Richfield Coal Co. v. Bennett
221 S.W.2d 91
June 3, 1949.
ACTION: Judgment reversed.

Appeal from Circuit Court, Bell County; J. S. Forester, Judge.
Action in ejectment by the Richfield Coal Company against Hamlin Bennett and others.
From a judgment dismissing the petition as to certain of the defendants, the plaintiff appeals.

SIMS, Chief Justice.
This action in ejectment was brought by appellant, Richfield Coal Company, in the Bell Circuit Court against 30 defendants whom the petition averred were trespassing upon the lands of the Company lying partly in Bell County and partly in Knox County. The description of the land is not set out in the petition but is contained in an exhibit attached thereto and describes one large body of land. A special plea to the jurisdiction was filed by 28 of the defendants which set out they were citizens and residents of Knox County and their lands lie in that county and they were asserting no claim to any land situated in Bell County. This plea was sustained and the court held it had no jurisdiction over these defendants, whose lands were situated in Konx County and who made no claims to lands in Bell County, and dismissed the petition as to them. The Company appeals.

Appellees insist that as they all reside in Knox County and as the lands to which they claim title are located in that county, the Bell Circuit Court has no jurisdiction of them despite the fact that the land in controversy may be contiguous to other lands owned by the Company which are situated in Bell County. Their argument is that the Company may not acquire a tract in Knox County contiguous to land it owns in Bell County and by incorporating the two tracts into one boundary give the Bell Circuit Court jurisdiction over the land situated in Knox County.

Appellees aver in their plea to the jurisdiction that the tract of 152 1/2 acres located in Knox County, from which the lots are taken in which they claim title, has never been merged with or incorporated in any larger boundary which extends into Bell County. They insist this averment must be taken as true since the Company did not answer their plea to the jurisdiction. However, it was not necessary for the Company to answer the plea to the jurisdiction because the petition averred the Company owned a boundary of land situated partly in Bell and partly in Knox Counties upon which defendants were trespassing and asserting title, and the description attached to the Company's petition was that of one large boundary of land. Thus an issue was formed.

For the reasons given the judgment is reversed for proceedings consistent with this opinion.

221 S.W.2d 91, 310 Ky. 552

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