10 Ky.L.Rptr. 373
Court of Appeals of Kentucky.
September 20, 1888.
ACTION: Reversed and Remanded

Appeal from circuit court, Knox county.
Action by James T. Gibson against John A. Black to enjoin the defendant from erecting public weighing scales in front of plaintiff's hotel in Barboursville, Ky.
Plaintiff appeals from a judgment dissolving the temporary injunction that had been granted him.

Appellant instituted this action for an injunction against the erection by appellee of weighing scales on the public square of the town of Barboursville, in front of his (appellant's) lot, on which is an hotel building. In his petition he says the right to have and use the site where appellee has commenced to fix the scales, which the evidence shows was granted about 25 years ago to a former owner of the hotel lot, has been for that length of time enjoyed and used by him, and those under whom he claims, and has been and is an appurtenance of the property. In his answer appellee claims the right to erect the scales at the place mentioned in virtue of an order of the board of trustees of the town granting the privilege to one Golden, who transferred it to appellee. It is further alleged that, for the consideration of $10, Golden had purchased from one A. Y. Culton the old scales, and all his right to the site whereon they were located, and it is intended to erect the new scales, and that such purchase was made with the consent of appellant. A writing is filed as an exhibit evidencing the purchase, but A. Y. Culton made the sale, not as principal, but as the agent of his wife, a sister of appellant. She is not, however, shown to have had any other claim to the scales than the permission given by her brother to use at sufferance, and make whatever she could out of the old scales. In his reply appellant stated that, by the terms of the order of the board of trustees granting the privilege to Golden, it was made a condition that, in selecting a site for the scales, he should not "get so close to other private property as to interfere with the use of same," and that the erection and use of said scales by appellee in such close proximity to his hotel property would injure the use and business of it. Upon motion, the court struck from the reply the allegation, and also rejected all the testimony taken in support of it.

Civil Code, provides a party shall not in a reply depart from a cause of action stated by him in a previous pleading; but it is expressly stated that the pleading of equitable matter in avoidance or estoppel, in an equitable action, shall not of itself constitute such departure. In opposition to the right claimed by appellant to the original site as appurtenant to the lot on which the hotel is situated, appellee set up and relied on the order of the board of trustees as giving him the privilege claimed. It seems to us clear that appellant, under that state of case, had the right to avoid the claim of appellee by alleging and proving that the erection of the scales in front of his hotel would interfere with the use of same, and therefore be a plain violation of the condition upon which the privilege was granted to appellee, and the lower court erred in sustaining the motion to strike from the reply such matter in avoidance of the claim of appellee.

There is evidence tending to show that appellant consented to the sale of the old scales by A. Y. Culton, as agent of his wife, to Golden; but we think the evidence fails to show he ever consented to transfer or give up the site where appellee now claims the right to erect the new scales. In fact, there are circumstances developed which tend strongly to show that the order of the board of trustees, of which appellant was at that time a member, was obtained by Golden upon the implied understanding the new scales would be placed at another and different site.

The evidence shows conclusively that the erection and use of the scales by another person than the owner, in front of the hotel property of appellant, would be very annoying and injurious to the proper use of the hotel; and consequently this record shows a state of case not only justifying the restraining order of the chancellor, but absolutely denying to appellee any right whatever, under the order of the board of trustees, to put the scales at that place, against the protest of appellant. Appellee has a lot on the public square in front of which he might put his scales, and, independent of the condition contained in the order of the trustees, should not be permitted to impose upon some one else the inconvenience resulting from the use of the scales, while himself enjoying the profits. For the error of the lower court mentioned the judgment is reversed; but as the ruling of the court rendered it unnecessary for him to do so, and the appellee did not take proof upon the issue set up in the reply, the cause is remanded, with directions to hear other evidence, and determine whether the erection of the scales will interfere with the proper use of the hotel property, or injure the business conducted there.

Ky.App. 1888.
9 S.W. 379, 10 Ky.L.Rptr. 373


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