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Ky.)

DWIGGINS WIRE FENCE CO, V. PATTERSON

225

course of such business, and at least five days | least five days before the consummation of the before the consuinmation of the sale notify them sale, in good faith, for the purpose of giving the either personally or by registered letter of the notice herein required, make inquiry of the intended sale, and declaring a purchaser not seller as to the names and places of residence, responsible to any creditor not mentioned in or places of business of each and all of the the seller's statement, is not invalid as being an creditors of the seller, arising out of said busiunreasonable interference with the right of ness, and unless the purchaser, at least five days property.

before the consummation of the sale, shall no[Ed. Note.-For other cases, see Constitution- tify, or use reasonable diligence to cause to be al Law, Cent. Dig. $8 156–171; Dec. Dig. Om notified, personally, each of the seller's said 87; Fraudulent Conveyances, Cent. Dig. 8 5; creditors, or shall deposit in the mail a regisDec. Dig. ww3.]

tered letter of notice, postage prepaid, addressed 4. CONSTITUTIONAL LAW Om 240-EQUAL PRO- office address, according to the information fur

to each of the seller's said creditors at his post TECTION OF LAWS—CLASSIFICATION-BULK nished by the seller of said proposed sale. Said SALES ACT.

information shall be by written statement by Such act is not discriminatory within the the seller, and the purchaser shall not be refourteenth amendment to the federal Constitution or any provision of the Kentucky Constitu- sponsible to any creditor not mentioned in said

written statement. tion, in that it applies only to merchants, since give such notice as herein required, he shall

If the purchaser fail to that classification is not an arbitrary one, but hold the merchandise so purchased for the use is based on a well-grounded distinction, and is and benefit of all the creditors of the seller, altogether reasonable.

and shall be responsible to them for the fair [Ed. Note.-For other cases, see Constitution value of such part thereof as he, the purchaser, al Law, Cent. Dig. $8 688, 692, 693, 697-699; may have transferred or conveyed to others. Dec. Dig. Om 240.]

Nothing in this act shall be deemed or con5. FRAUDULENT CONVEYANCES Em314-SALES strued in anywise to authorize or validate any

IN BULK ACT ACTION BY CREDITOR- sale made with intent to delay, hinder or deAMOUNT OF RECOVERY.

fraud creditors, purchasers or other persons, but Such act, declaring a sale of a merchant's such sales made with such intent shall be govstock in bulk void as against his creditors aris- erned and controlled as provided by an act of ing out of such stock, and providing that a pur- the General Assembly, approved December 20, chaser failing to comply therewith shall hold 1892, entitled, 'An act in relation to fraudulent the merchandise so purchased for the use and and preferential conveyances, and entitled benefit of the creditors of the seller, and shall “Fraudulent and Preferential Conveyances,” be responsible to them for the fair market value and the amendments thereto.' of such part thereof as he may have transferred

"2. *

* * * All civil actions brought under to others, and providing by section 4 that noth- this act shall be instituted within ninety days ing therein should be construed so as to give of the consummation of the sale. any manufacturer, etc., any lien on any part of "3.

The seller shall make full and the stock except upon goods sold and delivered truthful answer to each and all of the inquiries by him, embraces all creditors who during the made of him by the purchaser, as required in continuance of the particular business sold the section 1, and if such seller shall knowingly and seller any part of the stock, whether on hand at willfully make or deliver, or cause to be made or the time of the bulk sale or not, and a pur- delivered, to said purchaser any false answer to chaser who had received of the goods sold by such inquiries, or shall induce a sale by refusing a creditor for $1,000 only $213 worth, and to make answer to such inquiries, or by frauduhad disposed of $168 worth, and had on hand lently claiming or pretending ignorance of the goods valued at $45, was liable to the extent of matters called for by such inquiries, then in the entire stock to the satisfaction of the each of said cases said seller shall be deemed creditor's claim.

guilty of a misdemeanor, and upon indictment [Ed. Note. For other cases, see Fraudulent and conviction thereof in the county where said Conveyances, Cent. Dig. $ 972; Dec. Dig. Om acts are done, he shall be punished, in the dis314.)

cretion of the jury, by a fine of not less than

one hundred nor more than five hundred dollars, Appeal from Circuit Court, Nelson County. or by confinement in the county jail not less

Action by the Dwiggins Wire Fence Com- than thirty days nor more than six months, or pany against G. S. Patterson. Judgment for both so fined and imprisoned.

“4.

* Nothing contained in this act defendant in part and action in part dismiss shall apply to sales made under any order of a ed, and plaintiff appeals, and defendant court, or to any sales made by executors, asprosecutes a cross-appeal. Affirmed on cross- signees, administrators, receivers, or any public appeal, and reversed on original appeal.

officer

of a court: J. A. Fulton, Osso W. Stanley, and E. N.

"Provided, that nothing in this act shall be Fulton, all of Bardstown, for appellant. J. sale merchant or jobber any right to or lien on

so construed as to give any manufacturer, wholeF. Combs, of Shepherdsville, for appellee. any merchandise or article in any stock of goods,

except goods sold and delivered by such manuCLAY, C. This appeal involves both the facturer, wholesale merchant or jobber." constitutionality and proper construction of The controversy arose in the following section 2651a, Kentucky Statutes 1915, known manner: J. W. Edwards owned and conas the "Sales in Bulk Statute.” The statute ducted a general merchandise store in the is as follows:

town of Boston, in Nelson county. The "1. A sale by a merchant engaged in business Dwiggins Wire Fence Company sold to Edin this state, of any portion of a stock of mer- wards certain merchandise, for which Edchandise, otherwise than in the ordinary course of his trade, and in the regular and usual pros- wards, on January 2, 1914, executed to the ecution of his business, or a sale of an entire company five promissory notes, amounting stock of merchandise in bulk by such merchant, to $200 each, payable in four, five, six, seven, shall be fraudulent and void, as against the creditors of the seller arising out of said stock of and eight months from date, with 6 per cent. merchandise, unless the purchaser shall, at interest. Each of the notes provided that in

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

case of default on any one of the notes all ques & T. Co. v. Carstarphen Warehouse should become due. In the month of April, Co., 131 Ga. 1, 62 S. E. 82; Spurr v. Travis, 1914, Edwards sold and transferred his en- 145 Mich. 721, 108 N. W. 1090, 116 Am. St. tire stock of merchandise to G. S. Patterson. Rep. 330, 9 Ann. Cas. 250; Thorpe v. PenNeither Patterson nor Edwards complied 'nock Mercantile Co., 99 Minn. 22, 108 N. W. with the provisions of the above statute. On 910, 9 Ann. Cas. 229; Wilson v. Edwards, May 20, 1914, this action was brought by 32 Pa. Super. Ct. 295; Feingold v. Steinberg, the Dwiggins Wire Fence Company against 33 Pa. Super. Ct. 39; Williams v. Fourt G. S. Patterson to recover of Patterson and Nat. Bank, 15 Okl. 477, 82 Pac. 496, 2 L. R. subject the stock of goods to payment of A. (N. S.) 334, 6 Ann. Cas. 970; Noble v. Fort plaintiff's debt. On the trial it appeared that Smith Wholesale Grocery Co., 34 Okl. 662, of the wire fence sold by plaintiff to Ed- 127 Pac. 14, 46 L. R. A. (N. S.) 455. In Wiswards, the purchaser, Patterson, received consin and Maryland the courts did not cononly $213.17 worth. Of this he had disposed sider the question of constitutionality, but of $168.28 worth, and still had on hand wire assumed the acts to be valid. Fisher v. fence of the value of $44.89. It was stipu- Herrmann, 118 Wis. 424, 95 N. W. 392; Hart lated that the value of the entire stock of v. Roney, 93 Md. 432, 49 Atl. 661. Those merchandise exceeded $1,000. The trial court courts holding such

courts holding such acts unconstitutional adjudged that plaintiff recover of Patterson proceed on the theory that they unduly rethe sum of $168.28, with interest, and fur- strict the right of property and constitute ther adjudged the plaintiff was entitled to class legislation of the most vicious kind. recover in kind the remainder of the wire To sustain their contention, the burdens fence of the value of $44.89. So much of the imposed by the acts are set out at great petition as sought to subject the entire stock length, and a long record is given of the of goods or the value thereof to the satisfac- classes of business men to which they do tion of plaintiff's claim, and so much of the not apply. With all due respect for their petition as sought to have the merchandise, views, it seems to us that the objections with the exception of the wire on hand at which they raise to the constitutionality of the time of the sale, held in trust for the such acts are matters relating to questions benefit of plaintiff and the other creditors of expediency rather than of power. of Edwards, was dismissed. From a judg- [1] If there be one question of constitument so entered, plaintiff appeals, and de- tional law well settled, it is that the courts fendant Patterson prosecutes a cross-appeal. will not declare an act unconstitutional un

The first question to be considered is the less plainly so, and, in case of doubt, will constitutionality of the statute. If resort resolve the doubt in favor of its validity. be had to authority, it will be found that Eubank v. Richmond, 226 U. S. 137, 33 Sup. there is an irreconcilable conflict in the Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, opinions of the courts. Similar statutes Ann. Cas. 1914B, 192; Johnson v. Higgins, have been enacted in a number of states. In 3 Metc. 566; Henderson v. State, 137 Ind. New York, Ohio, Indiana, Illinois, and Utah 552, 36 N. E. 257, 24 L. R. A. 469, 6 R. C. they have been declared unconstitutional. L. 73. Wright v. Hart, 182 N. Y. 350, 75 N. E. 404,

[2] From time out of mind the state has 2 L. R. A. (N. S.) 338, 3 Ann. Cas. 263; Mil- had power to regulate the acquisition, enler v. Crawford, 70 Ohio St. 207, 71 N. E. 631. joyment, and disposition of property. Crow1 Ann. Cas. 558; McKinster v. Sager, 163 ley v. Christensen, 137 U. S. 86, 11 Sup. Ct. Ind. 671, 72 N. E. 854, 68 L. R. A. 273, 106 13, 31 L. Ed. 620. The prevention of fraud Am. St. Rep. 268; Off v. Morehead, 235 Ill. is equally within the power of the state. 40, 85 N. E. 264, 20 L. R. A. (N. S.) 167, 126 People v. Freeman, 242 Ill. 373, 90 N. E. 366, Am. St. Rep. 184, 14 Ann. Cas. 434; Block 17 Ann. Cas. 1098; People v. Wagner, 86 V. Schwartz, 27 Utah, 387, 76 Pac. 22, 65 Mich. 594, 49 N. W. 609, 13 L. R. A. 286, 24 L. R. A. 308, 101 Am. St. Rep. 971, 1 Ann. Am. St. Rep. 141. And the state may proCas. 550. On the other hand, statutes of tect the people against the consequences of like import have been held valid in Missis-fraud. Hawker v. People of New York, 170 sippi, Massachusetts, Connecticut, Tennessee, U. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002. Washington, Georgia, Michigan, Minnesota, Police regulations are not rendered invalid Pennsylvania, and Oklahoma. Moore Dry by the fact that they may incidentally affect Goods Co. v. Jas. H. Rowe et al., 97 Miss. the exercise of some right guaranteed by 775, 53 South, 626; John P. Squire & Co. v. the Constitution. State v. Gurry, 121 Md. Tellier, 185 Mass. 18, 69 N. E. 312, 102 Am. 534, 88 Atl. 546, 47 L. R. A. (N. S.) 1087, Ann. St. Rep. 322; Young v. Lemieux, 79 Conn.Cas. 1915B, 957. It is only where such regu434, 65 Atl. 436, 600, 20 L. R. A. (N. S.) 160, lations are unreasonable or constitute an un129 Am. St. Rep. 193, 8 Ann. Cas. 452; Walp justifiable inpairment or abridgment of the v. Mooar, 76 Conn. 515, 57 Atl. 277; Neas right that the courts will declare them inv. Borches, 109 Tenn. 398, 71 S. W. 50, 97 valid. Henderson v. New York, 92 U. S. 259, Am. St. Rep. 851; McDaniels v. J. J. Con 23 L. Ed. 543; People v. Budd, 117 N. Y. nelly Shoe Co., 30 Wash. 519, 71 Pac. 37, 60 1, 22 N. E. 670, 682, 5 L. R. A. 559, 15 Am. Ky.)

DWIGGINS WIRE FENCE CO. V. PATTERSON

227

[3] The plain purpose of the enactment was, Constitution. We may further add that the to prevent fraudulent sales. The necessity Supreme Court of the United States has for such legislation grew out of the fact that held that similar statutes were not violamany merchants in failing circumstances tive of the fourteenth amendment to the fedwould dispose of their entire stock of goods, eral Constitution. Kidd, Dater & Price Co. pocket the money, and leave their creditors v. Musselman Grocer Co., 217 U. S. 461, 30 without remedy. To avoid such conse- Sup. Ct. 606, 54 L. Ed. 839; Lemieux V. quences, the statute provides that sales in Young, 211 U. S. 489, 29 Sup. Ct. 174, 53 L. bulk shall be fraudulent and void, unless | Ed. 295. certain things are done. In order that the [5] The next question concerns the propriepurchaser may escape the consequences of ty of the trial court holding that plaintiff the statute, all that he has to do is to make was confined in its recovery to the amount of inquiry of the seller as to the names and its property which passed into the hands of places of residence or places of business of Patterson by virtue of the sale. It is insisted each and all of the creditors of the seller that this is the correct construction of the arising out of said business, and at least statute, because the word "creditors” is five days before the consummation of the sale qualified by the clause "arising out of said notify them, either personally or by register- stock of merchandise," and that this position ed letter, of the intended sale. The seller is further fortified by the following language must furnish the information in writing, of the last section of the act: and the purchaser is not responsible to any

"Provided, that nothing in this act shall be creditor not mentioned in the written state- so construed as to give any manufacturer, wholement. All that the seller is required to do sale merchant or jobber any right to or lien is to make true answers to the inquiries of on any merchandise or article in any stock of the purchaser under the penalty of fine and goods, except goods sold and delivered by such

manufacturer, wholesale merchant or jobber." imprisonment, if he knowingly and willfully make false answers, or induce the sale by

In our opinion, this view of the statute is refusing to answer, or by fraudulently claim- entirely too narrow. It expressly provides ing or pretending ignorance of the matters that the purchaser who fails to comply with inquired about; in other words, the only the statute shall hold the merchandise so effect of the statute is to postpone the con- purchased "for the use and benefit of all the summation of the sale for at least five days creditors of the seller," and shall be responand to require of the seller and purchaser sible to them for the fair value of such part certain duties which would, perhaps, not con- thereof as he, the purchaser, may have transsume more than two or three hours' time. ferred or conveyed to others. It is clear, we From a practical standpoint, there is no think, that the qualifying words “arising out ground for distinction between the statutes of said stock of merchandise” are used sydeclaring prohibited sales void and fraudu-nonymously with the words "arising out lent and those making them presumptively of said business," and that the statute emfraudulent. The effect is the same.

A sale braces all creditors who, during the continuis merely voidable at the option of the credi- ance of the particular business, sold the seller tor, who pursues his remedy within the stat- any part of his stock of merchandise, whether utory period. Manifestly, a seller without on hand at the time of the sale to the purdebts can make a valid sale. A seller who chaser or not; the liability of the purchaser is indebted can make a valid sale after the in no event to exceed the value of the merrequired notice, or he may validate a sale chandise purchased. The manifest purpose of made without notice by paying or otherwise the act was to provide that the entire stock of satisfying his creditors. Considering these merchandise so purchased should be held in privileges in connection with the require- trust for all such creditors of the seller, to ments of the statute, it seems to us that the be distributed in proportion to their respecrestrictions imposed fall far short of con- tive claims. In case the purchaser disposed stituting an unreasonable interference with of any part of the stock, he was to be perthe right of property.

sonally liable. The effect of the proviso at [4] But it is argued that the act is dis- the end of the fourth section of the act is criminatory, in that it applies only to mer- merely to provide that no creditor should chants, and excludes from its operation all have any superior right to or lien on any other sellers. As a matter of fact, however, merchandise or article in any stock of goods the offending class is composed principally sold, unless such merchandise or articles of of merchants. The classification, therefore, goods were sold by the creditor to the seller, is not an arbitrary one, but, being based on and were embraced in the stock of goods or a well-grounded distinction, is altogether rea- merchandise disposed of by the seller. sonable, and does not violate the provisions Judgment affirmed on cross-appeal and reof the fourteenth amendment to the federal versed on original appeal for proceedings conConstitution or any provision of our own sistent with this opinion.

describing the locality, is not in the record, ROBERTS et al. V. SANDY VALLEY & although we have time and again, in other ELKHORN RY. CO.

opinions requested counsel to make a part (Court of Appeals of Kentucky. Oct. 21, 1915.) of the record in cases like this diagrams and 1. APPEAL AND ERROR Omw 1058 REVIEW maps used on the trial of the case. If, howHARMLESS ERROR.

ever, counsel see proper not to furnish us. The exclusion of evidence which was sup- this material aid, they should not complain plied by the testimony of later witnesses is if the opinion does not describe accurately harmless, though erroneous.

[Ed. Note. For other cases, see Appeal and the situation. As aptly illustrating the difError, Cent. Dig. $$ 4195, 4200-4204, 4206; ficulty we labor under in getting at the facts Dec. Dig. Om 1058.]

of a case like this, in the absence of the dia2. RAILROADS On 114 CONSTRUCTION - AC gram used on the trial, we quote from the TIONS-EVIDENCE.

in an action for damages sustained to testimony of Roberts the following. Asked plaintiffs' lands by the improper construction if he had a diagram of the premises, he said of defendant's roadbed, which caused a creek yes, and then, using the diagram before the to cut the lands, evidence held to warrant a jury, he said: finding that the damage was only temporary. [Ed. Note.-For other cases, see Railroads,

“Now right here is what we are talking about Cent. Dig. $$ 365–371; Dec. Dig. Omw114.]

now. Here is Mr. Osborne's line running off

there. That is a straight line. Here is the 3. RAILROADS Ow113–CONSTRUCTION-DAM- bend I spoke to you about. Here is the center AGES.

line of the Sandy Valley & Elkhorn Railroad. Where a railroad company builds its line This heavy line here is the fill. Here is where on the right of way purchased from a landown- they put the water over on me on that corner er, it is liable to the landowner for damages to there and cut the land and fence away. Then his remaining land only when guilty of negli- they come on down here to the old meadow gence in construction.

bottom, and they put a bridge in there. [Ed. Note.-For other cases, see Railroads, when there was any water in the creek it diCent. Dig. $$ 230, 351-357, 359-361, 363, 364; vided there and part went around one side of Dec. Dig. Om 113.]

the island and part on the other, and they filled

it up there and put it all in one channel. The Appeal from Circuit Court, Pike County. water here strikes an abutment on the right

Action by W. J. Roberts and wife against hand side of the creek as you go down and the Sandy Valley & Elkhorn Railway Com- shoots it across on the rye field bottom. Here

It pany. There was a judgment for plaintiffs, the creek above my house, and right there that and plaintiffs, deeming damages inadequate, little square represents my house. Here is the appeal. Affirmed.

county road going between my house and the

coal house that I had, and here across the creek. J. S. Cline, of Pikeville, for appellants. they made the fill in there and filled nearly oneAuxier, Harman & Francis, of Pikeville, and third of the channel in the creek opposite my

house and orchard." Hager & Stewart, of Ashland, for appellee.

All of the evidence of the witness along CARROLL, J. The appellants, Roberts this line was made very plain to the jury and and his wife, brought this suit, to recover the court by the diagram on which he pointed damages in the sum of $1,000, against the ap- out the various objects and places; but, in pellee railway company, growing out of dam- the absence of the diagram, it is impossible ages alleged to have been sustained to the for us to get an accurate idea of the situalands of the appellants by the construction tion. It, however, appears from the evidence of the roadbed of the railway company. On that the strip of land which was washed a trial before a jury there was a verdict in away by the diversion of the water from the favor of the appellants for $50, and, deeming natural bed of the creek was about 140 feet this assessment of damages inadequate, they long and 20 feet wide, and that about 60 have appealed.

panels of fence were washed away. It also The petition charged that the railway com- appears that the railway was constructed on pany, in the construction of its line of road, land purchased from the appellants. OSplaced on each side of Shelby creek the piers borne, a witness for appellants said that he of a bridge, and by the erection of these thought it would take $50 to protect the piers and embankments connecting therewith ground against further overflow. Other witcaused the channel of Shelby creek to leave nesses place the cost of protecting the land its natural bed and flow over and against against further overflows at from $100 to the land of appellants, thereby washing $300. In the instructions the court told the away and otherwise injuring their land. jury that, in view of the fact that the railThe answer was a traverse of the aver-way company had purchased its right of way ments of the petition.

from the appellants, there could be no recovOn the trial of this case the witnesses used ery in their behalf unless they believed from a diagram in explaining to the court and the the evidence that in constructing the road it jury the course of the creek and the location negligently diverted the water course of the of the bridge piers and the land over which creek in such a way as to cause the injury the water, as alleged, was diverted. This dia- complained of. They were further instructgram, which would be equally, if not more, ed that if they found for the plaintiffs, to say useful to us than to the court and jury in whether they awarded damages for tempo

Ky.)

ROSE v. NOLEN

229

rary or permanent injury. The appellants | courts which have not been vacated are public did not offer any instructions, and the jury roads, without regard to any informality in the in their verdict said that the damages as- clares that every public road established and

order of establishment, while section 4295 desessed were for temporary injury.

opened pursuant to law which has not been va[1] It is complained that the court erred cated and every road used and occupied as a in refusing to permit the appellant to testify public highway shall be deemed a public road that the railway company, in the construction whenever the establishment may come in ques

15 of this road, threw a large rock in the creek years was not ordered worked by the county near the land of the appellant, which diverted court. Held that, such way not having been acthe water of the creek. of the creek. Other witnesses, cepted, the county court was not bound fo order

it worked. however, were permitted to say that they no

[Ed. Note.-For other cases, see Highways, ticed large rocks that had been thrown in the Cent. Dig. $$ 174, 229, 323, 326; Dec. Dig. Om bed of the creek, and we think this evidence 9912.] cured whatever error there might have been

Appeal from Circuit in the refusal to let appellant answer the

Court, Whitley question indicated.

County.

Petition by James Nolen and others for a [2] It is also contended that the verdict of the jury, finding that the diversion of the writ of mandamus against B. F. Rose, Judge.

From a judgment issuing the writ, respondwater was caused by a temporary condition, was erroneous. We do not think so, as sev

ent appeals. Reversed. eral witnesses were asked what it would cost Tye, Siler & Gatliff, of Williamsburg, for to protect the land against further overflow, appellant. Bryant & Lawson, of Williamsand these witnesses gave evidence as to what, burg, for appellees. in their opinion, it would cost, the estimates varying from $50 to $200 and $300, and it also appears from the evidence of these wit-himself and other citizens of Whitley county,

CARROLL, J. The appellee Nolen, for nesses that the condition that caused the brought this action for a mandamus against damage could be easily remedied. [3] It is also urged that the court erred in the appellant, Rose, as judge of the Whitley

county court. The petition alleged, in subinstructing the jury that they could not find for the plaintiffs unless they believed that the stance, that the fiscal court of Whitley counroad was negligently constructed and this ty had, by order of court, directed the pub

lic roads of the county to be worked by negligent construction caused the overflow

citizens in accordance with the statute; that complained of. We think that when a right the judge of the county court had divided of way is purchased by a railway company, whitley county into road precincts, fixing and on this right of way it builds its line of the boundaries for the same, allotting the road, it is only liable to the party from whom citizens subject to roadwork to work in their it purchased the right of way for negligence

respective precincts, also appointing overin the construction or operation of the road. Madisonville R. Co. v. Renfro, 127 S. W. lic road in Whitley county about two miles

seers for the roads; that there was a pub508.

in length leading from the Jane Lay crossThe failure of the court to instruct the ing to the mining camps of the Proctor Coal jury as to the measure of damages is also Company; that the judge, in dividing the pointed out as an error, but a careful exam-county into road precincts, fixing the bounination of the evidence satisfies us that the daries thereof, and allotting hands and apjury were fully authorized to find for a tem- pointing overseers thereon, did not include porary injury; and, while they might have this road in any of the road precincts or apassessed the damages in a larger sum than point an overseer therefor or allot hands they did, the damages are not so inadequate thereto, and refused to do any of these as to justify us in reversing the case on this

things. A writ of mandamus was prayed ground.

against the judge directing him, as county Wherefore the judgment is affirmed.

judge, to assign the road to a precinct, appoint an overseer therefor, and allot hands

thereto. The answer of the judge was mereROSE, Judge, v. NOLEN et al. *

ly a traverse of the averments of the peti

tion. (Court of Appeals of Kentucky. Oct. 21, 1915.)

There was an agreed stipulation of facts 1. HIGHWAYS Ow6–County Roads—PUBLIC showing that this road, which, it appears, USE.

The peaceable, continuous, and open public had never been accepted by the county as a use of a fenced way for a period of 15 years road, was fenced on both sides for nearly will constitute the way a public highway. all of its entire distance, and had been used

[Ed. Note.-For other cases, see Highways, peaceably, continuously, and openly by the Cent. Dig. SS 8, 9; Dec. Dig. Om 6.]

public generally for more than 15 years next 2. HIGHWAYS Eww9912–COUNTY Roads-Im- before the commencement of this suit; that PROVEMENT.

Ky. St. § 4287, declares that all public in fixing road precincts, appointing road overroads heretofore established by the county seers for each precinct, and allotting hands

OmFur other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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