he necessarily had to be on the track when trains were approaching. In the daytime it would be an easy matter to see the train, but if it was dark, and no headlight was maintained, he would be deprived of the best, and in many instances the only, means of seeing the train. In view of the fact that the law casts on such an employé the duty to discover the train and keep out of its way, it seems to us that there is a corresponding duty on the part of the railroad company to furnish the means by which an approaching train may be discovered. If the rule were otherwise, either the greater portion of such an employé's time would be consumed in idleness, or he would be in constant danger of being run over in the nighttime by trains which he could not see in time to get out of their way. We therefore conclude that the trial court did not err in holding that the company owed to the deceased the duty of maintaining a headlight on its engine (C., N. O. & T. P. Ry. Co. v. Yocum's Adm'r, supra), and, in authorizing a recovery if its failure to do so was one of the contributing causes of his death.

ing his duties. To this end it was necessary, tions under which he worked were such that for the tricycle to be conveniently near so that it could be used. It is not, therefore, to be presumed that his right to use it ended when he had inspected the signals. If this were the case, then the decedent, though several miles from home, would have had to remove the tricycle from the track, leave it unprotected, and either walk to his home or take the chance of catching a train. Not only so, but the next morning it would have been necessary for him to consume the time which he should have devoted to the performance of his duties in returning to the place where the tricycle was left. Hence we conclude that deceased's right to use the tricycle in returning to his home was fairly inferable from the fact that it was furnished him for the purpose of facilitating the performance of his work. We further conclude that his homeward journey was a necessary incident of his day's work, and that at the time of his death he was discharging a duty of his employment. And since the defendant was an interstate carrier, and deceased was engaged in work necessary to facilitate the movement of interstate trains, there can be no doubt that the company was engaged, and he was employed, in interstate commerce at the time of his death within the meaning of the federal Employers' Liability Act. Erie R. Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057; North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; C., N. O. & T. P. Ry. Co. v. Bonham, 130 Tenn. 435, 171 S. W. 79; Louisville & N. R. R. Co. v. Walker's Adm'r, 162 Ky. 209, 172 S. W. 517. [2] There was sufficient evidence that the headlight was not burning, and that the absence of the headlight was one of the contributing causes of the death of the deceased, to make this question one for the jury, so it is necessary to determine whether the company was negligent in this respect. It may be conceded that a railroad company does not owe to an employé such as deceased the duty to run its trains at a reasonable speed, or to give warning of their approach, or to keep a lookout. C. & O. Ry. v. Lang's Adm'r, 135 Ky. 76, 121 S. W. 993; L., H. & St. L. Ry. Co. v. Jolly's Adm'r, 90 S. W. 977, 28 Ky. Law Rep. 989; C., N. O. & T. P. Ry. Co. v. Yocum's Adm'r, 137 Ky. 117, 123 S. W. 247, 1200. It may further be conceded that a railroad company does not owe to a trespasser the duty of maintaining a headlight on its engine. Eastern Kentucky Ry. Co. v. Powell, etc., 33 S. W. 629, 17 Ky. Law Rep. 1051. Here, however, the deceased was neither a trespasser nor a bare licensee, but an employé who was rightfully on the track. While it is true that it was his duty to exercise ordinary care to learn of the approach of trains and to keep out of their way, yet the nature of his employment and the condi

[3] The argument that a peremptory should have gone because the deceased was guilty of contributory negligence in not ascertaining from his time card or from the signal lights that a train was on the block which he had entered loses its force when it is decided that the company in not maintaining a headlight was guilty of negligence contributing to his death. Under these circumstances the contributory negligence of the deceased did not defeat the cause of action, but only lessened the damages. It is only where the negligence of the deceased is the sole cause of his death that the defendant is free from liability under the federal Employers' Liability Act. Louisville & N. R. R. Co. v. Heinig's Adm'r, 162 Ky. 14, 171 S. W. 853; PennC. C. A. 244; Grand Trunk R. Co. v. Lindsylvania R. R. Co. v. Cole, 214 Fed. 948, 131 C. C. A. 244; Grand Trunk R. Co. v. Lindsay, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. Ed.

838, Ann. Cas. 1914C, 168.

does not apply if the defendant was guilty [4] Of course the doctrine of assumed risk of negligence in not maintaining a headlight, for the servant never assumes the risk of the master's negligence unless he knows of

the negligent act and appreciates the danger,

or the negligent act and consequent danger are so obvious that a person of ordinary prudence in his situation would have observed the one and appreciated the other. Chesapeake & O. R. Co. v. De Atley, 241 U. S. 310, 36 Sup. Ct. 564, 60 L. Ed. 1016. Here there was not the slightest opportunity to observe the absence of a headlight and appreciate the danger. On the contrary, the danger itself was created and concealed by the negligent act of the defendant.

The instruction on the measure of damages conforms substantially to the rule laid

down in Chesapeake & O. R. Co. v. Kelly, 241 [ down of the water system, and the work of U. S. 485, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367, and the other instructions are not subject to complaint. Judgment affirmed.

(181 Ky. 86)

operating its line of railway has been greatly interfered with. Plaintiff desires to struct, maintain, and operate its own water system by constructing a pumping station on its own property at Licking river and laying pipes and mains from the pumping station along its own right of way to its

LOUISVILLE & N. R. CO. v. CITY OF shops in Covington, Latonia, and at De Cour

COVINGTON et al.

(Court of Appeals of Kentucky. June 11, 1918.) RAILROADS 79-CONSTRUCTION OF WATER MAINS-CONSENT OF CITY.

Appeal County.

from Circuit Court; Kenton

Suit by the Louisville & Nashville Railroad Company against the City of Covington and others for an injunction. From a decree dismissing the petition, complainant appeals. Affirmed.

Benjamin D. Warfield, of Louisville, and S. D. Rouse, of Covington, for appellant. A. E. Stricklett, of Covington, for appellees.

sey. To this end it is planned to lay water pipes to a depth of from 18 inches to 2 feet under the surface of 14 streets in the city of Covington. In crossing said streets it will do so with as little interruption to, and interference with, traffic as is possible, and such interference will be of a brief and tem

Ky. St. 768, subsec. 5, conferring upon railroad companies the power to construct roads upon or across roads, highways, or streets upon such "terms and conditions as shall be agreed upon between the corporation and the authori-porary character, and the surface of said ties of any city in which the same may be," does streets will be restored to their original connot authorize a railroad company to construct a dition by the company. Therefore plaintiff private system of water mains along its right of way and across street to supply water for its represented the foregoing facts to the city own purposes, without the consent of the city, of Covington and its commissioners, and and hence an injunction by the railroad against applied for leave to construct its water the city from interfering with such construc- mains under the streets in question, but the tion will not lie. city and its commissioners refused to grant it permission to do so upon the ground that plaintiff should not be permitted to furnish its own supply of water within the city of Covington, and for the further reason that they would not grant any privileges or permits of any sort to plaintiff. Said refusal on the part of the city of Covington and its commissioners was wanton, wanton, willful, and without justification. By reason of the great demand made made upon upon it for transporting freight and passengers, it is compelled to own its own water system, and is about to begin the laying of said mains along its right of way and across the streets in question. By reason of the refusal of the defendants to permit it to construct said system, plaintiff will suffer great and irreparable injury, and unless defendants are restrained, they will undertake by force to prevent plaintiff from constructing its water system and laying its mains in the manner proposed. Subsection 5, § 768, Kentucky Statutes, confers upon railroad companies the power"to construct its road upon or across any water course, private or plank road, highway, street, lane or alley, and across any railroad or water course, private or plank road, highway, canal; but the corporation shall restore the street, lane, alley, railroad or canal to its former condition, as near as may be, and shall obstruct any public highway or street, by cars not obstruct the navigation of any stream, or or trains for more than five minutes at any one time; and shall construct suitable road and street crossings for the passage of teams by between and on each side of the rails, the top putting down planks or other suitable material of which shall be at least as high as the top of the rails of such road or street; and in case the road is constructed upon any public street or alley, the same shall be upon such terms and conditions as shall be agreed upon between the corporation and the authorities of any city in which the same may be, but such road shall not be constructed upon any public street or alley until compensation shall be made by the corporation therefor to the owner

CLAY, C. The Louisville & Nashville Railroad Company brought this suit to enjoin the city of Covington and its mayor and commissioners from interfering with it in laying a water main from a point on the Licking river on its own property along its right of way and under certain streets in the city of Covington. A demurrer was sustained to the petition, and the petition dismissed. The railroad company appeals.

The allegations of the petition are, in substance, as follows: Plaintiff is a trunk line railway and a common carrier. In the maintenance and operation of its business it maintains railway yards, machine shops, roundhouses, etc., in the city of Covington and in Latonia, which is a part of the city of Covington. It also maintains large yards with repair and machine shops at De Coursey, four miles south of Covington. In the operation of its railroad it is compelled to use great quantities of water, and has no means of supplying itself with water in the yards and shops at De Coursey except by a system constructed and maintained by itself. It is now using, in its yards and shops in the city of Covington and Latonia, water furnished by the city of Covington. The supply of water thus furnished has been wholly inadequate, and at times the supply has been entirely cut off by reason of the breaking

of the property adjoining such street or alley, I made October 27, 1911, was an incorrect stateand opposite where such road is to be constructed, either by agreement or in the manner provided by law."

ment, so that there was no basis for the con-
tention that the patent was void, because the
warrant was granted after the survey was made,
contrary to Ky. St. § 4703, under which a valid
entry and survey cannot be made until a war-
rant authorizing them has been issued by the
county court.
37(3)-LOCATION OF COR-
NER-SUFFICIENCY OF EVIDENCE.

3. BOUNDARIES

for lands, evidence held to sustain the chanIn an action involving priority of patents cellor's finding that the proper location of the beginning corner of the earlier patent, described as a "small oak upon a fork point near the top of the divided ridge between Hurricane and Sandy river," was an oak stump, as claimed by the defendants.

Appeal from Circuit Court, Pike County. Action by W. G. Meade and others against the Steele Coal Company and others. Judgment for defendants, dismissing the petition. and plaintiffs appeal. Affirmed in part, and reversed in part.

P. B. Stratton, of Pikeville, and William Akers, of Dana, for appellants. Ed. W. Pendleton and W. G. Fleu, both of Prestonsburg, E. D. Stephenson, of Pikeville, Allie W. Young, of Moorehead, and Ed. C. O'Rear, of Frankfort, for appellees.

The argument in behalf of the railroad company is as follows: The above statute not only confers the power to construct its road across any street of the city, but the incidental power to make any use of the street necessary for the successful operation of the road that will not interfere with the use of the street by others, and therefore the right to lay water mains underneath and across the, streets for the purpose of supplying the water necessary for its shops, engines, and cars. That being true, the city may not arbitrarily refuse to grant the privilege; and, if it does, the company may proceed with the work and enjoin the city and its officers from interfering therewith. It will be observed that the statute does not confer upon the railroad company the absolute right to construct its road upon or across any street, but the right to do so "upon such terms and conditions as shall be agreed upon between the corporation and the authorities of any city." In other words the statute provides that the city shall have a voice in fixing the terms and conditions, and does not authorize the company to proceed with the work until the terms and conditions have in some way been agreed upon by the parties. That being true, the company, upon the mere rejection of its own terms and conditions, cannot proceed to lay its water mains and enforce its right by enjoining the city authorities from interfering with the work. But if it be conceded that the city may not arbitrarily refuse to agree upon terms and conditions, but is un-pany, which company was made a party deder the mandatory duty of agreeing upon reasonable terms and conditions, a question not decided, then the company's only remedy, if it has one, is by mandamus or mandatory injunction to compel the city authorities to exercise their discretion in good faith. follows that the demurrer to the petition

was properly sustained.

Judgment affirmed.

(181 Ky. 153)

It

MEADE et al. v. STEELE COAL CO. et al. (Court of Appeals of Kentucky. June 18,

CLARKE, J. On September 16, 1913, appellant, W. G. Meade, instituted this action in the Pike circuit court to enjoin appellee, Steele Coal Company, from mining and removing coal from 30 acres of land, the title to which was claimed by Meade under a patent granted to him by the commonwealth August 20, 1912. The Steele Coal Company answered, claiming the right to mine coal from the land described in the Meade patent under a lease from the Elk Horn Fuel Com

fendant and answered, claiming title to the land through mesne conveyances from Charles Trout, to whom a patent for 190 acres of land was granted by the commonwealth in 1846. Defendants also claimed title by adverse possession, and attacked Meade's patent as being void upon its face. The allegations' of the several answers were traversed by reply, proof was taken, and, upon submission, judgment was entered, dismissing the petition, and plaintiffs have appealed.

The two questions for decision are: Whether Meade's patent is void, and what is the proper location of the Trout patent. [1, 2] 1. Although this is plainly a collater1. PUBLIC LANDS 151(6)-PATENT-COL-al attack upon the patent, it is nevertheless

LATERAL ATTACK.

1918.)

A collateral attack upon a land patent granted by the commonwealth is authorized, where the basis of the attack is that the patent shows upon its face that it is void. 2. PUBLIC LANDS 151(6)-PATENT-VALIDITY-SURVEY.

authorized, since the basis of the attack is that the patent shows upon its face that it is void. The patent recites that it was issued Pike county court land warrant No. 1716, isby virtue and in consideration of part of a A certified copy of the original warrant, sued to W. G. Meade, assignee of P. B. Stratshowing that it was issued March 22, 1911, to ton, dated December 2, 1911, and 'a survey a patentee and assigned by him on June 27, made thereunder of date October 27, 1911. 1911, to plaintiff, established that the recitation in the patent that it was granted upon a It will be noticed that it is stated in the patwarrant issued December 2, 1911, on a survey ent that the survey was made more than a

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

month prior to the issuance of the warrant, for plaintiffs and defendants showing the under which the entry and survey were au- topography of the land and the locations thorized; and it is insisted for appellees that claimed by the parties; and, while the loa valid survey could not be made in advance cations of the patent are quite different, of the issuance of a warrant authorizing it. there are no essential differences topographIn support of this contention, we are refer- ically, and the top of the dividing ridge bered to Mason v. Fuson, 171 Ky. 111, 186 S. tween Hurricane and Sandy river is shown W. 891, wherein, in discussing the validity or alike on both maps; the small oak called invalidity of certain Thickston entries and for upon a fork point near the top of this ridge surveys under section 4703, Kentucky Stat- being located upon different spurs or fork utes, it is said that: points leading off from the dividing ridge.

"The *** entries and surveys are therefore, as shown by this record, lacking in the first essential to their validity. A valid entry and survey cannot be made, of course, until a warrant authorizing same has been issued by the county court."

In that case there was no proof that any warrant, authorizing the entries and survey, had ever been issued, and the question whether a warrant could be issued after the survey had been made was not there considered. All that was decided was that a valid entry and survey could not be made in the absence of a warrant authorizing same. While we see no reason now to doubt the accuracy of the statement that a warrant is the first essential to the validity of an entry and survey, and that they cannot be made until a warrant authorizing same has been issued by the county court, it is not necessary to a decision of this case, as it was likewise unnecessary in the decision in Mason v. Fuson, to decide whether or not a warrant issued subsequent to the entry and survey could give validity to the previously made entry and survey; and we prefer to leave that question open.

While the patent to Meade recites that it was granted upon warrant No. 1716, issued December 2, 1911, and survey made thereun

der October 27, 1911, a certified copy of the original warrant was introduced, and it shows that it was, in fact, issued March 22, 1911, to P. B. Stratton and assigned by Stratton June 27, 1911, to Meade. It is therefore

For plaintiffs, an oak standing on the side and near the top of a spur some 300 feet from the top of the dividing ridge is claimed to be the beginning corner called for; while, for the defendants, a large oak stump located upon another spur, or fork point, and only about 100 feet from the top of the dividing ridge, is claimed to be the beginning corner. It will be seen that the oak stump, claimed by defendants to be the beginning corner, more nearly accords with the description that it is near the top of the dividing ridge than does the small oak for which plaintiffs contend; and, from the maps, the spur upon which the oak stump is located seems to us to more nearly answer the description of a fork point, since this spur approaches more nearly to and points more directly at a fork in the low gap or Damron branch than does the spur upon which is located the small oak. And the fact that this survey was made in 1846 suggests the probability that the oak, then described as a small oak, would now be a tree of the dimensions of the oak stump rather than the oak claimed by plaintiffs, now about 20 inches in diameter.

than the oak tree is demanded by the evidence The adoption of the oak stump rather of Judge Tobias Wagner, his son, N. L. Wagner, John Stevens, Thomas Stevens, and John S. Lowe, who testified that different portions of the land in controversy, which would be included in the Trout survey if it began at the oak stump claimed as the conclusively established that the recitation in the patent, upon which appellees rely to beginning corner by defendants, and would prove its invalidity, is not a correct state- be excluded if it began at the small oak tree ment of the facts, as appears from the warrant which is recorded in the Land Office and attached to the plat and certificate upon which the patent issued. There is therefore no basis for the contention that the Meade patent is void.

claimed by plaintiffs, had been claimed and were recognized in the neighborhood as belonging to defendants' predecessors in title under the Trout patent, and that these claimants had, at different times, removed timber from and cultivated portions of this land.

We also think that the evidence as to the proper location of the Lazarus Damron 50acre survey, which is senior to and binds upon the Trout survey upon the south, the two surveys having several common calls,

[3] 2. Having decided that the Meade patent is not void, and it being conceded that it covers the land in controversy, we now come to a decision of the question of whether or not the older Trout patent, under which appellees claim, covers the land in contro- supports the contention of defendants, since troversy, which is purely a question of fact. the plaintiffs' location of that survey places This question depends almost entirely upon an oak stump corner on the west rather the proper location of the beginning corner than on the east side of Hurricane creek, and of the Trout patent, described as "a small an elm corner nearly 200 feet below the resioak upon a fork point near the top of the di- dence of Lazarus Damron on Low gap or viding ridge between Hurricane and Sandy Damron branch, whereas, that patent neces

east side of Hurricane creek and the elm by plaintiffs and described it as the beginopposite the residence of Lazarus Damron, as does defendants' location of it.

The only undisputed corner in the Charles Trout survey is an ash upon a ridge upon the other side of the survey from the beginning corner, and is not helpful in locating the disputed lines, since in reversing the lines of the survey and running from this ash to the beginning corner, the reversed calls run out at a point between and nearly equally distant from the locations claimed by the parties, and the lines do not seem to have been run out on the ground the other way from the ash to the beginning corner.

ning corner of the Trout survey; and that in several conveyances in defendants' chain of title to other lands this oak is referred to as a corner of the Trout survey, but these facts, while evidence favorable to plaintiffs' contention, are not at all conclusive.

Upon all of the evidence, which it will be seen is quite conflicting, we rather incline to the opinion of the chancellor that the location claimed by defendants is correct, although our minds are not without some doubt upon the question, and under such circumstances there can be no doubt of our duty to uphold the decision of the chancellor. Shelton v. Shelton, 167 Ky. 167, 180 S. W. 83: Salyers v. Elk Horn Land & Imp. Co., 167 Ky. 111, 180 S. W. 38; Gragg v. Barton's Adm'x, 161 Ky. 210, 170 S. W. 621; Leibel v. Tandy, 146 Ky. 101, 141 S. W. 1183; Stone v. Middleton, 144 Ky. 284, 137 S. W. 1047; Gilliam v. Guffy, 142 Ky. 631, 134 S. W. 1162; Williams v. Paintsville Natl. Bank, 143 Ky. 781, 137 S. W. 535, Ann. Cas. 1912D, 350; Eversole v. Holliday, 131 Ky. 202, 114 S. W. 1195, and many other cases.

For the plaintiffs, it is claimed that the location asserted by them accords more nearly in shape to the recorded plat of the original survey than does that of the location claimed by defendants, but there is little difference in the shape of the two maps, certainly not enough to warrant the selection of one location rather than the other; and the real difference between the locations is that that claimed by plaintiffs is south of that claimed by defendants about the distance of the width of plaintiffs' survey, and plaintiffs' location seems to us to rest upon an unwarranted shifting toward the south, not only the beginning corner of the Trout survey, but also the lines of the Lazarus the Trout patent established their title to all Damron 50-acre survey, the James Damron 75-acre survey, and the Pike County Seminary survey, all of which are older than the Trout survey.

The evidence of the surveyors for both plaintiffs and defendants, as well as that of another surveyor, Mr. Amick, with reference to how the respective surveys conform to the lay of the land, is rather persuasive, although not at all conclusive, of the correctness of the defendants' location of the Trout survey. The evidence of the plaintiff W. G. Meade, his brother, John L. Meade, G. L. Justice, and Isaac Luster, especially the last named, tend strongly to support plaintiffs' contention as to the proper location of the Trout survey, and plaintiffs rely especially upon the fact that Bud Stevens and his son, Ira Stevens, who at one time owned a part of the Trout survey, made a survey of 11 acres in 1905, beginning at the oak claimed

3. It will not be necessary for us to consider the defendants' claim to any of the land in controversy under a right of pre-emption or adverse possession, since the location of

of the land involved except about 2 acres of the land covered by the Meade patent and outside of the Trout patent, and as to this small tract, which is, located in the extreme northwestern corner of the Meade survey and adjoining the William Weddington 225-acre survey, the Polly R. Price survey, and the Trout survey, the defendants have no sort of claim. Therefore as to that part of the land in controversy plaintiffs are entitled to the relief asked for, and to that extent the judgment of the chancellor is erroneous, and will be reversed.

Wherefore the judgment is affirmed in so far as it sustains the location of the Trout survey claimed by defendants, and reversed in so far as it denied plaintiffs the relief they sought with reference to the small tract of land in the northwestern corner of the Meade survey and not included in the Trout patent as located.