Citation Numbers: 56 Ky. 496
Judges: Simpson
Filed Date: 12/8/1856
Status: Precedential
Modified Date: 7/24/2022
delivered the opinion of the court:
The appellants brought two actions, one against John Hutchinson, and the other against Joseph Hays, for entering upon their land, and cutting down and carrying away a large number of valuable timber trees. By the agreement of the parties both actions
We do not deem it necessary to decide whether or not the proof was sufficient to show that the plaintiffs were in the actual possession of the land at the time the trespass thereon was committed by the defendants ; for if actual possession had been necessary to authorize a recovery for entering upon the land and cutting down the trees, and the plaintiffs were not in the actual possession of the land, still they had a right to maintain their actions against the defendants for carrying away the timber after it was cut down. When it was cut down it became personal property, and was by legal construction in the possession of the owners, and they could maintain an action for its subsequent removal.
But an actual possession of the land by the plaintiffs, at the time of the commission of the trespass, was not necessary to enable them to maintain their actions to recover damages for the wrongful entry thereon by the defendants.
By an act to amend the Revised Statutes, title, “Inclosures and certain trespasses,” by adding an additional article, to be numbered article 3, approved March 10th, 1854, (Session Acts 1853-4, volume 1, page 167,) it was enacted “that the owner of any land in this state may maintain the appropriate ac tion to recover damages for any trespass or injury committed thereon, notwithstanding such owner may not have the actual possession of the land at the time of the commission of the trespass.”
Wherefore, the judgment is reversed, and cause remanded for a new trial and further proceedings in conformity with this opinion.