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thought that he was the purchaser of the land through Wells, or that he had any agreement with Wells to purchase the land for him. All of the circumstances of the case conduce to show that Adams' desire was that Wells should have the land, and, while the evidence is not altogether satisfactory that Wells' hands are clean in the transaction, it falls far short of establishing a parol constructive trust. A parol constructive trust arises when a party obtains the legal title to property in violation, express or implied, of some duty owed to the one who is equitably entitled, and when the property thus obtained is held in hostility to the beneficial rights of the one equitably entitled to it. 2 Pomeroy, § 1044.
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 1905 he said to another that he intended for Wells to have everything that he had, and that, when he got his land out of controversy in the courts, he meant to fix it so that Wells would get it, and to this same witness he made this statement, in connection with telling him that he had sent Wells to buy the place that he was sick and could not go.  The above was, in substance, all of the evidence offered in the case on either side, in addition to the affidavit and motion made by Adams on the 9th day of March, 1905, and his cross-petition in the case on the 30th day of June, 1905, and the facts recited in the affidavit and cross-petition. It will be observed that there is no evidence to support the allegation that Adams sent Wells to buy the land for himself; neither is there any evidence which shows that Adams ever desired to buy the land for himself, nor is there any evidence tending to show that he ever expressed any dissatisfaction in regard to the sale of the land and the purchase of it by Wells, except the statement of the witness, who testified that he went with Adams to consult a lawyer about bringing suit to recover the land; but it does not appear that his claim at that time was based upon anything growing out of the purchase of the land by Wells, and the witness who testified about the agreement between Adams and Wells that Adams should live upon a portion of the land during his lifetime, and then the portion was to revert to Wells. The latter statement, however, falls short of showing that there was any dissatisfaction on the part of Adams about the purchase of the land by Wells. The statement made by Adams to the neighbor, who went upon Wells' bond, does not show whether he intended that Wells should buy the land for him, or whether he intended that Wells should buy the land for himself, and that he was merely assisting the young man in arranging the purchase of the land. When Adams filed the affidavit on the 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 which affidavit he stated that the sale had been confirmed and the purchase money paid, and asked that Singleton's portion of it should be paid to him in place of Singleton, it is difficult to believe that Adams was laboring under any difficulty or want of knowledge in regard to the whole transaction. He was obliged to know that the purchase money had not been furnished or paid by him, and his order given upon the same day to pay to his attorney a portion of the proceeds of
the sale, and thereafter when he, on the 30th day of June, filed his cross-petition, stating in effect the same as the statements of his
 This court has uniformly upheld the doctrine of parol constructive trusts, and has maintained them where the facts which go to establish them are proven by certain and undoubted testimony, and such as to leave in the mind of the court no rational doubt as to the truth of the facts necessary to establish the trust. Roche et al. v. George's Ex'r, 93 Ky. 609, 20 S. W. 1039, 14 Ky. Law Rep. 584; Northcutt v. Hogan, 4 Ky. Law Rep. 364; Taylor v. Fox's Ex'r, 162 Ky. 804, 173 S. W. 154; Warden v. O'Brien, 142 Ky. 633, 136 S. W. 635. It has, furthermore, been held that the evidence to create a parol trust must be strong and convincing, where its establishment is contradictory to written documents showing the legal title to the property in some one else. We cannot say that in the case at bar the facts sought to be established, which are necessary to the creation of the trust alleged, are proven by such certain and undoubted testimony that no rational doubt is left in the mind of the court as to the transaction between appellee and decedent, and for these reasons there is not any sufficient reason to disturb the judgment of the chancellor, which seems to be in accordance with the principles above enunciated. The judgment is affirmed.
LOUISVILLE & N. R. CO. v. CONN. (Court of Appeals of Kentucky. Oct. 21, 1915.) 1. WATERS AND WATER COURSES 179-OB
STRUCTIONS-ACTIONS FOR DAMAGES-EVI
In an action against a railroad company for flooding plaintiff's premises by means of a raildence held to show that the rains and flood at road bridge, claimed to obstruct a stream, evithe time plaintiff's premises were flooded were extraordinary and of such unusual occurrence in the vicinity that they could not have been anticipated by persons of ordinary experience and prudence.
[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 244-250, 256-259, 263, 264; Dec. Dig. 179.]
2. WATERS AND WATER COURSES 171-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 is liable only in the event that the bridge ob- of the bridge the iron plate girders were 4 structs 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. on each side, about 74 per cent. of the channel, as a whole, was obstructed. One of the engineers who testified for plaintiff stated that the effect of this was to set the waters back about 6,000 feet east of the bridge. Another engineer, named Tinsley, testified that the new bridge was about 22 feet below the "old high-water mark" of 96.7. He ascertained this fact by consulting a number of men.
[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. §§ 216-222; Dec. Dig. 171; Bridges, Cent. Dig. § 61.]
Appeal from Circuit Court, Garrard County..
Action by George W. Conn against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Fred P. Caldwell, of Louisville, Shelby, Northcutt & Shelby, of Lexington, Benjamin D. Warfield, of Louisville, and Lewis L. Walker, of Lancaster, for appellant. Robert Harding, of Danville, J. I. Hamilton and R. H. Tomlinson, both of Lancaster, and E. V. Puryear, of Danville, for appellee.
CLAY, C. In this suit against the Louisville & Nashville Railroad Company to recover damages to his property, alleged to have been caused by the diversion of the waters of Paint Lick creek, plaintiff, George W. Conn, recovered a verdict and judgment for $2,000. The railroad company appeals.
 Plaintiff's property lies in the town of Paint Lick. At this point Paint Lick creek runs between the counties of Garrard and Madison. Defendant's railroad runs from Richmond to Lancaster in a southwestern direction. The creek runs in a northwestern direction. The village of Paint Lick is located principally between the railroad track and the creek. The principal street of Paint Lick, which is the Richmond and Lancaster turnpike, crosses the railroad track about 800 or 900 feet from the railroad bridge on the Garrard side. From this crossing it is about 300 feet from the pike bridge over the creek. Plaintiff's residence faces this street near the railroad track. Back of plaintiff's residence is his shop, and further back is Rucker's barn. The land back of these buildings is bottom land, and is about 10 feet lower than the railroad track and the street.
Plaintiff's proof tends to show that on the occasion of the flood the waters of the creek broke and overflowed the fill, and washed away the railroad track for a distance of about 420 feet. Two or three witnesses say that they had seen it rain as hard before. Plaintiff further showed that, while the bridge was under construction, W. G. Kemper wrote the superintendent a letter, in which he expressed the opinion that the construction of two more pillars under the bridge would likely cause an overflow of the creek and cause damage to Paint Lick. According to plaintiff's testimony, the water rose in his house for several feet and injured it, and damaged or practically destroyed certain articles of personal property. The water remained in his house for about an hour. It was 3 hours before the water returned to the channel of the creek. Other witnesses say that the waters went down in from 15 minutes to an hour. Plaintiff further testified that the water that entered his house came from over the railroad. In the opinion of the witnesses, the value of plaintiff's property was depreciated from 40 to 50 per cent. by reason of the reconstruction of the bridge.
According to the evidence for the defendant, the two stones that were removed from the abutments were replaced with creosote timbers, and the bottom of the present girder is 2 or 3 inches higher in elevation than the 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. Το 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.
The old highwater mark was 6.9 feet below I 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 testified that the old high-water mark was something like 12 feet below the girder of the present bridge. It was also shown that the pressure above the fill was not sufficient to push out the fill. It would have taken 10 or 12 times the amount of pressure to have The fill was washed out by the water overflowing the fill. Defendant further showed that the bench mark, or the point from which the high-water elevations were taken prior to 1909, was 3 feet and 2 inches lower than the bench mark used in 1913. It also appears that the pike bridge some distance below the railroad bridge was washed away.
As to the character of the flood and the height of the waters on the occasion complained of, defendant introduced several witDan Bodkins, who lived at Wallaceton, which is 5 miles above Paint Lick, and who had known Paint Lick creek for 12 years, testified that the creek was 2 or 3 feet higher than he had ever known it before. The tide was a great deal larger and higher than on any previous occasion. Across the bottom the creek was 200 yards wider than he had ever seen it before. There was a hard downpour of rain, and bridges, culverts, fences, and things which had never been washed out since he had been there were carried away. William Asher, who lived on Paint Lick creek about 2 miles below Wallaceton, stated that Walnut Meadow creek intersected Paint Lick creek, and lower down White Lick creek ran into it. He had lived on the Wallaceton prong of Paint Lick creek for 15 years, and in the Wallaceton neighborhood for over 20 years. He had also lived at Paint Lick for 12 years. In his judgment, the creek was 3 or 4 feet higher than it had ever been before. Fences and buildings that had never been carried away were washed away. The creek was 100 yards wider than he had even seen it on any prior occasion. J. B. Guynn, who lived on Paint Lick creek about 2 miles above Paint Lick depot for about 54 years, said that at his place the water was from 4 to 42 feet higher during the March, 1913, flood than he had ever seen it before. At his home place further down the creek the water was 42 feet higher than on any previous occasion. This was about a mile above Paint Lick. The water came into his yard, and had never been there before during his knowledge of the creek. James Todd, who lived on Paint Lick creek
ow flowed into it, was 5 or 6 feet higher. Twice as much fencing was washed away as on any previous occasion. Walker Guynn, who was raised and lives on Paint Lick creek about a mile above the railroad bridge, says that the March flood was about 5 feet higher at his house than it ever was before. The water was 92 feet further up in his yard than on any previous occasion. W. C. Wynn, who lives on White Lick creek about a mile above the point where it empties into Paint Lick creek, says that White Lick creek was from 2 to 3 feet higher than he ever saw it before. Stone fences and wire fences were all pulled down. This never happened to the same extent before. J. T. Thompson, who has lived on White Lick creek since 1881, about 2 miles from its junction with Paint Lick creek, says that White Lick Creek was 12 feet higher at his house than ever before, and that the creek rose rapidly and washed away fences that had never been washed away before. He further says that it was the hardest rain that he had ever heard fall. C. S. Ballew, who had known Paint Lick creek for 50 years and who saw the creek about 3 miles below Paint Lick on the occasion of the flood, says that it was 6 or 7 feet higher at this point than he had ever seen it before. O. J. Hendren, who lived near the turnpike bridge and had known the creek for 50 years, states that the water during the flood of 1913 was 6 feet higher than he had ever seen it before. J. D. Burchell, who lives on the Madison side, states that the water there was 6 feet higher in 1913 than he ever had known it before. Will Ross, who lived about a quarter of a mile up Francis branch from Paint Lick creek, says that the backwater from Paint Lick creek rose in his house about 2 feet. W. L. Todd, who lives at the junction of Walnut Meadow and Paint Lick creek, and who had known Paint Lick creek for about 50 years, says that never in his recollection was there another flood like the flood of March, 1913. It was the highest water he had ever known in Paint Lick creek. It must have been 4 feet higher at his place than ever before. Eliza Ann Todd, his wife, says that the flood was the highest in her recollection, and that it did more damage than any previous floods. James G. Champ, who had lived for 31 or 32 years on the Wallaceton pike, about 2 miles above the railroad bridge, says that the creek in March, 1913, was 4 or 5 feet higher than he had ever seen it before, and that fences
never been carried away before. In dry times the creek was so low that you could walk across it.
By way of rebuttal, plaintiff testified that he had seen it rain as hard as it rained that night in Paint Lick. G. M. Treadway testified as follows:
"Q. Mr. Treadway, had you ever seen rain fall as hard in that vicinity before the flood as you saw it the night of the flood and for as long a time? A. Yes, sir; I have seen it rain as hard."
 It is the well-settled rule in this state that one who constructs a bridge over a stream is liable only in the event that the bridge obstructs the passage of water that accumulates from such ordinary and usual rainfalls in the vicinity as might have been anticipated by persons of ordinary prudence 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 occurrence in the vicinity that they could not have been anticipated by persons of ordinary experience and prudence. C., St. L. & N. O. R.
Co. v. Hoover, 147 Ky. 37, 143 S. W. 770; Southern Ry. Co. v. A. M. E. Church's Trustee of Harrodsburg, 121 S. W. 972; Wallingford v. Maysville & B. S. R. Co., 107 S. W. 781. There is no evidence in this case that the waters of Paint Lick creek were ever obstructed or diverted by either the old bridge or the new bridge, so as to injure the property of the residents of Paint Lick. There is no evidence that the openings in the new bridge were not sufficient to carry off the water that accumulated from such ordinary and usual rainfalls in that vicinity as might have been anticipated by persons of ordinary experience and prudence. On the contrary, defendant's evidence conclusively shows that the flood of March, 1913, was unprecedented. This is brought out, not by one or two witnesses living at Paint Lick, but by a number of witnesses who saw the conditions, not merely at Paint Lick, but above and below it, and throughout the entire watershed of Paint Lick creek. It is clear from their testimony that the waters of Paint Lick creek and its tributaries were not only higher, but wider and more violent, than they had ever been known in the memory of the oldest inhabitants. The testimony of plaintiff and Treadway to the effect that they had seen it rain as hard in no way contradicts the testimony of defendant's witnesses. Both witnesses are silent as to the length of time it rained and as to the effect of the rain on the waters of the creek. Where it is shown, as in this instance, by the evidence of uncontradicted witnesses, that the waters of a creek and its tributaries, both above and below the injured property, were higher and wider than they had ever been known to be before, and were so violent as to reach and carry away fences and other things that had never on any previ
ous occasion been washed away, it must be regarded as conclusively established that the rains and flood were extraordinary and of such unusual occurrence in that vicinity that they could not have been anticipated by persons of ordinary experience and prudence. Indeed, if the flood in question be not of this character, it would be difficult to imagine a case where the doctrine of extraordinary floods would apply.
It being conclusively established that the could not have been anticipated by persons flood was of such unusual occurrence that it of ordinary experience and prudence, it follows that the trial court should have directed a verdict in favor of the defendant. No other questions are passed on.
for proceedings consistent with this opinion. Judgment reversed, and cause remanded
CARRIGAN v. GRAHAM.
(Court of Appeals of Kentucky. Oct. 21, 1915.) 1. MALICIOUS PROSECUTION 21-ACTIONSDEFENSES.
disclosure to the attorney, is a defense to an action of malicious prosecution.
Advice of counsel, where there is a complete
[Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 40-44; Dec. Dig. 21.]
2. MALICIOUS PROSECUTION 64-ACTIONS
dence held to show that defendant made full and In an action for malicious prosecution, evicomplete disclosure to counsel and acted upon his advice.
[Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 151-153; Dec. Dig. 64.]
Appeal from Circuit Court, McCracken County.
Action by Myrtle Carrigan against Jake Graham. From judgment for defendant, plaintiff appeals. Affirmed.
Berry & Grassham and W. A. Middleton, all of Paducah, for appellant. John G. Lovett, of Benton, and Wheeler & Hughes, of Paducah, for appellee.
HANNAH, J. Mrs. Myrtle Carrigan was arrested upon a warrant issued by a magistrate of McCracken county, procured by Jake Graham and wife, charging her with the offense of petty larceny. The grand jury being in session, she was held to await its action; and the prosecution, having been referred to and considered by the grand jury, was dismissed, and she was thereupon discharged. She then instituted this action against Graham to recover damages for alleged malicious prosecution, and upon a trial the court directed a verdict for the defendant at the close of all the evidence, and dismissed the petition. The plaintiff appeals.
[1, 2] The facts in the case, as shown by the evidence for the plaintiff, are that she and the defendant lived in the country, about
See, also, Moser v. Fable, 164 Ky. 517, 175 S. W. 997; Dyer v. Singer Sewing Machine Company, 164 Ky. 538, 175 S. W. 1037; National Life & Accident Ins. Co. v. Gibson, 101 S. W. 895, 31 Ky. Law Rep. 101, 12 L. R. A. (N. S.) 717; O'Daniel v. Smith, 66 S. W. 284, 23 Ky. Law Rep. 1822.
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, plaintiff went over to Graham's and inquired of Mrs. Graham whether she had seen a stray goose; that Mrs. Graham replied that she had not, that there was no stray goose about their premises, unless it had come there that day; that she thereupon went to look at some geese Mrs. Graham had there, and that she took one of them home with her. The magistrate testified that Graham and his wife applied to him for a warrant against Mrs. Carrigan, and that he referred them to the county attorney; that they came back later with a warrant drawn up by the county attorney, and that he issued it on the sworn testimony of Mrs. Graham, charging Mrs. Carrigan with petty larceny.
The defendant proved by the county attorney that the Grahams came to his office and told him they had been sent there by the magistrate; that Mrs. Graham told him that Mrs. Carrigan had come to her house, and asked for the goose; that she (Mrs. Graham) informed Mrs. Carrigan that the goose was not there; that Mrs. Carrigan's goose had been missing about three months; that she told Mrs. Carrigan there was no stray goose about the premises unless it had come there that morning; that thereupon Mrs. Carrigan went down the road to where Mrs.
Graham's geese were in a field, and got over the fence, seized a goose, and took it home with her; that he thereupon advised them that Mrs. Carrigan was guilty of the offense of petty larceny, and wrote a warrant accordingly, which he gave to them to take back to the magistrate for issual.
Under this evidence, it is insisted by appellant that the trial court erred in directing a verdict for the defendant. Appellant concedes that advice of counsel is a complete defense in an action for malicious prosecution, but contends (1) that all due diligence must be exercised by the prosecutor in obtaining all the facts relating to the offense, and (2) that the prosecutor must make a full and fair statement of such facts to the attorney upon whose advice the prosecution is commenced; that, if these things have been done, they constitute probable cause and therefore a complete defense, but that it is for the jury to say whether these things have been done. In other words, it seems to be appellant's contention that a peremptory instruction is never justified upon the ground of acting under advice of counsel. The rule in this respect was laid down in Schott v. Indiana National Life Insurance Company, 160 Ky. 533, 169 S. W. 1023, as follows:
"What facts and circumstances amount to probable cause is a question of law. Whether they exist or not, in any particular case where the evidence is conflicting, is a question of fact to be determined by the jury. But where there is no conflict in the evidence, whether the facts
In the instant case, the proof shows without contradiction or dispute that the Grahams made a full and fair statement of all the facts to the attorney upon whose advice the prosecution was instituted, and acted upon his advice. Under these circumstances, the trial court properly directed a verdict for the defendant.
PACIFIC MUT. LIFE INS. CO. v. TAYLOR. (Court of Appeals of Kentucky. Oct. 20, 1915.)
1. APPEAL AND ERROR 671, 907-REVIEWPRESUMPTIONS.
dence, it will be presumed that the evidence In the absence of a transcript of the evidence, it will be presumed that the evidence supported the judgment, and the only matter which can be reviewed is the sufficiency of the pleadings.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2916, 3673, 3674, 3676, 3678; Dec. Dig. 671, 907.]
2. APPEAL AND ERROR
Where the evidence is not in the record, it will be presumed in an action on an insurance policy that the premiums were paid; judgment going for plaintiff.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. 909.] 3. PLEADING 433 - SUFFICIENCY - AIDER BY VERDICT.
diet went for plaintiff, an averment that the In an action on a life policy, where verpolicy was alive and in full force since the date of its execution and delivery must be held sufficient, though not specifically averring payment of premiums.
[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1451-1477; Dec. Dig. 433.]
Appeal from Circuit Court, Knox County. Action by Sarah J. Taylor against the Pacific Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.
J. M. Robsion, of Barbourville, for appellant. Golden & Lay, of Barbourville, for
CLAY, C. On October 8, 1912, the Pacific Mutual Life Insurance Company of California issued to George F. Taylor a contract of accident insurance, in which his wife, Sarah J. Taylor, was named as beneficiary. George F. Taylor died on May 1, 1913. Mrs. Taylor brought this suit to recover on the policy. The petition charges, in substance, that on October 8, 1912, the defendant signed, executed, and delivered to George F. Taylor a con