
    White v. Townsend.
    (Decided May 19, 1911.)
    Appeal from Powell Circuit Court.
    A counterclaim for damages for cutting timber cannot be asserted in an action to establish a public passway.
    JOHN D. ATKINSON, KASH & KASH and HAZELRIGG & HAZELRIGG for appellant.
    C. F. SPENCER for appellee.
   RESPONSE TO PETITION FOR REHEARING BY

CHIEF JUSTICE ITobson

Overruling petition.

The only matter that has been determined in this case is the right of appellees to use the passway in question as' a public passway. The counterclaim for the cutting of appellant’s timber could not be asserted in an action to establish a public passway, and this matter was properly disregarded by the circuit court. Appellant may, in an independent action, litigate the matter, and this action will be no bar to an action for that purpose.

Petition overruled.  