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Ky.)

LOUISVILLE & N. R. CO. V. CONN

195

1905, he said to another that he had taken / affidavit previously filed, his conduct is very a liking to Tommy Wells, and was going to inconsistent with the contention that he give him all that he had. In the spring of thought that he was the purchaser of the 1905 he said to another that he intended for land through Wells, or that he had any agreeWells to have everything that he had, and ment with Wells to purchase the land for that, when he got his land out of contro- him. All of the circumstances of the case versy in the courts, he meant to fix it so that conduce to show that Adams' desire was that Wells would get it, and to this same witness Wells should have the land, and, while the he made this statement, in connection with evidence is not altogether satisfactory that telling him that he had sent Wells to buy Wells' hands are clean in the transaction, the place—that he was sick and could not go. it falls far short of establishing a parol con

[1] The above was, in substance, all of the structive trust. A parol constructive trust evidence offered in the case on either side, in arises when a party obtains the legal title to addition to the affidavit and motion made by property in violation, express or implied, of Adams on the 9th day of March, 1905, and some duty owed to the one who is equitably his cross-petition in the case on the 30th day entitled, and when the property thus obtainof June, 1905, and the facts recited in the ed is held in hostility to the beneficial rights affidavit and cross-petition. It will be ob- of the one equitably entitled to it. 2 Pomeserved that there is no evidence to support roy, $ 1044. the allegation that Adams sent Wells to buy [2] This court has uniformly upheld the the land for himself; neither is there any doctrine of parol constructive trusts, and has evidence which shows that Adams ever de- maintained them where the facts which go to sired to buy the land for himself, nor is there establish them are proven by certain and unany evidence tending to show that he ever doubted testimony, and such as to leave in expressed any dissatisfaction in regard to the the mind of the court no rational doubt as to sale of the land and the purchase of it by the truth of the facts necessary to establish Wells, except the statement of the witness, the trust. Roche et al. v. George's Ex'r, 93 who testified that he went with Adams to Ky. 609, 20 S. W. 1039, 14 Ky. Law Rep. 584; consult a lawyer about bringing suit to recov- Northcutt v. Hogan, 4 Ky. Law Rep. 364; er the land; but it does not appear that his Taylor v. Fox's Ex’r, 162 Ky. 804, 173 S. W. claim at that time was based upon anything 154; Warden v. O'Brien, 142 Ky. 633, 136 S. growing out of the purchase of the land by W. 635. It has, furthermore, been held that Wells, and the witness who testified about the evidence to create a parol trust must be the agreement between Adams and Wells strong and convincing, where its establishthat Adams should live upon a portion of the ment is contradictory to written documents land during his lifetime, and then the por- showing the legal title to the property in tion was to revert to Wells. The latter state- some one else. We cannot say that in the ment, however, falls short of showing that case at bar the facts sought to be established, there was any dissatisfaction on the part of which are necessary to the creation of the Adams about the purchase of the land by trust alleged, are proven by such certain and Wells. The statement made by Adams to the undoubted testimony that no rational doubt neighbor, who went upon Wells' bond, does is left in the mind of the court as to the not show whether he intended that Wells transaction between appellee and decedent, should buy the land for him, or whether he and for these reasons there is not any suffiintended that Wells should buy the land for cient reason to disturb the judgment of the himself, and that he was merely assisting the chancellor, which seems to be in accordance young man in arranging the purchase of the with the principles above enunciated. land. When Adams filed the affidavit on the

The judgment is affirmed. 9th day of March, six months after the decretal sale, and after the exceptions to the sale had been overruled, and the order made to distribute the proceeds of the sale, and in

LOUISVILLE & N. R. CO. v. CONN. which affidavit he stated that the sale had (Court of Appeals of Kentucky. Oct. 21, 1915.) been confirmed and the purchase money paid, 1. WATERS AND WATER COURSES Cw179-OBand asked that Singleton's portion of it

STRUCTIONS - ACTIONS FOR DAMAGES — Evishould be paid to him in place of Singleton,

DENCE. it is difficult to believe that Adams was la- In an action against a railroad company for boring under any difficulty or want of knowl-flooding plaintiff's premises by means of a railedge in regard to the whole transaction. He

road bridge, claimed to obstruct a stream, evi

dence held to show that the rains and flood at was obliged to know that the purchase money the time plaintiff's premises were flooded were had not been furnished or paid by him, and extraordinary and of such unusual occurrence in his order given upon the same day to pay the vicinity that they could not have been anticto his attorney a portion of the proceeds of ipated by persons of ordinary experience and

prudence. the sale, and thereafter when he, on the 30th day of June, filed his cross-petition, stating | Water Courses, Cent. Dig. 88 244–250, 256–259,

[Ed. Note. For other cases, see Waters and in effect the same as the statements of his 263, 264; Dec. Dig. 179.]

2. WATERS AND WATER COURSES Ow171-OB-two stones, and the bridge was let down 18 STRUCTIONS-LIABILITY.

inches lower than the old bridge. At the top One who constructs a bridge over a stream of the bridge the iron plate girders were 4 is liable only in the event that the bridge obstructs the passage of water that accumulates feet deep and the rails and cross-ties 12 from such ordinary and usual rainfalls in the inches deep. The dirt fill on the Madison vicinity as might have been anticipated by per- side was 20 feet high and about 150 feet sons of ordinary prudence and experience, and he is not liable for damages growing out of long. On the Garrard side it was 50 feet overflows caused by extraordinary rains or long and 20 feet high. Estimating the chanfloods, such as are of such unusual occurrence nel of the creek as extending, not from the that they could not have been anticipated by per- banks proper, but from the ascending bank sons of ordinary experience and prudence.

[Ed. Note. For other cases, see Waters and on each side, about 74 per cent. of the chanWater Courses, Cent. Dig. SS 216-222; Dec. nel, as a whole, was obstructed. One of the Dig. Om 171; Bridges, Cent. Dig. 8 61.]

engineers who testified for plaintiff stated Appeal from Circuit Court, Garrard Coun- that the effect of this was to set the waters ty..

back about 6,000 feet east of the bridge. Action by George W. Conn against the Another engineer, named Tinsley, testified Louisville & Nashville Railroad Company. that the new bridge was about 242 feet beJudgment for plaintiff, and defendant ap- low the "old high-water mark” of 96.7. He peals. Reversed and remanded.

ascertained this fact by consulting a number Fred P. Caldwell, of Louisville, Shelby, of men. Northcutt & Shelby, of Lexington, Benjamin Plaintiff's proof tends to show that on the D. Warfield, of Louisville, and Lewis L. occasion of the flood the waters of the creek Walker, of Lancaster, for appellant. Robert broke and overflowed the fill, and washed Harding, of Danville, J. I. Hamilton and away the railroad track for a distance of R. H. Tomlinson, both of Lancaster, and E. about 420 feet. Two or three witnesses say V. Puryear, of Danville, for appellee. that they had seen it rain as hard before.

Plaintiff further showed that, while the CLAY, C. In this suit against the Louis- bridge was under construction, W. G. Kemville & Nashville Railroad Company to re- per wrote the superintendent a letter, in cover damages to his property, alleged to which he expressed the opinion that the conhave been caused by the diversion of the wa- struction of two more pillars under the ters of Paint Lick creek, plaintiff, George W. bridge would likely cause an overflow of the Conn, recovered a verdict and judgment for creek and cause damage to Paint Lick.

Ac$2,000. The railroad company appeals. cording to plaintiff's testimony, the water

[1] Plaintiff's property lies in the town of rose in his house for several feet and inPaint Lick. At this point Paint Lick creek jured it, and damaged or practically deruns between the counties of Garrard and stroyed certain articles of personal property. Madison. Defendant's railroad runs from The water remained in his house for about Richmond to Lancaster in a southwestern an hour. It was 3 hours before the water direction. The creek runs in a northwestern returned to the channel of the creek. Other direction. The village of Paint Lick is lo- witnesses say that the waters went down in cated principally between the railroad track from 15 minutes to an hour. Plaintiff furand the creek. The principal street of Paint ther testified that the water that entered his Lick, which is the Richmond and Lancaster house came from over the railroad. In the turnpike, crosses the railroad track about opinion of the witnesses, the value of plain800 or 900 feet from the railroad bridge on tiff's property was depreciated from 40 to 50 the Garrard side. From this crossing it is per cent. by reason of the reconstruction of about 300 feet from the pike bridge over the the bridge. creek. Plaintiff's residence faces this street According to the evidence for the defendnear the railroad track. Back of plaintiff's ant, the two stones that were removed from residence is his shop, and further back is the abutments were replaced with creosote Rucker's barn. The land back of these build- timbers, and the bottom of the present girder ings is bottom land, and is about 10 feet low- is 2 or 3 inches higher in elevation than the er than the railroad track and the street.

old span.

On being apprised of the fear on In July, 1909, the railroad company recon- the part of the residents of Paint Lick that structed its bridge at Paint Lick. At that the bridge might cause an overflow, A. F. point the channel proper of the creek is Frendburg, the company's engineer, made a about 160 feet wide. On each side of the careful investigation and estimated the Paint channel proper the bank ascends, and from Lick watershed as containing 50 square the top of one of these banks to the other miles. As a matter of fact, the government the distance is 448 feet. In reconstructing map showed it to be 46 square miles. то the bridge the company placed two addition- permit the passage of this water required 387 al stone piers thereunder. These piers were cubic feet per second per square mile. The 17 feet high and 6 feet wide. According to bridge provided for 478 cubic feet. The highthe testimony for plaintiff, the stone abut-water mark of March, 1913, was 7 feet and ments were lowered 18 inches, by taking out 1 inch higher than the old high-water mark,

Ky.)

LOUISVILLE & N. R. CO. Y, CONN

197

The old highwater mark was 6.9 feet below creek was from 4 to 6 feet higher than he the top of the bridge and 2.3 feet below the had ever seen it before. It was 100 feet bottom of the girder. He further stated that wider on the Garrard side. Fences which the fills on each side of the bridge were not had never been injured before were washed in the natural channel of the stream. In his away. T. J. Todd, who was 32 years of age opinion, the opening under the bridge was and had known the creek practically all of fully adequate, not only to allow the water his life, testified that the water on Walnut to pass from usual and ordinary rainfalls Meadow during the March, 1913, flood was and floods, but was sufficient for all previous 3 or 4 feet higher than he had seen it berainfalls and floods in that vicinity, whether fore. Paint Lick creek, after Walnut Meadordinary or extraordinary. Other witnesses ow flowed into it, was 5 or 6 feet higher. testified that the old high-water mark was Twice as much fencing was washed away as something like 142 feet below the girder of on any previous occasion. Walker Guynn, the present bridge. It was also shown that who was raised and lives on Paint Lick creek the pressure above the fill was not sufficient about a mile above the railroad bridge, says to push out the fill. It would have taken 10 that the March flood was about 5 feet higher or 12 times the amount of pressure to have at his house than it ever was before. The done so. The fill was washed out by the water was 92 feet further up in his yard water overflowing the fill. Defendant fur- than on any previous occasion. W. C. Wynn, ther showed that the bench mark, or the who lives on White Lick creek about a mile point from which the high-water elevations above the point where it empties into Paint were taken prior to 1909, was 3 feet and 2 Lick creek, says that White Lick creek was inches lower than the bench mark used in from 2 to 3 feet higher than he ever saw 1913. It also appears that the pike bridge it before. Stone fences and wire fences were some distance below the railroad bridge was all pulled down. This never happened to the washed away.

same extent before. J. T. Thompson, who As to the character of the flood and the has lived on White Lick creek since 1881, height of the waters on the occasion com- about 2 miles from its junction with Paint plained of, defendant introduced several wit- Lick creek, says that White Lick Creek was nesses. Dan Bodkins, who lived at Wallace- 112 feet higher at his house than ever before, ton, which is 5 miles above Paint Lick, and and that the creek rose rapidly and washed who had known Paint Lick creek for 12 away fences that had never been washed years, testified that the creek was 2 or 3 away before. He further says that it was feet higher than he had ever known it before. the hardest rain that he had ever heard fall. The tide was a great deal larger and higher C. S. Ballew, who had known Paint Lick than on any previous occasion. Across the creek for 50 years and who saw the creek bottom the creek was 200 yards wider than about 3 miles below Paint Lick on the occahe had ever seen it before. There was a sion of the flood, says that it was 6 or 7 feet hard downpour of rain, and bridges, culverts, higher at this point than he had ever seen fences, and things which had never been it before. O. J. Hendren, who lived near washed out since he had been there were the turnpike bridge and had known the carried away. William Asher, who lived on creek for 50 years, states that the water during Paint Lick creek about 2 miles below Wal- the flood of 1913 was 6 feet higher than he laceton, stated that Walnut Meadow creek in- had ever seen it before. J. D. Burchell, who tersected Paint Lick creek, and lower down lives on the Madison side, states that the White Lick creek ran into it. He had lived water there was 6 feet higher in 1913 than on the Wallaceton prong of Paint Lick creek he ever had known it before. Will Ross, for 15 years, and in the Wallaceton neigh- who lived about a quarter of a mile up borhood for over 20 years. He had also lived Francis branch froin Paint Lick creek, says at Paint Lick for 12 years. In his judgment, that the backwater from Paint Lick creek the creek was 3 or 4 feet higher than it had rose in his house about 2 feet. W. L. Todd, ever been before. Fences and buildings that who lives at the junction of Walnut Meadow had never been carried away were washed and Paint Lick creek, and who had known away. The creek was 100 yards wider than Paint Lick creek for about 50 years, says he had even seen it on any prior occasion. that never in his recollection was there anJ. B. Guynn, who lived on Paint Lick creek other flood like the flood of March, 1913. It about 2 miles above Paint Lick depot for was the highest water he had ever known in about 54 years, said that at his place the Paint Lick creek. It must have been 4 feet water was from 4 to 412 feet higher during higher at his place than ever before. Eliza the March, 1913, flood than he had ever seen Ann Todd, his wife, says that the flood was it before. At his home place further down the highest in her recollection, and that it the creek the water was 412 feet higher than did more damage than any previous floods. on any previous occasion. This was about James G. Champ, who had lived for 31 or 32 a mile above Paint Lick. The water came years on the Wallaceton pike, about 2 miles into his yard, and had never been there be- above the railroad bridge, says that the creek fore during his knowledge of the creek. in March, 1913, was 4 or 5 feet higher than James Todd, who lived on Paint Lick creek he had ever seen it before, and that fences

never been carried away before. In dry |ous occasion been washed away, it must be times the creek was so low that you could regarded as conclusively established that the walk across it.

rains and flood were extraordinary and of By way of rebuttal, plaintiff testified that such unusual occurrence in that vicinity that he had seen it rain as hard as it rained that they could not have been anticipated by pernight in Paint Lick. G. M. Treadway testi- sons of ordinary experience and prudence. fied as follows:

Indeed, if the flood in question be not of this "Q. Mr. Treadway, had you ever seen rain character, it would be difficult to imagine a fall as hard in that vicinity before the flood as case where the doctrine of extraordinary you saw it the night of the flood and for as long floods would apply. a time?

A. Yes, sir; I have seen it rain as hard.”

It being conclusively established that the

flood was of such unusual occurrence that it [2] It is the well-settled rule in this state could not have been anticipated by persons that one who constructs a bridge over a of ordinary experience and prudence, it fol. stream is liable only in the event that the lows that the trial court should have directed bridge obstructs the passage of water that

a verdict in favor of the defendant. No othaccumulates from such ordinary and usual

er questions are passed on. rainfalls in the vicinity as might have been

Judgment reversed, and cause remanded anticipated by persons of ordinary prudence for proceedings consistent with this opinion. and experience. He is not liable for damages growing out of overflows which were caused by extraordinary rains or floods; i. e., such floods or rains as are of such unusual occur

CARRIGAN v. GRAHAM. rence in the vicinity that they could not have (Court of Appeals of Kentucky. Oct. 21, 1915.) been anticipated by persons of ordinary ex- 1. MALICIOUS PROSECUTION Om 21-ACTIONSperience and prudence. C., St. L. & N. 0. R. DEFENSES. Co. v. Hoover, 147 Ky. 37, 143 S. W. 770; disclosure to the attorney, is a defense to an ac

Advice of counsel, where there is a complete Southern Ry. Co. v. A. M. E. Church's Trus- tion of malicious prosecution. tee of Harrodsburg, 121 S. W. 972; Walling

[Ed. Note.-For other cases, see Malicious ford v. Maysville & B. S. R. Co., 107 S. W. Prosecution, Cent. Dig. 88 40–44; Dec. Dig. 781. There is no evidence in this case that On 21.] the waters of Paint Lick creek were ever 2. MALICIOUS PROSECUTION Om 64-ACTIONSobstructed or diverted by either the old

EVIDENCE-SUFFICIENCY. bridge or the new bridge, so as to injure the dence held to show that defendant made full and

In an action for malicious prosecution, eviproperty of the residents of Paint Lick. complete disclosure to counsel and acted upon There is no evidence that the openings in the his advice. new bridge were not sufficient to carry off the [Ed. Note.-For other cases, see Malicious water that accumulated from such ordinary Prosecution, Cent. Dig. $8 151–153; Dec. Dig.

um 64.] and usual rainfalls in that vicinity as might have been anticipated by persons of ordinary

Appeal from Circuit Court, McCracken experience and prudence. On the contrary,

On the contrary, County. defendant's evidence conclusively shows that

Action by Myrtle Carrigan against Jake the flood of March, 1913, was unprecedented. Graham. From judgment for defendant, This is brought out, not by one or two wit- plaintiff appeals. Affirmed. nesses living at Paint Lick, but by a number Berry & Grassham and W. A. Middleton, of witnesses who saw the conditions, not all of Paducah, for appellant. John G. Lovmerely at Paint Lick, but above and below it, ett, of Benton, and Wheeler & Hughes, of and throughout the entire watershed of Paint Paducah, for appellee. Lick creek. It is clear from their testimony that the waters of Paint Lick creek and its HANNAH, J. Mrs. Myrtle Carrigan was artributaries were not only higher, but wider rested upon a warrant issued by a magisand more violent, than they had ever been trate of McCracken county, procured by Jake known in the memory of the oldest inhabit-Graham and wife, charging her with the ofants. The testimony of plaintiff and Treadfense of petty larceny. The grand jury beway to the effect that they had seen it raining in session, she was held to await its acas hard in no way contradicts the testimony tion; and the prosecution, having been reof defendant's witnesses. Both witnesses are ferred to and considered by the grand jury, silent as to the length of time it rained and was dismissed, and she was thereupon disas to the effect of the rain on the waters of charged. She then instituted this action the creek. Where it is shown, as in this in- against Graham to recover damages for alstance, by the evidence of uncontradicted wit- leged malicious prosecution, and upon a trial nesses, that the waters of a creek and its the court directed a verdict for the defendant tributaries, both above and below the injured at the close of all the evidence, and dismissproperty, were higher and wider than they ed the petition. The plaintiff appeals. had ever been known to be before, and were [1, 2] The facts in the case, as shown by so violent as to reach and carry away fences the evidence for the plaintiff, are that she and other things that had never on any previ- I and the defendant lived in the country, about

Ky.)

PACIFIC MUT. LIFE INS. CO. V. TAYLOR

199

half a mile apart; that in October or Novem- shown amount to probable cause is ordinarily a ber, 1912, a goose disappeared from the question of law for the court." premises of the plaintiff; that in April, 1913, See, also, Moser v. Fable, 164 Ky. 517, 175 plaintiff went over to Graham's and inquired S. W. 997; Dyer v. Singer Sewing Machine of Mrs. Graham whether she had seen a Company, 164 Ky. 538, 175 S. W. 1037; Nastray goose; that Mrs. Graham replied that tional Life & Accident Ins. Co. v. Gibson, she had not, that there was no stray goose 101 S. W. 895, 31 Ky. Law Rep. 101, 12 about their premises, unless it had come L. R. A. (N. S.) 717; O'Daniel v. Smith, 66 there that day; that she thereupon went to S. W. 284, 23 Ky. Law Rep. 1822. look at some geese Mrs. Graham had there, In the instant case, the proof shows withand that she took one of them home with her. | out contradiction or dispute that the GraThe magistrate testified that Graham andhams made a full and fair statement of all his wife applied to him for a warrant against the facts to the attorney upon whose advice Mrs. Carrigan, and that he referred them to the prosecution was instituted, and acted the county attorney; that they came back upon his advice. Under these circumstances, later with a warrant drawn up by the county the trial court properly directed a verdict attorney, and that he issued it on the sworn for the defendant. testiniony of Mrs. Graham, charging Mrs. Judgment affirmed. Carrigan with petty larceny.

The defendant proved by the county attorney that the Grahams came to his office PACIFIC MUT. LIFE INS. CO. v. TAYLOR. and told him they had been sent there by

(Court of Appeals of Kentucky. Oct. 20, the magistrate; that Mrs. Graham told him

1915.) that Mrs. Carrigan had come to her house, 1. APPEAL AND ERROR 671, 907-REVIEWand asked for the goose; that she (Mrs. Gra PRESUMPTIONS. ham) informed Mrs. Carrigan that the goose dence, it will be presumed

that the evidence

In the absence of a transcript of the eviwas not there; that Mrs. Carrigan's goose supported the judgment, and the only matter had been missing about three months; that which can be reviewed is the sufficiency of the she told Mrs. Carrigan there was no stray pleadings. goose about the premises unless it had come [Ed. Note. For other cases, see Appeal and there that morning; that thereupon Mrs. Error, Cent, Dig. $$ 2899, 2911–2916, 3673, Carrigan went down the road to where Mrs. 3674, 3676, 3678; Dec. Dig.'em671, 907.)

2. APPEAL AND ERROR Om909-REVIEW-PREGraham's geese were in a field, and got over

SUMPTIONS. the fence, seized a goose, and took it home Where the evidence is not in the record, with her; that he thereupon advised them it will be presumed in an action on an insurthat Mrs. Carrigan was guilty of the offense ance policy that the premiums were paid; judg

ment going for plaintiff. of petty larceny, and wrote a warrant ac

[Ed. Note. For other cases, see Appeal and cordingly, which he gave to them to take Error, Cent. Dig. $ 3675; Dec. Dig. Om909.] back to the magistrate for issual.

3. PLEADING Om 433 – SUFFICIENCY – AIDER Under this evidence, it is insisted by appel BY VERDICT. lant that the trial court erred in directing dict went for plaintiff, an averment that the

In an action on a life policy, where vera verdict for the defendant. Appellant con- policy was alive and in full force since the date cedes that advice of counsel is a complete of its execution and delivery must be held suffidefense in an action for malicious prosecu- cient, though not specifically averring payment

of premiums. tion, but contends (1) that all due diligence must be exercised by the prosecutor in ob- Cent. Dig. $S 1451-1477; Dec. Dig. Omw433.]

[Ed. Note. For other cases, see Pleading, taining all the facts relating to the offense, and (2) that the prosecutor must make a full

Appeal from Circuit Court, Knox County. and fair statement of such facts to the at Action by Sarah J. Taylor against the Patorney upon whose advice the prosecution is cific Mutual Life Insurance Company. From commenced; that, if these things have been a judgment for plaintiff, defendant appeals. done, they constitute probable cause and Affirmed. therefore a complete defense, but that it is J. M. Robsion, of Barbourville, for appelfor the jury to say whether these things have lant. Golden & Lay, of Barbourville, for been done. In other words, it seems to be appellee. appellant's contention that a peremptory instruction is never justified upon the ground CLAY, C. On October 8, 1912, the Pacific of acting under advice of counsel. The rule Mutual Life Insurance Company of Califorin this respect was laid down in Schott v. nia issued to George F. Taylor a contract of Indiana National Life Insurance Company, accident insurance, in which his wife, Sarah 160 Ky. 533, 169 S. W. 1023, as follows: J. Taylor, was named as beneficiary. George

“What facts and circumstances amount to F. Taylor died on May 1, 1913. Mrs. Taylor probable cause is a question of law. Whether | brought this suit to recover on the policy. they exist or not, in any particular case where The petition charges, in substance, that on the evidence is conflicting, is a question of fact to be determined by the jury. But where there October 8, 1912, the defendant signed, executis no conflict in the evidence, whether the facts ed, and delivered to George F. Taylor a con

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