated. It will be observed that the fence separates the inclosed lands of the one from the other and is & fence which was erected by agreement of the parties and acquiesced in for a long time by them, and that it is jointly owned by thé parties in its entirety, and hence does not appear to be one of those division fences ordinarily in use described and provided for by sections 1783 to 1787, inclusive of chapter 48, Kentucky Statutes, and hence neither party can remove the entire fence, and expose the lands of the other to depredations of stock, as it is alleged that the defendant is proposing to do, without the consent of the other, or without showing some right to do so, arising from a reason, which does not appear from the petition.

The judgment is therefore reversed, and cause remanded, with directions to set aside the judgment, to overrule the demurrer, and for other proper proceedings.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion op the Court by

Judge Hurt

Beversing.

To the petition in this action the defendant interposed a general demurrer which was sustained and an amended petition filed. The demurrer was insisted upon to the petition as amended,' and again sustained. The [844]*844plaintiff declining to further amend, the petition as amended was dismissed and. the restraining order, obtained by the plaintiff, dissolved, and from the judgment the plaintiff has appealed.

The petition averred that the plaintiff and defendant owned adjoining lands in Edmonson county and that by agreement and acquiescence, there had been a “partnership” fence which separated the inclosed lands of the one from the other for many years, and the cause of action alleged was the threatened removal of the fence by the defendant, which plaintiff alleged would result in irreparable damage to him.

The allegations are meager and indefinite and subject to a motion to require a more definite statement of the facts, but, it seems, that upon the face of the petition a cause of action is stated. It will be observed that the fence separates the inclosed lands of the one from the other and is & fence which was erected by agreement of the parties and acquiesced in for a long time by them, and that it is jointly owned by thé parties in its entirety, and hence does not appear to be one of those division fences ordinarily in use described and provided for by sections 1783 to 1787, inclusive of chapter 48, Kentucky Statutes, and hence neither party can remove the entire fence, and expose the lands of the other to depredations of stock, as it is alleged that the defendant is proposing to do, without the consent of the other, or without showing some right to do so, arising from a reason, which does not appear from the petition.

The judgment is therefore reversed, and cause remanded, with directions to set aside the judgment, to overrule the demurrer, and for other proper proceedings.

Cite This Page — Counsel Stack

Bluebook (online)

220 S.W. 1070, 187 Ky. 843, 1920 Ky. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vincent-v-mustain-kyctapp-1920.