6. TRIAL Om 139—PEREMPTORY INSTRUCTION-s appellants to the report of the commissionEVIDENCE.

ers in the county court, which report seems The refusal of a peremptory instruction, where the evidence preponderates upon the oth: 1 to have conformed to the requirements of the er side, is not error, and will not be disturbed statute in its showing as to the necessity for on appeal.

and practicability of the making of the pro(Ed. Note.-For other cases, see Trial, Cent. posed alteration in the road. The verdict Dig. 88 332, 333, 338–341, 365; Dec. Dig. One of the jury was as follows: 139.)

“We, the jury, recommend that the crossing, 7. HIGHWAYS O72–CHANGE OF LOCATION- as it now is, be discontinued, and further recomINCIDENTAL MATTERS.

mend the change proposed and described in Where a judgment changing the location of the petition filed in this case by the petitioners, a highway requires the erection of an obstruc- calling for the overhead bridge.' tion across the old highway, the inclusion of such matter, though not essential

to the decision, though not in the same form or as elaborate

The findings expressed in the verdict, is not error.

[Ed. Note.-For other cases, see Highways, in detail, accord with those of the commisCent. Dig. $8 239-252; Dec. Dig. 72.] sioners. No objection seems to be urged to

the form of the verdict, and it was made the Appeal from Circuit Court, Scott County. basis for the judgment of the circuit court,

Action by W. A. Carrick and others against which approved and established the alterac. H. Garth and others. From a judgment tion in the road and the construction of the for defendants, plaintiffs appeal. Affirmed.

overhead bridge over the railroad, as recJas. F. Askew and B. M. Lee, both of ommended by it. The present appeal is from Georgetown, for appellants. T. L. Edelen, that judgment. of Frankfort, and Jas. Bradley and Bradley [1, 2] The grounds urged by appellants for & Bradley, all of Georgetown, for appellees. a new trial are numerous, but we will con

sider only such of them as we regard mateSETTLE, J. This is the second appeal in rial. The first ground is that the circuit this case.

We quote from the opinion on court erred in overruling appellants' special the first appeal (Carrick, etc., v. Garth, etc., demurrer to the petition. The demurrer was 159 Ky. 505, 167 S. W. 687) such of the facts for alleged defect of parties, in that the Cinas give the history of the case down to its cinnati, New Orleans & Texas Pacific Railreturn to the circuit court after the reversal road Company was not made a party to the of the judgment by this court, which result- proceeding. Notwithstanding their special ed solely from the erroneous ruling of the demurrer, when the railroad company was circuit court in dismissing the appeal taken later made a party to the proceeding on its to that court by the appellants from the judg- own motion, the order was objected to by the ment of the county court:

appellants. The railroad company was a “Appellees, Garth and others, instituted in the necessary party to the proceeding, and its Scott county court a proceeding seeking the al- being made a party caused no change in the teration of a portion of the county road known issues involved, nor in the status of the other as the Lemon's Mill pike, the change sought parties in interest. If, however, it could to be made being the closing of a portion of the road so as to abolish a grade crossing over the properly be said it was error to make it a track of the Cincinnati, New Orleans & Texas party, appellants, after objecting by special Pacific Railroad, and the opening of a new road demurrer because it was not a party, are esin lieu of the portion discontinued, at a point topped to complain that it was made so. where the crossing over the railroad track could be made by an overhead bridge. Appellant Car

[3] It is also insisted for appellants that rick owns land along the Lemon's Mill pike the circuit court ignored the report of the abutting that portion of the pike sought to be commissioners and their exceptions thereto, vacated; and he and other remonstrants appears and tried the case as if it were an action ed in the county court and filed exceptions to the ordinarily originating in that court; and this report of the commissioners, which report was in favor of the proposed alteration. The county is assigned as error. The contention is withcourt overruled the exceptions, and ordered the out merit. It is true the exceptions to the alteration made. The remonstrants appealed commissioners' report were not taken up and to the circuit court. There a motion was made by the petitioners to dismiss the appeal upon the disposed of seriatim, but this was not necesground that the remonstrants had no right to sary, as every material issue of fact they prosecute an appeal from the order of the coun- raised was submitted to and determined by ty court. The circuit court sustained this mo- the jury under the court's instructions, and tion and dismissed the appeal; and of that ruls such questions of law as they raised were ing Carrick and the other remonstrants complain upon this appeal.

properly determined by the court. Section "We are therefore of the opinion that any per- 4303, Kentucky Statutes 1909, provides that son may appear and upon motion be made a party to the proceeding, and may resist the ap- upon an appeal of such a case from the counplication for the alteration of a public road, and ty court to the circuit court, it shall be tried that such person may appeal to the circuit court in the latter court de novo, and such method from the order entered by the county court." of trial seems to have been required by the

l'pon the trial in the circuit court, follow- opinion on the former appeal. If there had ing the filing therein of the mandate of this not been a trial de novo, it would have been court, to the jury was submitted the identical only necessary for the circuit court to deterissues presented by the exceptions filed by 'mine whether the order made by the county

*

*

court, establishing the alteration in the road, and their verdict is supported by the weight was warranted by the commissioners' report of the evidence; and, as the trial court comManifestly the hearing it de novo did not mitted no error in its rulings that can be said prejudice the rights of the appellants. They to be prejudicial to any of appellants' rights, insisted upon a de novo hearing, which the the judgment is affirmed. court accorded, permitting them to introduce all the evidence bearing upon the question whether the proposed alteration in the road

KENTUCKY DISTILLERIES & WARE: was feasible and desirable. It is patent,

HOUSE CO. v. WARWICK CO. * therefore, that the issues raised by appel (Court of Appeals of Kentucky. Nov. 11, 1915.) lants' exceptions to the commissioners' report were not ignored, but tried and deter

1. EASEMENTS Om61-WAYS-ACTIONS-Evi

DENCE. mined. If the act of 1912 (Laws 1912, c. 110)

In a suit to enjoin obstruction of a way, was applicable, there was no right of appeal evidence held to show that the prior use of the to the circuit court. On the other hand, if way had only been permissive and that it was the present statute were in force, the appeal not open to the public or a way of necessity. was triable in the circuit court de novo. The Cent. Dig. S$ 102, 130-144, 148; Dec.Dig. Om61.)

.
[Ed. Note.-For other cases, see Easements,

, opinion on the first appeal by necessary im

2. EASEMENTS Om 18-WAYS-WAYS OF NECESplication held that the present statute was

SITY. applicable, and directed that the appeal stood A warehouse abutting on a railroad track for trial de novo in the circuit court.

and surrounded on three sides by defendant's [4-6] Appellants' complaint of the amend- land was conveyed to plaintiff. At that time the ment of a clerical error in the report of the all of the warehouses, there being a passway on

way used over the tracks furnished access to commissioners after the case reached the cir- the property conveyed which led to the rear of cuit court is without merit. The error was the building. Thereafter plaintiff remodeled its patent, and the amendment should have been property including in the warehouse the passmade; indeed, was proper, in view of the way. Held that, though the change in the build

ing prevented access to the rear portion from the right of the parties to a trial de novo in the railroad track, plaintiff could not claim a way circuit court. Appellants' complaint of the of necessity over defendant's land, notwithstandrefusal of the peremptory instruction asked ing the rule that, where land conveyed is enby them is untenable, as the weight of the tirely surrounded by lands of a grantor, a way

of necessity is implied. evidence upon every issue was in favor of

[Ed. Note.-For other cases, see Easements, the petitioners. The objections to the in

The objections to the in Cent. Dig. $8 50–55; Dec. Dig. Om 18.] structions are likewise untenable. They fair-3. EASEMENTS C18 – WAYS OF NECESSITY ly and properly submitted to the jury every RIGHT TO. material issue of fact necessary to a correct In such case, way of necessity over defenddecision of the case.

ant's land cannot be had on the ground that the [7] So much of the judgment complained ed: there being no prospect of a revocation.

way across the railroad tracks might be revokof as required the erection of fencing across [Ed. Note.--For other cases, see Easements, the turnpike at the side of the railroad is not Cent. Dig. 88 50–55; Dec. Dig. Om 18.] open to the objection urged to it by appel- 4. EASEMENTS O17-CONVEYANCES—"APPUBlants. The matter to be determined was TENANCE. whether the alteration in the road was nec- derstood to mean the right to use those things

The word "appurtenances" is generally unessary and proper. The fencing was an in- which are essential to the full enjoyment of the cidental matter, which prevented the use of premises conveyed, therefore a conveyance of a the railroad crossing, forced travel to the warehouse with appurtenances will not carry road as altered, and protected the abandon with it the right to use a private way over the ed portion of the highway from being useded for plaintiff's full enjoyment of the premises.

grantor's land which at that time was not needby the public. Besides, such fencing was

[Ed. Note.-For other cases, see Easements, specifically asked in the application for the Cent. Dig. $$ 45-49; Dec. Dig. Om 17. closing of the road.

For other definitions, see Words and Phrases, It is apparent from the record before us First and Second Series, Appurtenance.] that appellants asked for a hearing in the 5. LICENSES C-58-WAYS-REVOCATION. circuit court before a jury, and it was given

Where defendant granted plaintiff license to them. They were permitted to plead and dition that it might be revoked at pleasure,

use way deny the material averments of the petition plaintiff's construction of a permanent way will for the alteration. Proof was heard as to not estop defendant from revoking the license. all issues presented by the pleadings, whereby

[Ed. Note. For other cases, see Licenses, the questions of convenience and inconven-Cent. Dig. 88 116-121; Dec. Dig. Om58.] ience, and of safety or danger from the clos- Appeal from Circuit Court, Madison ing of the old road and the establishment of County. the alteration were fully elucidated, from all Suit by the Warwick Company against the of which it appears that the alteration made Kentucky Distilleries & Warehouse Comis for the best interests of the citizens of pany. From the judgment for plaintiff, deScott county; in view of which we are un fendant appeals and plaintiff cross-appeals. able to see that any injustice was done the Reversed on the original appeal, and afappellants. The jury found against them,firmed on the cross-appeal.

Wm. Marshall Bullitt, of Louisville, for building covered the entire lot which was the appellant. J. A. Sullivan, of Richmond, and only land owned by the Warwick Company Barclay, Orthwein & Wallace, of St. Louis, on the east side of the railroad. When this Mo., for appellee.

improvement was made, the rear end of the

building—that is, the end farthest from the CARROLL, J. The dispute in this case railroad—was converted into a bottling house grows out of a controversy over the right and separated from the warehouse proper claimed by the appellee Warwick Company by a solid partition wall, and in the north to an easement over the land of the appel- wall of this bottling room a door was made lant, which will be called for convenience that furnished an entrance to the room." Aftthe Kentucky Company. It appears that in er the building had been thus divided into a 1871, or perhaps a few years before, the dis- warehouse and á bottling house, access could tillery now owned by the Kentucky Com- not be had to the bottling house through the pany was operated by W. S. Hume & Co. In warehouse; and so it was necessary, in tak1882 the distillery now owned by the War- ing barrels of whisky from the warehouse to wick Company was built near to the dis- the bottling house to be placed in bottles, to tillery established by Hume & Co., and for a take the barrels out of the front door of the couple of years these two distilleries were warehouse and carry them around the outowned and operated by the same people. In side wall to the door of the bottling house, 1884 the distillery properties were separated, and this, of course, made it necessary to the Warwick Company distillery passing into have a passway over the land of the Kenthe hands of the Bennetts and Burnams, and tucky Company. Under the impression that what is now the Kentucky Company dis- it did not have the passway as a matter of tillery into the hands of the Humes. In 1899 right over the land of the Kentucky Comthe Kentucky Company purchased the Hume pány along the north wall of the warehouse distillery, and in 1906 the Bernheim Dis- from the railroad to the door of the bottling tillery Company became the owners of the house, in April, 1908, the Warwick Company Warwick Company. All of this property is wrote to the Kentucky Company a letter in situated immediately on the Louisville & which said: Nashville Railroad Company. One ware- "The extreme end of the warehouse is to be house of the Warwick Company and the dis- used by us in the future for a bottling and bond tillery plant proper of the Kentucky Com- plant. We are forced, however, to have an openpany are situated on what may be called from your corporation sufficient room, say five to

ing fronting on your property, and also obtain the east side of the railroad, and the dis- seven feet, on your property, so as to permit our tillery proper of the Warwick Company and constructing a gangway giving us access from some of its warehouses, as well as ware- the front to the rear end of our warehouse. We houses of the Kentucky Company, are situ- ther to buy the necessary land at a reasonable

are willing, if it meets with your approval, eiated on the west side of the railroad; but, as price or to lease it." this controversy centers about the ware

In May, 1908, the Kentucky Company anhouse of the Warwick Company which is sit- swered this letter and said: uated on the east side of the railroad, it will

“We are quite willing to give you ingress and not be necessary to notice further the loca- egress to and from your bottling warehouse in tion of the other buildings of either company. the southeast corner of your warehouse adjoinThis warehouse was originally erected in ing our premises over a strip of land seven feet 1882. It fronted immediately on the proposaid warehouse, upon conditions that said strip

wide immediately northeast and alongside of erty line of the railroad company and was is not to be made a part of your distillery premsurrounded on the other three sides by the ises and that this consent to enable you to use land of the Humes now owned by the Ken- same may be canceled at our pleasure.” tucky Company. The building was in the Acting under the authority of this conshape of an ell and occupied the whole of sent, the Warwick Company constructed a the lot that was conveyed to the Warwick platform about seven feet wide along the Company in 1884, when the distillery prop- north side of the warehouse extending from erties were divided, except that between the the railroad to the door of the bottling dewall on the north side and the property line partment, and used this platform for the on the north side there was a vacant space purpose of taking whisky to and from the several feet wide that extended back about bottling house to the warehouse until 1911, 80 feet to the ell. And in the end of this when the Kentucky Company revoked the ell that fronted on the vacant space there consent it had given to use this passway; was a door. The only other doors in the and soon after that time this suit was building were in the end that opened on the brought by the Warwick Company to enjoin right of way of the railroad, and access to the Kentucky Company from interfering with the interior of this warehouse was generally its right to use this passway and to recover had through these end doors; but occasional- damages for its obstruction which began ly the door in the ell was used. In 1907 the when the license was revoked. After the Warwick Company remodeled this old ware-case was prepared for trial, the court adhouse building by making it several stories judged that the Warwick Company was enhigher and taking in the vacant strip of titled to a passway leading from the right of

its warehouse to its bottling house in the ending on that part of the lot not occupied of the warehouse, and the Kentucky Com- by the warehouse building; but the use of pany was enjoined from its obstruction. It this door was merely desultory and occasionwas further adjudged that the Warwick Com- al, and there seems to have been no necespany should remove the plank platform plac-sity for its use, as ample ingress and egress ed on this passway after it obtained the con- to and from the warehouse building could sent before mentioned; and also adjudged be had through the main entrance at the that the Warwick Company was not entitled front. But when this entrance at the ell to any damages for the deprivation of the was used, there was no objection by the use of this passway during the time it was Humes to the use of this road that passed obstructed. From this judgment the Kentucky close by this entrance. Company appeals, and the Warwick Company

[1] It is very clear, we think, from the prosecutes a cross-appeal, insisting that the evidence, that the use of this road by the court erred in not awarding it damages on Bennetts and Burnams was entirely permisaccount of the obstruction of its right to sive.

It was merely an occasional use by use the passway between the time of the ob- them, not a way of necessity, and this occastruction and the filing of the suit, when the sional use was never objected to by the use of the passway was secured by a tem- Humes, who, as stated, were on terms of porary injunction.

intimacy with the Burnams and Bennetts. In the view we have of this case the only The public generally did not use this road, question that needs to be disposed of is the as it passed entirely over the land of the right of the Warwick Company to this pass- Humes and was intended as a passway for way. The Kentucky Company contends on the benefit of the farm and distillery propthis appeal that the use of this passway erties owned by them. The only one of the was merely permissive, and that it had the public appearing to have claimed the right right to revoke, as it did, the privilege grant- to use this road is a man named Baldwin, ed in the letter of May, 1908; while the who, in 1905, purchased a part of the Hume Warwick Company insists that, independent of this permission, it had the right to the farm and used this road, as he claimed, as a of this permission, it had the right to the matter of right in going to and from his use of this passway, as the land over which matter of right in going to and from his it ran (1) had been dedicated to public use;

farm. Our conclusion is that the assertion (2) was granted to it by an implication of of the Warwick Company that this road was law; (3) was a way of necessity; (4) was dedicated to the public, and therefore it had conveyed to it under the term “appurtenanc- the right to use it as a means of ingress and es" used in the deed.

egress to and from its bottling house, is not From the time these two distilleries were sustained by the evidence. In reaching this erected until the sale of what may be called conclusion we do not treat the letter of the the Hume property to the Kentucky Com

Warwick Company, requesting permission to pany in 1899, and the sale of what may be use this passway, as an acknowledgment called the Bennett and Burnam Company to that the right did not previously exist, or as the Bernheims in 1906, they were owned by a confession that the privilege of using it the Bennetts, Burnams and Humes, all of was obtained only by virtue of and under whom, aside from being related to each oth-this written consent. It is, however, a cirer, were on terms of intimacy; and during cumstance tending to confirm our opinion the time the property was owned by these that the Warwick Company recognized the people there appears to have been no objec- fact that it was not entitled as a matter of

a tion by any of them to the use of the land right to the use of this passway, although

, of the other for passway purposes.

It is not conclusive of this question; for, if a further shown that probably as far back person has the right to the use of a passway, as 1880 the Humes had made for their con

the mere fact that he does not understand venience a passway or road extending from or appreciate the extent of his right, and Silver creek along the north side of this consequently seeks and obtains a permissive warehouse building to the railroad, and thence use, his effort to obtain permission will not to the Richmond and Lancaster turnpike. deprive him of the use to which he was enAfter 1884, when the distillery property was titled without the permission. divided and the warehouse in question pass

[2, 3] As we have stated, this entire lot is ed into the hands of the Bennetts and Bur- now occupied by the new warehouse consistnams, they had little occasion to use this ing of the warehouse proper and the bottling road, which was on the land of the Humes house and is surrounded on three sides by and several feet from the north wall of the the land of the Kentucky Company, and the warehouse. The Bennetts and Burnams did argument is made that, where land conveyed not own any land on the east side of the is entirely surrounded by the lands of the railroad besides the lot on which this ware- grantor, the grant of a right of way as a house was situated, and access to the ware- necessity over the land of the grantor to and house, except on rare occasions, was had from the land conveyed will be implied as through the doors in the end fronting on the a matter of law. Estep v. Hammons, 104 railroad. Occasionally, however, use was Ky. 144, 46 S. W. 715, 20 Ky. Law Rep. 448; Dec. 541; Beall v. Clore, 6 Bush, 676; Halltween the warehouse proper and the bottling v. McLeod, 2 Metc. 98, 74 Am. Dec. 400. house so that there was no way of getting

We are not disposed to question the cor- to the bottling house except over the land of rectness of this principle, but do not find it the Kentucky Company. It is therefore obviapplicable to the case we have. At the time ous that, if the use of the passway over the the vendors of the Kentucky Company con- land of the Kentucky Company is now necesveyed to the Warwick Company the land on sary to give the Warwick Company access which this warehouse was situated, it was to its bottling house, this necessity was volnot necessary to the use of the warehouse untarily created by the Warwick Company. that there should be an entrance on the north A right of way over the land of the Kenside, or, indeed, on any side of the building tucky Company was not necessary to the use except the end fronting on the railroad where of the warehouse or any part of it when the the principal doors that opened into the ware-conveyance was made or until many years house were located. At this time the entire afterwards when the improvements were building was used for warehouse purposes, made. and full and free ingress and egress to and Now we think that when a grantor conveys from all parts of the building could be had land to which the grantee has a way that furthrough the doors in the end fronting on the nishes him full and free access to the propright of way of the railroad, and these doors, erty conveyed, and the grantee thereafter with rare exceptions, were used as a means voluntarily closes up this way or deprives of ingress and egress. But if it should be himself of its use, he cannot claim by implisaid that the door in the ell on the north side cation of law another right of way over the of the building was occasionally used, and land of the grantor. 14 Cyc. 1175; Mitchell that access to this door was necessary in the v. Seipel, 53 Md. 251, 36 Am. Rep. 404. proper use of the building, the Warwick [4] It is further said that, as the deed to Company had access to this door over its the Warwick Company conveyed the land own land. It could pass from the railroad and “all the appurtenances thereto belongover that part of its lot not occupied by the ing,” the right to the use of this road passed building and go into the door in the ell. It as one of the appurtenances. The word "apis true there was a coal shed, and perhaps purtenances” is generally understood to mean another little building, on the end of this the right to the use of those things that are vacant space next to the railroad; but these essential to the full enjoyment of the prembuildings could easily have been taken away, ises conveyed and which were used as necand then there would have been ample room essary incidents thereto at the time of the over its own land for access from the right conveyance. Bouvier's Law Dictionary ; of way of the railroad to this door in the Parsons v. Johnson, 68 N. Y. 62, 23 Am. Rep. ell.

149. But as we have endeavored to point There is, too, some claim that the use of out, this passway was not necessary to the the railroad right of way was merely permis- full enjoyment of the property conveyed at sive, and that, if the railroad should prevent the time of the conveyance. It was not an the use of its right of way, ingress and egress incident or an appurtenance to it. It was to and from the building would be entire- not mentioned in any manner in the deed, and ly closed unless it could be had along this we may assume was not in the contemplation passway.

But we find no merit whatever of the parties when the conveyance was in the claim that there is any probability made. that the right of ingress and egress over [5] It is further suggested that the Kenthe right of way of the railroad will ever be tucky Company is estopped to deny the Warinterfered with. So that when the ground wick Company the use of this passway upon occupied by this warehouse building was con- the ground that the Kentucky Company saw veyed by the grantors of the Kentucky Com- the improvements being made by the Warpany to the Warwick Company in 1884, and wick Company and knew that these improve continually from that time until 1907, after ments would make indispensable this passthe property had been acquired by the Bern- way in the use of the bottling house, but did heims, there was at all times an uninterrupt- not intimate that it would attempt to deprive ed way of ingress and egress to and from it of the use of the passway. A sufficient anthis warehouse building, and all parts of it, swer to the assertion of estoppel is that the without going upon the land of the grantor. Warwick Company obtained permission to But after the Bernheims acquired this prop- use this passway with the express undererty in 1906 they proceeded to rebuild and standing that the permission might be reextend the walls of the warehouse until they voked at any time. In view of this fact, it covered the entire lot, leaving the doors in cannot be said that the Warwick Company the end of the building fronting on the rail- made the improvements ignorant of the fact road as the only way of entrance to it unless that it might be deprived of the use of the a way was had over the land of the Kentucky passway at the will of the Kentucky ComCompany. In addition to this, they converted pany. the rear end of the warehouse building into Upon the whole case, our conclusion is that