Sellars v. Sutton

Decided December 22, 1868

Court of Appeals of Kentucky · decided 1868-12-22

<p>Instructions — Adverse'Possession—Conflict of Proof is Question for Jury.</p> <p>Where the proof does not clearly show whether the possession of a plaintiff was as joint tenant and therefore not adverse in law, or was .in severalty, and therefore apparently adverse in both Jaw and fact, it is error for the Court to exclude, by an instruction, this question from the consideration of the jury.</p>

Decided 1868-12-22

¶1Opinion oe the Court by

Judge Bobertson:

¶2No platt being exhibited there is much difficulty in applying the testimony as to the possessory claim of the appellant Sellars. Whether his possession was as joint tenant, and therefore not adverse in law, or was in severalty and therefore apparently adverse in both law and fact, the record does not clearly show. The jury ought to have been permitted to decide that question.

¶3On the facts appearing in the record the circuit court should not assume that Sellar’s possession was not in law, as well as in fact, adverse for 15, or even 20 years. And therefore there is apparent error in the instruction excluding that question from the consideration of the jury.

¶4Oonsequently for this only apparent error, the judgment is reversed and the cause remanded for a new trial.