October 5, 2012

Fish v. Branamon, Rockcastle, 1842

Fish v. Branamon.

COURT OF APPEALS OF KENTUCKY

41 Ky. 379; 1842 Ky. LEXIS 55; 2 B. Mon. 379

May 26, 1842, Decided

PRIOR HISTORY:  [**1]  ERROR TO THE ROCKCASTLE CIRCUIT. 

DISPOSITION: Reversed and remanded for a new trial. 

COUNSEL: E. Smith for plaintiff. 

JUDGES: CHIEF JUSTICE ROBERTSON. 

OPINION BY: ROBERTSON 

OPINION

 [*379]  CHIEF JUSTICE ROBERTSON delivered the Opinion of the Court.

As the tract of land on which the plaintiff in error has resided for many years, and that purchased by him in 1838, are co-terminous, the presumption of law as well as of fact is, that the purchase of the latter tract was intended, and therefore operated as an extension of the homestead co-extensively with the limits of both parcels  [*380] united into one entire possession. There is nothing in this case to repel that presumption.

Then the building of the cabin by the defendant in error, since 1838, within the limits of the tract purchased in that year by the plaintiff in error, was an intrusion on the constructive possession in fact of the latter; and consequently, as the defendant in error proved no derivative or other title in himself paramount to that of the plaintiff in error to any portion of that tract, his possession, by the building and locking up of the cabin, if constructively continued at all, must, according to the only legal deduction from [**2]  the facts as exhibited to this Court, be deemed to have been restricted to his actual enclosure. He could not, therefore, maintain this action of trespass qua. clau. fregit against the plaintiff in error for entering and cutting timber on land in his own actual possession, and which, therefore, he appears to have had a legal right to enter on and use as he did.

Consequently, as the verdict and instructions by the Circuit Judge, on the trial, are inconsistent with the foregoing conclusion of law from the facts, the judgment for the defendant in error, on that verdict, must be reversed and the cause remanded for a new trial.

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