Kyte v. Chessmore

Citations

• 106 Kan. 394
• 188 P. 251
• 1920 Kan. LEXIS 527

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice — Burden of Proof — Opening and Closing A rgument to Jury. Although one party may be required to introduce the first evidence, because of formal proof required of him under the pleadings, it is proper to allow the other to open and close the argument to the jury where the burden of proof on the controverted issues is found to rest upon him.</p> <p>2. Same — Deposition Filed Too Late — Exceptions Thereto•. By virtue of the statute requiring a deposition to be filed at least one day before the trial is begun, it is proper to reject a deposition filed during the trial, even though the objection to it is made orally, notwithstanding the provision that exceptions to depositions shall be in writing.</p> <p>3. Boundary — Between Adjoining Tracts of Land — Evidence — Line Fence — Adverse Possession. It is held that no reversible error was committed in allowing a witness to testify that a fence had been recognized and claimed as a boundary by the occupants of adjoining tracts, notwithstanding his statements partook somewhat of the nature of conclusions.</p> <p>4. Same. The evidence is held to have warranted the submission to the jury of the questions whether an agreement had been made establishing a boundary, and whether possession held up to a fence had been adverse.</p> <p>5. Same. Objections to instructions are held not to be tenable.</p> <p>6. Same — Instructions. An instruction is held to point out sufficiently for the purposes of the case the distinction between a claim of ownership up to a fence on the theory that it marks the true boundary, and such a claim made irrespective of that consideration.</p> <p>7. Same — Evidence—New Trial. The evidence with regard to the boundary between two of the quarter sections involved is held to have differed sufficiently from that regarding two others to justify the granting of a new trial in the one respect and denying it in the other.</p> <p>8. Same — Adverse Possession. The fact that t