to allow it to be executed here, and the motion to dismiss the appeal must prevail.

It did not, however, appear in either of these cases that the failure to execute the bond in the lower court on the day the judgment was rendered was due to the action of the clerk in absenting himself from his office and thereby preventing the execution of the bond. It was not made to appear in either of those cases that there was any good reason or indeed any reason why the bond was not executed on the day the judgment was rendered, and we may assume that failure to execute it was due to oversight or neglect on the part of the contestant. But in this case it is made to appear that the contestants offered to execute the bonds on the day the judgment was rendered, but were denied the right to do so by the action of the clerk in purposely absenting himself from his office, which was in effect the same as if he had deliberately refused to take the tendered bonds.

The question now is, can the clerk by deliberately absenting himself from his office, or by closing his office, or by concealing himself, or by refusing to take the bonds, deprive the contestants of their right to take appeals? If this statute should be so strictly construed as that this court would not have jurisdiction under any conditions or under any circumstances unless the bond was executed on the day the judgment was rendered, it can readily be seen that in many cases the contestant, without any fault or neglect on his part, and although he may have made every reasonable effort to execute the bond on the day the judgment was rendered, would be denied the right of appeal by the conduct of the clerk, or by some other condition that could not be anticipated or provided against.

But we do not think the statute should be so strictly and harshly construed. Its purpose was to hasten the procedure in these cases and not to deprive the contestant of the right to appeal for the failure to execute a bond on the day of the judgment when by circumstances beyond his control he was prevented from executing it on that day.

In Powell v. Horn, 159 Ky. 532, we had before us a question involving the right to file a pleading in a contested election case within the time allowed by the statute, which specifically fixes the time in which pleadings must be filed in this class of cases. In holding that strict compliance with the statute was not indispensable in all

cases, and that if sufficient reasons were shown why a pleading not filed within the time provided by the statute, but very soon thereafter, should be permitted to be filed, it was said:

"When an answer or reply is offered to be filed after the statutory period has expired, it should be accompanied by affidavits or other proof showing good reasons why the pleading was not filed in proper time, for unless a good excuse is shown, the statute is peremptory and must be complied with. If, however, the answer or reply is filed very soon after it is due, and it affirmatively appears that a good excuse for the delay existed, arising out of unusual or extraordinary conditions appearing in the record as in this case, or due to accident or surprise which ordinary prudence could not have guarded against, or resulting from unavoidable casualty or misfortune, and also that the substantial rights of the adverse party were not prejudiced by the delay, we think the matter of allowing or refusing to permit the pleading to be filed is within the sound discretion of the trial court. But nothing short of an excuse resting on one of these grounds will be available or deemed sufficient to avoid the statute."

In Creech v. Brock, 159 Ky. 739, it was held that where sufficient reason was shown for the delay this court might extend the time of filing a transcript in an election contest case, although the statute provides that the record must be filed within a specified time, saying:

"When from the size of the record or some misfortune or casualty it is utterly impossible to obtain and file a transcript within thirty days, justice would be defeated if no extension of the time could be allowed. The purpose of the statute is not to defeat justice, but to secure a speedy determination of the case. It provides for a judicial decision of the controversy, and the judicial proceeding must be subject to the control of the court, in the absence of something in the statute denying this power. If we held otherwise the purpose of the statute in allowing an appeal to this court would be defeated in all cases where it was for any cause impracticable to file the transcript within thirty days. We, therefore, conclude that the court may for sufficient cause extend the time for filing the transcript.

The statutory requirement prescribing the time when the pleadings and transcript shall be filed is as mandatory as the requirement when the bond shall be exe

cuted, and there is no good reason why the rule announced in these cases should not be applied here. No litigant should be denied the right to prosecute an appeal on account of his failure to execute a bond within the time allowed when this failure is due to casualty or misfortune or circumstances beyond his control, and the delay will not prejudice the substantial rights of his adversary. Com. v. Weissinger, Judge, 143 Ky. 368; Chicago Life Ins. Co. v. Robertson, 147 Ky. 61.

We, therefore, hold that when it is made to satisfactorily appear that the contestant was prevented from executing the bond on the day the judgment was rendered by unavoidable casualty or misfortune, or by accident or surprise which ordinary prudence could not have guarded against, or by circumstances beyond his control, he may execute the bond on the day following and it will have the same effect as if executed on the day the judgment was rendered. But the application of this rule to the facts of this case does not help the appellants, because they did not on the following day or indeed at all thereafter execute or attempt to execute before the clerk the supersedeas bonds.

It results from the foregoing views that the judgment of the court in dismissing the contest proceedings was correct and that the appeals must be dismissed for failure to execute the required bonds. Wherefore, the appeals are dismissed.

1.

Davidson v. Nantz.

(Decided October 9, 1917.)

Appeal from Jackson Circuit Court.

Highways-Passways-Right to by Prescription.-The grant of a right of passway by prescription will be presumed from an uninterrupted, unexplained and adverse use of such a nature as to indicate a claim of right for fifteen years or more.

2. Highways Passways - Difference Between Prescriptive Right Through Unenclosed Woods and Enclosed, Cultivated Land.-There is a marked difference between the right of the public claiming a passway when the travel has been for many years through open, uncultivated woodland and where it has been through enclosed, cultivated land; and it requires much stronger evidence to establish a right by prescription to a passway through open, uncultivated

woods than it does to establish such right through enclosed, cultivated land.

W. E. BEGLEY and J. J. DAVIS for appellant.

C. P. MOORE, L. C. LITTLE and H. J. JOHNSON for appellee. OPINION OF THE COURT BY JUDGE CARROLL-Affirming. This is à passway suit brought by the appellant, Davidson, in the court below against the appellee, Nantz, seeking by a mandatory injunction to compel Nantz to remove obstructions placed by him in the passway in controversy. The lower court dismissed the petition, and Davidson appeals.

The passway in dispute is about three-fourths of a mile long and runs from the Annville and Grayhawk public road on the west to the Mildred public road on the east, and the greater part of the way through land now owned by Nantz. The residence of Davidson is situated on the west end of this passway and about two hundred yards from the Annville and Grayhawk public road, to which he has unlimited and undisturbed access. It also appears that the Annville and Grayhawk road and the Mildred road intersect each other a short distance north of the passway in dispute and also at a point south of this passway. So that Davidson by going from his residence to the Annville and Grayhawk public road could, if he desired to reach any point on the Mildred road, get there by going either north or south on the Annville and Grayhawk road to the point at which the Mildred road and the Annville and Grayhawk road intersect each other, and thence on the Mildred road to the desired place. But if he desired to go to a point on the Mildred road near the place where it is intersected by the passway in dispute, it would be nearer and more convenient for him to use the passway.

Davidson has lived where he now resides since 1893 and claims that he and others have been using this passway without interruption since that time. And, further, that it had been used for many years before that by other people in the neighborhood; that it was so used without objection or obstruction until Nantz, just before this suit was brought, put some trees and a fence across it. He said: "When I first became acquainted with it, it was just a path. People traveled it by horseback and on foot. It is now about in the same place it was then, except for several changes made to avoid mudholes."

He said that these changes were made at different places and at different times by the persons who traveled the road; that the road ran a part of the way on the end next to his residence between the lands of himself and Nantz. and the remainder of the way through the land of Nantz; that two or three gates had been put across the pathway by Nantz or his vendor some years before it was obstructed, but it does not appear that any objection was made to the erection of these gates; that he had frequently used the passway ever since he had lived in that neighborhood, both in wagons and on horseback, in going to and from his house and church and the mill on the Mildred road; that he had never asked any permission to use it, nor did any person ever object to his using it; that other persons had also used it to some extent, but it does not appear from the maps that there are any residences on this passway between the two public roads mentioned except the residence of Nantz at the east end and the residence of Davidson at the west. That on one occasion Nantz told him he was going to close the passway and asked him to remove some shavings from the nearby premises before he closed it; that he asked Nantz to let him come out over a new road in the woodland if he was going to close the old passway, and that Nantz told him he could do so, and that he, Davidson, did not object to Nantz's closing the passway; that the passway ran through the land of Nantz about fifteen hundred yards, and that if Nantz was to cultivate the land through which the passway ran it would be necessary to fence it all or to put gates across it, and that he, Davidson, had no objection to gates being put up.

David Simpson, Levi Pennington, G. W. Moore and others testified that for probably fifty years people had passed along the route of this passway on horseback mostly, sometimes on foot, using it without let or hindrance; that with the exception of a little cleared land at each end, it was wild, unenclosed woodland, and nobody objected to people driving or walking or riding through it where they pleased.

W. K. Jones, who sold to Nantz, a few years before suit was brought, the land over which the passway runs, and who had lived within about a mile of it for many years, testifying for Nantz, said, in substance, that before he bought the land, in 1902, over which the passway ran, there had been some travel over it, mostly on horseback and by people hauling wood and timber out