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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 he necessarily had to be on the track when that it could be used. It is not, therefore, to trains were approaching. In the daytime it be presumed that his right to use it ended would be an easy matter to see the train, but when he had inspected the signals. If this if it was dark, and no headlight was mainwere the case, then the decedent, though sev- tained, he would be deprived of the best, eral miles from home, would have had to re- and in many instances the only, means of move the tricycle from the track, leave it un- seeing the train. In view of the fact that protected, and either walk to his home or the law casts on such an employé the duty take the chance of catching a train. Not to discover the train and keep out of its way, only so, but the next morning it would have it seems to us that there is a corresponding been necessary for him to consume the time duty on the part of the railroad company to which he should have devoted to the perform- furnish the means by which an approaching ance of his duties in returning to the place train may be discovered. If the rule were where the tricycle was left. Hence we con- otherwise, either the greater portion of such clude that deceased's right to use the tricycle an employé's time would be consumed in in returning to his home was fairly infera- idleness, or he would be in constant danger ble from the fact that it was furnished him of being run over in the nighttime by trains for the purpose of facilitating the perform- which he could not see in time to get out of ance of his work. We further conclude that their way. We therefore conclude that the his homeward journey was a necessary inci- trial court did not err in holding that the dent of his day's work, and that at the time company owed to the deceased the duty of of his death he was discharging a duty of maintaining a headlight on its engine (C., N. his employment. And since the defendant 0. & T. P. Ry. Co. y. Yocum's Adm'r, supra), was an interstate carrier, and deceased was and, in authorizing a recovery if its failure engaged in work necessary to facilitate the to do so was one of the contributing causes movement of interstate trains, there can be of his death. no doubt that the company was engaged, and [3] The argument that a peremptory should he was employed, in interstate commerce at have gone because the deceased was guilty of the time of his death within the meaning of contributory negligence in not ascertaining the federal Employers' Liability Act.

Erie from his time card or from the signal lights R. Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. that a train was on the block which he had

. , . 556, 61 L. Ed. 1057; North Carolina R. Co. entered loses its force when it is decided v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, that the company in not maintaining a head58 L. Ed. 591, Ann. Cas. 1914C, 159; 0., N. 0. light was guilty of negligence contributing to & T. P. Ry. Co. v. Bonham, 130 Tenn. 435, his death. Under these circumstances the 171 S. W. 79; Louisville & N. R. R. Co. v. contributory negligence of the deceased did Walker's Adm'r, 162 Ky. 209, 172 S. W. 517. not defeat the cause of action, but only les

[2] There was sufficient evidence that the sened the damages. It is only where the headlight was not burning, and that the ab- negligence of the deceased is the sole cause sence of the headlight was one of the con- of his death that the defendant is free from tributing causes of the death of the deceased, liability under the federal Employers' Liato make this question one for the jury, so it bility Act. Louisville & N. R. R. Co. v. Heiis necessary to determine whether the com- nig's Adm’r, 162 Ky. 14, 171 S. W. 853; Pennpany was negligent in this respect. It may c. C. A. 244; Grand Trunk R. Co. v. Lind

sylvania R. R. Co. v. Cole, 214 Fed. 948, 131 be conceded that a railroad company does not owe to an employé such as deceased the duty say, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. Ed.

838, Ann. Cas. 1914C, 168. to run its trains at a reasonable speed, or to give warning of their approach, or to keep a does not apply if the defendant was guilty

[4] Of course the doctrine of assumed risk lookout. C.

c. & 0. Ry. v. Lang's Adm'r, 135 of negligence in not maintaining a headlight, Ky. 76, 121 S. W. 993; L., H. & St. L. Ry. for the servant never assumes the risk of Co. v. Jolly's Adm'r, 90 S. W. 977, 28 Ky. the master's negligence unless he knows of Law Rep. 989; C., N. 0. & T. P. Ry. Co. v. the negligent act and appreciates the danger, Yocum's Adm'r, 137 Ky. 117, 123 S. W. 247, or the negligent act and consequent danger 1200. It may further be conceded tbat a are so obvious that a person of ordinary prurailroad company does not owe to a tres-dence in his situation would have observed passer the duty of maintaining a headlight the one and appreciated the other. Chesaon its engine. Eastern Kentucky Ry. Co. v. peake & 0. R. Co. v. De Atley, 241 U. S. Powell, etc., 33 S. W. 629, 17 Ky. Law Rep. 310, 36 Sup. Ct. 564, 60 L. Ed. 1016. Here 1051. Here, however, the deceased was nei- there was not the slightest opportunity to ther a trespasser nor a bare licensee, but an observe the absence of a headlight and apemployé who was rightfully on the track. preciate the danger. On the contrary, the While it is true that it was his duty to ex-danger itself was created and concealed by ercise ordinary care to learn of the approach the negligent act of the defendant. of trains and to keep out of their way, yet The instruction on the measure of damthe nature of his employment and the condi- ages conforms substantially to the rule laid

.

down in Chesapeake & 0.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, operating its line of railway has been greatly L. R. A. 1917F, 367, and the other instruc- interfered with. Plaintiff desires to contions are not subject to complaint.

struct, maintain, and operate its own water Judgment affirmed.

system by constructing a pumping station

on its own property at Licking river and (181 Ky. 86)

laying pipes and mains from the pumping LOUISVILLE & N. R. CO. v. CITY OF shops in Covington, Latonia, and at De Cour

station along its own right of way to its COVINGTON et al.

sey. To this end it is planned to lay water (Court of Appeals of Kentucky. June 11, 1918.) pipes to a depth of from 18 inches to 2 feet

under the surface of 14 streets in the city RAILROADS Om79-CONSTRUCTION OF WATER MAINS-CONSENT OF CITY.

of Covington. In crossing said streets it Ky. St. § 768, subsec. 5, conferring upon will do so with as little interruption to, and railroad companies the power to construct roads interference with, traffic as is possible, and upon or across roads, highways, or streets upon such interference will be of a brief and temsuch "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 represented the foregoing facts to the city way and across street to supply water for its 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 Appeal from Circuit Court; Kenton it permission to do so upon the ground that County.

plaintiff should not be permitted to furnish Suit by the Louisville & Nashville Rail- its own supply of water within the city of road Company against the City of Covington Covington, and for the further reason that and others for an injunction. From a decree they would not grant any privileges or perdismissing the petition, complainant appeals. mits of any sort to plaintiff. Said refusal on Affirmed.

the part of the city of Covington and its Benjamin D. Warfield, of Louisville, and commissioners was wanton, willful, and S. D. Rouse, of Covington, for appellant. without justification. By reason of the great A. E. Stricklett, of Covington, for appellees. demand made upon it for transporting

freight and passengers, it is compelled to own CLAY, O. The Louisville & Nashville its own water system, and is about to begin Railroad Company brought this suit to en- the laying of said mains along its right of join the city of Covington and its mayor and way and across the streets in question. By commissioners from interfering with it in lay- reason of the refusal of the defendants to ing a water main from a point on the Licking permit it to construct said system, plaintiff river on its own property along its right of will suffer great and irreparable injury, and way and under certain streets in the city of unless defendants are restrained, they will Covington. A demurrer was sustained to undertake by force to prevent plaintiff from the petition, and the petition dismissed. constructing its water system and laying its The railroad company appeals.

mains in the manner proposed. Subsection The allegations of the petition are, in sub- 5, § 768, Kentucky Statutes, confers upon stance, as follows: Plaintiff is a trunk line railroad companies the powerrailway and a common carrier. In the main-"to construct its road upon or across any watenance and operation of its business it main- ter course, private or plank road, highway, tains railway yards, machine shops, round-street, lane or alley, and across any railroad or

canal; but the corporation shall restore the houses, etc., in the city of Covington and in water course, private or plank road, highway, Latonia, which is a part of the city of Cov- street, lane, alley, railroad or canal to its forington. It also maintains large yards with mer condition, as near as may be, and shall repair and machine shops at De Coursey, obstruct any public highway or street, by cars four miles south of Covington. In the op- or trains for more than five minutes at any one eration of its railroad it is compelled to use time; and shall construct suitable road and great quantities of water, and has no means street crossings for the passage of teams by of supplying itself with water in the yards between and on each side of the rails, the top

putting down planks or other suitable material and shops at De Coursey except by a system of which shall be at least as high as the top constructed and maintained by itself. It is of the rails of such road or street; and in now using, in its yards and shops in the case the road is constructed upon any public

street or alley, the same shall be upon such city of Covington and Latonia, water fur- terms and conditions as shall be agreed upnished by the city of Covington. The supply on between the corporation and the authorities

. of water thus furnished has been wholly in- of any city in which the same may be, but such adequate, and at times the supply has been road shall not be constructed upon any public

street or alley until compensation shall be entirely cut off by reason of the breaking I made by the corporation therefor to the owner of the property adjoining such street or alley, made October 27, 1911, was an incorrect stateand opposite where such road is to be con- ment, so that there was no basis for the constructed, either by agreement or in the man- tention that the patent was void, because the ner provided by law.'

warrant was granted after the survey was made, The argument in behalf of ihe railroad contrary to Ky. St. $ 4703, under which a valid

entry and survey cannot be made until a warcompany is as follows: The above statute rant authorizing them has been issued by the not only confers the power to construct its county court. road across any street of the city, but the 3. BOUNDARIES 37(3)—LOCATION OF CORincidental power to make any use of the

NER-SUFFICIENCY OF EVIDENCE. street necessary for the successful operation for lands, evidence held to sustain the chan

In an action involving priority of patents of the road that will not interfere with the cellor's finding that the proper location of the use of the street by others, and therefore beginning corner of the earlier patent, described the right to lay water mains underneath as a “small oak upon a fork point near the top

of the divided ridge between Hurricane and and across the streets for the purpose of Sandy river," was an oak stump, as claimed by supplying the water necessary for its shops, the defendants. engines, and cars. That being true, the city

Appeal from Circuit Court, Pike County. may not arbitrarily refuse to grant the

Action by W. G. Meade and others against privilege; and, if it does, the company may the Steele Coal Company and others. Judgproceed with the work and enjoin the city ment for defendants, dismissing the petition, and its officers from interfering therewith. and plaintiffs appeal. Affirmed in part, and It will be observed that the statute does reversed in part. not confer upon the railroad company the

P. B. Stratton, of Pikeville, and William absolute right to construct its road upon or

Akers, of Dana, for appellants. Ed. W. Penacross any street, but the right to do so “upon such terms and conditions as shall be dleton and w. G. Fleu, both of Prestonsburg, agreed upon between the corporation and E. D. Stephenson, of Pikeville, Allie W. the authorities of any city.” In other words Young, of Moorehead, and Ed. C. O'Rear, of

. the statute provides that the city shall have Frankfort, for appellees. a voice in fixing the terms and conditions,

CLARKE, J. On September 16, 1913, apand does not authorize the company to pro-pellant, W. G. Meade, instituted this action ceed with the work until the terms and con- in the Pike circuit court to enjoin appellee, ditions have in some way been agreed upon Steele Coal Company, from mining and reby the parties. That being true, the com-moving coal from 3034 acres of land, the pany, upon the mere rejection of its own title to which was claimed by Meade under a terms and conditions, cannot proceed to lay patent granted to him by the commonwealth its water mains and enforce its right by August 20, 1912. The Steele Coal Company enjoining the city authorities from inter- answered, claiming the right to mine coal fering with the work. But if it be conceded from the land described in the Meade patent that the city may not arbitrarily refuse to under a lease from the Elk Horn Fuel Comagree upon terms and conditions, but is un- pany, which company was made a party deder the mandatory duty of agreeing upon fendant and answered, claiming title to the reasonable terms and conditions, a question land through mesne conveyances from Charles not decided, then the company's only remedy, Trout, to whom a patent for 190 acres of land if it has one, is by mandamus or mandatory was granted by the commonwealth in 1846. injunction to compel the city authorities to Defendants also claimed title by adverse posexercise their discretion in good faith. It

session, and attacked Meade's patent as being follows that the demurrer to the petition void upon its face. The allegations of the was properly sustained.

several answers were traversed by reply, Judgment affirmed.

proof was taken, and, upon submission, judg

ment was entered, dismissing the petition, (181 Ky. 153)

and plaintiffs have appealed. MEADE et al. v. STEELE COAL CO. et al. The two questions for decision are:

Whether Meade's patent is void, and what (Court of Appeals of Kentucky. June 18, 1918.)

is the proper location of the Trout patent. 1. PUBLIC LANDS Ow151(6)–PATENT-COL- al attack upon the patent, it is nevertheless

[1, 2] 1. Although this is plainly a collater

LATERAL ATTACK.

A collateral attack upon a land patent authorized, since the basis of the attack is granted by the commonwealth is authorized, that the patent shows upon its face that it is where the basis of the attack is that the pat- void. The patent recites that it was issued ent shows upon its face that it is void. 2. PUBLIC LANDS Ow151(6)—PATENT-VALID- Pike county court land warrant No. 1716, is

by virtue and in consideration of part of a

ITY-SURVEY.

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 issucd December 2, 1911, on a survey ent that the survey was made more than a

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

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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 lo a 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 there- For plaintiffs, an oak standing on the side fore, as shown by this record, lacking in the and near the top of a spyr some 300 feet first essential to their validity. A valid entry and survey cannot be made, of course, until a from the top of the dividing ridge is claimed warrant authorizing same has been issued by the to be the beginning corner called for; while, county court."

for the defendants, a large oak stump locatIn that case there was no proof that any ed upon another spur, or fork point, and only warrant, authorizing the entries and survey, about 100 feet from the top of the dividing had ever been issued, and the question ridge, is claimed to be the beginning corner. whether a warrant could be issued after the It will be seen that the oak stump, claimed survey had been made was not there con- by defendants to be the beginning corner, sidered. All that was decided was that a more nearly accords with the description valid entry and survey could not be made in that it is near the top of the dividing ridge the absence of a warrant authorizing same. than does the small oak for which plainWhile we see no reason now to doubt the ac- tiffs contend; and, from the maps, the spur curacy of the statement that a warrant is upon which the oak stump is located seems to the first essential to the validity of an entry us to more nearly answer the description of and survey, and that they cannot be made un- a fork point, since this spur approaches more til a warrant authorizing same has been is nearly to and points more directly at a fork sued by the county court, it is not necessary in the low gap or Damron branch than does to a decision of this case, as it was likewise the spur upon which is located the small unnecessary in the decision in Mason v. Fu-oak. And the fact that this survey was made son, to decide whether or not a warrant is in 1846 suggests the probability that the oak, sued subsequent to the entry and survey then described as a small oak, would now could give validity to the previously made be a tree of the dimensions of the oak stump entry and survey; and we prefer to leave rather than the oak claimed by plaintiffs, that question open.

While the patent to Meade recites that it now about 20 inches in diameter. was granted upon warrant No. 1716, issued than the oak tree is demanded by the evidence

The adoption of the oak stump rather December 2, 1911, and survey made thereunder October 27, 1911, a certified copy of the of Judge Tobias Wagner, his son, N. L. Wag

, original warrant was introduced, and it ner, John Stevens, Thomas Stevens, and

John S. Lowe, who testified that different shows that it was, in fact, issued March 22, 1911, to P. B. Stratton and assigned by Strat” portions of the land in controversy, which ton June 27, 1911, to Meade. It is therefore 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 war- claimed by plaintiffs, had been claimed and rant which is recorded in the Land Office were recognized in the neighborhood as beand attached to the plat and certificate upon longing to defendants' predecessors in title which the patent issued. There is therefore under the Trout patent, and that these claimno basis for the contention that the Meade ants had, at different times, removed timber patent is void.

from and cultivated portions of this land. [3] 2. Having decided that the Meade pat- We also think that the evidence as to the ent is not void, and it being conceded that proper location of the Lazarus Damron 50it covers the land in controversy, we now acre survey, which is senior to and binds come to a decision of the question of whether upon the Trout survey upon the south, the or not the older Trout patent, under which two surveys having several common calls, 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 neceseast side of Hurricane creek and the elmby plaintiffs and described it as the beginopposite the residence of Lazarus Damron, ning corner of the Trout survey; and that in as does defendants' location of it.

several conveyances in defendants' chain of The only undisputed corner in the Charles title to other lands this oak is referred to as Trout survey is an ash upon a ridge upon a corner of the Trout survey, but these the other side of the survey from the begin- facts, while evidence favorable to plaintiffs.' ning corner, and is not helpful in locating contention, are not at all conclusive. the disputed lines, since in reversing the Upon all of the evidence, which it will be lines of the survey and running from this seen is quite conflicting, we rather incline ash to the beginning corner, the reversed to the opinion of the chancellor that the calls run out at a point between and nearly location claimed by defendants is correct, equally distant from the locations claimed by although our minds are not without some the parties, and the lines do not seem to have doubt upon the question, and under such cirbeen run out on the ground the other way cumstances there can be no doubt of our from the ash to the beginning corner. duty to uphold the decision of the chancellor.

For the plaintiffs, it is claimed that the ! Shelton v. Shelton, 167 Ky. 167, 180 S. W. 83: location asserted by them accords more near-Salyers v. Elk Horn Land & Imp. Co., 167 ly in shape to the recorded plat of the origi- Ky. 111, 180 S. W. 38; Gragg v. Barton's nal survey than does that of the location Adm'x, 161 Ky. 210, 170 S. W. 621; Leibel v. claimed by defendants, but there is little Tandy, 146 Ky. 101, 141 S. W. 1183; Stone difference in the shape of the two maps, v. Middleton, 144 Ky. 284, 137 S. W. 1047; certainly not enough to warrant the selec-Gilliam v. Guffy, 142 Ky. 631, 134 S. W. tion of one location rather than the other; 1162; Williams v. Paintsville Natl. Bank, and the real difference between the locations 143 Ky. 781, 137 S. W. 535, Ann. Cas. 1912D, is that that claimed by plaintiffs is south 350; Eversole v. Holliday, 131 Ky. 202, 114 of that claimed by defendants about the dis- S. W. 1195, and many other cases. tance of the width of plaintiffs' survey, and 3. It will not be necessary for us to conplaintiffs' location seems to us to rest upon sider the defendants' claim to any of the land an unwarranted shifting toward the south, in controversy under a right of pre-emption not only the beginning corner of the Trout or adverse possession, since the location of survey, but also the lines of the Lazarus the Trout patent established their title to all Damron 50-acre survey, the James Damron of the land involved except about 2 acres 75-acre survey, and the Pike County Sem- of the land covered by the Meade patent and inary survey, all of which are older than the outside of the Trout patent, and as to this Trout survey.

small tract, which is located in the extreme The evidence of the surveyors for both northwestern corner of the Meade survey and plaintiffs and defendants, as well as that adjoining the William Weddington 225-acre of another surveyor, Mr. Amick, with refer- survey, the Polly R. Price survey, and the ence to how the respective surveys conform Trout survey, the defendants have no sort to the lay of the land, is rather persuasive, of claim. Therefore as to that part of the although not at all conclusive, of the correct land in controversy plaintiffs are entitled to ness of the defendants' location of the Trout the relief asked for, and to that extent the survey. The evidence of the plaintiff W. G. judgment of the chancellor is erroneous, and Meade, his brother, John L. Meade, G. L. will be reversed. Justice, and Isaac Luster, especially the last Wherefore the judgment is affirmed in so named, tend strongly to support plaintiffs' far as it sustains 'the location of the Trout contention as to the proper location of the survey claimed by defendants, and reversed Trout survey, and plaintiffs rely especially in so far as it denied plaintiffs the relief upon the fact that Bud Stevens and his son, they sought with reference to the small tract Ira Stevens, who at one time owned a part of land in the northwestern corner of the of the Trout survey, made a survey of 11 Meade survey and not included in the Trout acres in 1905, beginning at the oak claimed patent as located.

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