October 5, 2012

Haley v. Palmer, Rockcastle, 1840

Haley vs Palmer.

COURT OF APPEALS OF KENTUCKY

39 Ky. 320; 1840 Ky. LEXIS 21; 9 Dana 320

May 2, 1840, Decided

PRIOR HISTORY:  [**1]  FROM THE CIRCUIT COURT FOR ROCKCASTLE COUNTY. 

DISPOSITION: Reversed and remanded for a new trial.

COUNSEL: Mr. Turner and Mr. Breck for plaintiff: Mr. Owsley for defendant. 

JUDGES: Judge Marshall. 

OPINION BY: Marshall 

OPINION

 [*320]  Judge Marshall delivered the Opinion of the Court.

HALEY having purchased a piece of land in the woods--built the walls of a log cabin upon it, and covered it in, except one course of boards, intending to remove to it as soon as he could make the necessary preparations; he also cut some rail timber, and cut some logs for another house, and being called away for the purpose of gathering fodder, was absent from the premises about two weeks, having left his tools in the unfinished house. During this absence, Palmer, who had rented the premises from Smith, came there for the purpose of commencing an improvement, and finding the cabin (which he truly supposed had been built by Haley,) finished the covering of it, cut a door way, hung a door with a lock, split some rails, and enclosed half an acre, including the house, which he locked up, leaving in it a broad axe, an old coat, and a broken skillet, and also the broad axe of Haley. When Haley returned at the end of two weeks,  [**2]  finding things in this condition, and no person on the premises, he drew the staple of the lock, entered the  [*321]  house and has occupied it ever since. Within two years after this re-entry of Haley, Palmer sued out a warrant of forcible entry and detainer against him, and upon the trial of the traverse in the Circuit Court, the jury, under the instructions of the Court, found a verdict for Palmer; on which a judgment of restitution was rendered, not-withstanding Haley's motion for a new trial.

Upon these facts, we think it very clear, that unless it can be inferred--which we think it cannot be--that Haley abandoned his possession of the premises, his possession continued notwithstanding his temporary absence, and was unbroken by the acts of Palmer, except so far as it may be considered as being interrupted by mere acts of trespass. However clearly the acts of Palmer may have indicated an intention to occupy and enjoy the premises at some future time, neither his working upon the house which Haley had built, nor his enclosing it with a fence, nor his locking the door, amounted to an actual ouster of Haley's possession. And if his placing and leaving in the house a few articles [**3]  of personal property, could have the effect of giving or continuing a possession, the like effect should be allowed to the similar acts of Haley, whose tools were in the house when Palmer first saw it, and remained in it until Haley returned. So that upon the most favorable view of Palmer's case, it is subject to the application of the principle that, if two are in possession, the possession shall be taken to be in him who has the better right. And upon this principle, the possession was in Haley, and he did not subject himself to be turned out by writ of forcible entry, when he entered peaceably into his own house occupied by his own goods.

We are not, however, to be understood as basing our conclusion in this case, upon the mere circumstance, that Haley's tools remained in the house. We think Palmer acquired no possession; none at least, which continued while he himself was absent from the premises. And that nothing less than an actual, beneficial use or enjoyment of the premises on his part, or an actual expulsion of Haley, could have changed the possession, so as to make Haley guilty of a forcible entry by entering upon  [*322]  the premises peaceably, in the absence of Palmer,  [**4]  and all other persons claiming to be in possession.

The instruction of the Court and the verdict of the jury having been entirely inconsistent with this opinion, a new trial should have been granted.

Wherefore, the judgment is reversed, and the cause remanded for a new trial, on principles not inconsistent with this opinion.

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