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sum of $340, or $100 less than the amount which did not except said portion of the farm, of his lien debt. All the lots sold for $1,142.- although there had been fraud in its execution, 50, or $350 less than the decedent's debts. or provisions omitted from it by mistake.

2. LANDLORD AND TENANT Om 31-ESTOPPELAll the sales were confirmed. Thomas J.

INCONSISTENT CONDUCT. Little assigned his bid to John Roberts, and Where lessors acquiesced in lessee's use of on November 13, 1894, a deed was made by portion of farm claimed to have been reserved the commissioner on behalf of Mary Roberts full settlement of rent, they are estopped to de

to lessors, and thereafter accepted payment in and the other parties, conveying tract No. ny validity of written contract not excepting ,

, 7 to John Roberts.

said portion of the farm. In the month of August, 1915, Mary Rob- Appeal from Circuit Court, Bourbon Counerts brought this suit against John Rob- ty. erts to set aside the commissioner's deed

Action by Laura Estill Francis and others conveying to him tract No. 7, and to recover against J. E. Tipton and others. From judg- . a half interest in that tract. Besides other ment rendered, plaintiffs appeal. Affirmed. defenses, John Roberts pleaded that plain

Fears & Fears, of New Castle, for appeltiff was a party to the foregoing proceed

lants. Emmet M. Dickson, of Paris, Ky., ings, and that her rights to the property in for appellees. question were concluded thereby. Judgment was rendered in favor of the defendant,

CLARKE, J. On November 30, 1911, apand plaintiff appeals.

pellants rented to appellees, by written conThe entire tract conveyed by Little to tract, their farm, with certain specified explaintiff and her husband was subject to ceptions, in Bourbon county, known as the Little's vendor's lien. Plaintiff was served John Cunningham farm, consisting of about with process on the petition in the settle- 185 acres, for the period of two years beginment suit. The petition set up Little's lien ning March 1, 1912, and ending March 1, and the necessity for the sale of the dece- 1914, for which appellees were to pay appeldent's lands to pay his debts. The necessity lants as rent $525 on December 1, 1911, $525 was shown by the commissioner's report, on January 1, 1912, and $1,050 on January and Little's lien claim was allowed. Little 1, 1913. The contract provides that “this did not seek a personal judgment either land is to be cultivated in corn and tobacco, against the decedent's estate or against with the following exceptions: plaintiff

, but merely asked an enforcement of "The forty-acre field which is now in blue his lien. Under these circumstances it was grass is to remain in grass, about thirty acres not necessary to issue process on the plead- are tọ furnish the seed to sow same, the sec

of land to be sowed in clover, the first parties ing filed by Little and serve it on plain- ond parties are to sow said field. There is extiff or the other parties, since the court had cepted out of this farm six acres of tobacco land the power to order a sale of the land, even now rented by Clay Brothers, the same rented

by said Clay Brothers for the year 1911, and though no pleading was filed by Little. Civ. the dwelling house, yard, garden, orchard and Code, § 692; Union Trust & Saving Co. v. negro cabin." Marchall's Adm'r, 130 Ky. 206, 113 S. W. 73. It is agreed that appellees paid each inPlaintiff had no interest in the land in con- stallment of rent as it became due, or withtroversy until the lien debt was paid. The in a few days thereafter, except $200 on the land was ordered sold, and did not bring second year's rental, which was paid in Auenough to pay the debt. No exceptions were gust before it was due; and that appellants filed by plaintiff either to the judgment or furnished the seed, and appellees sowed report of sale, and the sale was confirmed. about 30 acres of land in oats, clover, and Thereupon in pursuance to an order of timothy. court, the commissioner, on behalf of plain- On October 31, 1913, appellants filed this tiff and the other parties, executed a deed action seeking to recover of appellees a toto the purchaser's assignee. Under these tal of $2,164 as damages to certain portions circumstances plaintiff was before the court of the John Cunningham farm, alleged not for the purposes of the sale in question, and to have been rented, but reserved by appelthe judgment and other proceedings are a lants, and entered by appellees wrongfully, bar to her right of recovery in this action. forcibly, and without right. Appellants did Judgment affirmed.

not in their petition set up, or refer to, their contract as a written contract, and were re

quired, upon motion of appellees,' to file the (180 Ky. 625)

written contract, and to make their petition FRANCIS et al. v. TIPTON et al. more definite and certain. Whereupon they (Court of Appeals of Kentucky. May 21, 1918.) filed the written contract with the following 1. LANDLORD AND TENANT 32-FRAUD OR amended petition:

On MISTAKE-RATIFICATION.

"Come the plaintiffs, and with leave of court, Where lessors acquiesced in lessee's use of amend their original petition and for amendment portion of farm claimed to have been reserved say that on November 30, 1911, the defendants to lessors, and thereafter accepted payment rented certain portions of what is known as the made in full settlement of rent of the farm John Cunningham Farm.' Plaintiffs say that for a year, they ratified the written contract, I these defendants induced them to sign the paper,

which is filed herewith marked "Memorandum is not, plaintiffs still would not be entitled to Contract,' upon the fraudulent representation recover because of their ratification of the to them that if they would sign the paper filed herewith, they would the next day have writ contract both before and after the controten in type and execute a contract, which was versy arose between the parties as to whethto contain all of the agreements between the er or not the defendants had the right, unparties with reference to the renting, of said der their contract, to enter and use the fields farm. Plaintiffs say that said paper filed herewith does not contain all the agreements, and in question. This controversy arose in Au

, that they were induced, after midnight upon the gust or September, 1912, up until which time date set out, to sign said paper, upon the fraud- there seems to have been no differences beulent representations of these defendants, as tween the parties over the meaning of the above alleged.

"Plaintiffs say that defendants did have such contract, or any objections from plaintiff to contract written the next morning, but they defendants' use and occupancy of these fields, have failed and refused to execute and deliver a but from that time on defendants persistcopy of same to these plaintiffs, and plaintiffs ently and at all times claimed the right, unoriginal petition was, by agreement between the der the contract, to the use of these fields, parties, excepted from the operation of the con- while the plaintiffs denied their right to tract as made between the parties.”

such use, and gave them frequent notices After this amended petition had been filed, not to use them. With full knowledge that defendants filed a demurrer to the petition the defendants were using, and claiming the as amended, which was overruled. Defend- right to use, these portions of the farm over ants then moved to transfer the case to the the protest of plaintiffs, the plaintiffs on equity docket, and this motion was sustained January 25, 1913, accepted from defendants and the case transferred, over the objection a check for $850, the balance due under the and exceptions of plaintiffs. Defendants contract for 1913, which contained the writnow complain of the court's action in over- ten statement, "For settlement in full for ruling their demurrer, and the plaintiffs in- rent for their farm from March 1, 1913, to sist that the court erred in transferring the March 1, 1914.” The letter written by plaincase to the equity docket.

tiffs to defendants upon receipt of this check While it is doubtful if the petition as in which they said they would not accept it amended sufficiently charges fraud or mis- proves unmistakably that they fully undertake, and neither a reformation nor a can- stood that this check was given in full paycellation of the contract is prayed, such was ment of and satisfaction for the rent of the its evident purpose; and unless this plea farm for 1913, under the construction of is sustained, plaintiffs' petition as amended, the contract claimed by the defendants. with the written contract made a part there. Having acquiesced in defendants' use of of, did not state a cause of action, because these fields in 1912, and having thereafter the contract, in unambiguous terms, gave to accepted the payment thus made in full setdefendants the right to the possession and tlement of the rent for 1913, they thereby use of the several 'fields which the petition ratified the contract as written, even though alleges defendants had entered and occupied there had been fraud in its execution or prowrongfully. It is therefore clear that the visions omitted from it by mistake; and case was treated and tried in the court be- they are estopped from denying the validity low as presenting the issue of whether or of the contract. Elliott on Contracts, vol. 3, not, through fraud or mistake, there had s$ 2430, 2431; Beach on Contracts, vol. 1, §.

$$ . , $ been omitted from the written contract pro- 812; Ripy v. Cronan, 131 Ky. 631, 115 S. W.

; visions exempting from the lease the fields 791, 21 L. R. A. (N. S.) 305. which plaintiffs claim were entered and occu

Wherefore the judgment is affirmed. pied by the defendants wrongfully. This was the real issue involved, for, unless such

(180 Ky. 636) provisions had been omitted from the contract by fraud or mistake, plaintiffs had no

LEXINGTON & E. RY. CO. v. HARGIS. cause of action, as the contract by its terms (Court of Appeals of Kentucky. May 21, 1918.) gave the defendants the right to use all of 1. EASEMENTS O 48(5)-WAYS-LOCATION. these several fields. We shall, therefore, Where a right of way is not definitely detreat the petition as amended, as was done scribed, the practical use of a particular way, below, as sufficiently pleading fraud or mis- acquiesced in by the parties, fixes the loca:

tion, which cannot be changed by either party take, which authorized a transfer of the case without the other's consent. to the equity docket. Defendants answer, 2. EASEMENTS 64 - OBSTRUCTING WAY

O in addition to a traverse of the petition as

DEFENSE. amended, pleaded a ratification by plaintiffs

That there is another road which plaintiff and an estoppel.

might use is no defense to an action for ob

structing a way to which he is entitled. [1, 2] We need not discuss in detail the evi- 3. EASEMENTS C13 – COVENA

COVENANT TO CONdence upon the question of fraud or mistake, STRUCT PRIVATE WAY. because of our conclusion that even if the evi- Where a public road had been constructed dence was of that certain and convincing char- when a deed was executed, and the apparent acter necessary to warrant the reformation or vate way, grantee's covenant to construct a

purpose of the deed was to provide for a pricancellation of the written contract, which it road was not complied with by suffering the

OwFor other cases see same topic and KEY-NUMBER in all Key. Numbered Digests and Indexas

public road to remain, unless it was adopted, , don. In the year 1900, J. W. Lindon and his used, and acquiesced in by the parties as that wife, America Lindon, died, and Mrs. Hargis provided for by the covenant.

then became vested with the entire title to 4. EASEMENTS 71-OBSTRUCTION OF WAYthe land. In the year 1915, Mrs. Hargis, claimQUESTION FOR JURY.

In action for obstruction of private ways, ing that 'the roadways or passways conwhether other ways than those provided for structed at Lindon branch, Sugar Camp by covenant in right of way deed had been es- branch, and Turkey branch pursuant to the tablished and acquiesced in in lieu of ways cove- covenants in the deed of June 8, 1889, and nanted for, held, under the evidence, for the used by her and her predecessors in title jury. 5. EASEMENTS 71–OBSTRUCTION OF PRI- with the acquiescence of the two railway VATE WAY-TEMPORARY INJURY.

companies for more than 20 years, were obWhere a private passageway was obstruct-structed and rendered impassable by the ed only by stones, which could be easily remov- Lexington & Eastern Railway Company, ed at small expense, the court erred in submitting question whether injury was temporary brought this suit to recover damages. From or permanent; the injury being temporary. a verdict and judgment in her favor for $2,

000, the Lexington & Eastern Railway ComAppeal from Circuit Court, Breathitt

pany appeals. County.

According to several witnesses for plaintiff, Action by J. E. Hargis against the Lexing. J. W. Lindon's home was located at Lindon ton & Eastern Railway Company. From branch. On the opposite side of the railjudgment rendered, defendant appeals. Re-road was his apple orchard. When the railversed and remanded for new trial.

road company first constructed its trestle at Benjamin D. Warfield and Jas. J. Dono- this point, it extended from one hill to the hue, both of Louisville, 0. H. Pollard, of other, and there was left a private passway Jackson, and S. M. Wilson, of Lexington, leading from the inclosure around Judge for appellant. Chester Gourley and South Lindon's home under the trestle and through Strong, both of Jackson, Jno. C. Eversole, a gate into the orchard. This passway was of Booneville, and Hazelrigg & Hazelrigg, used by the Lindons and appellee, with the of Frankfort, for appellee.

acquiescence of the railroad company, until

the year 1912, when the railroad company CLAY, C. On June 8, 1889, James W. Lin- built a fill which entirely closed the passdon, who was the owner of a large tract of way. At the time, however, that the origiland in Breathitt county, sold and conveyed nal deed from Judge Lindon to the Kento the Kentucky Union Railway Company a tucky Union Railway Company was made, right of way through said land; the deed there was a public road crossing the procontaining the following covenants:

posed right of way at Lindon branch, and “Said party of the second part agrees and this public road is now unobstructed. It binds itself to construct a good road, to be used further appears from the testimony for as a private passway across said railroad at grade, or underneath said railroad, at its op- plaintiff that the Kentucky Union Railway tion, which crossroad shall be 12 feet wide Company, in the year 1889, constructed from with good grade, at ‘Hie's branch'; said one foothill to the other a trestle at Sugar crossroad to be so constructed and graded as to enable said parties of the first part or other Camp branch, and left underneath the tresparties to haul coal, timber, etc., over same on tle a passway which ran through a gate and wagons out of the branch above said railroad up a hollow. This passway was about 10 or to Main Cane creek; also to construct similar 12 feet wide, and went out through the botroads and crossings, in like manner as above described, at the Jimmie branch; also at the tom and around to the coal bank and up the Sugar Camp branch, also at the ‘Old House or creek. In the year 1912, the railway com‘Meadow Hollow'; and also branch. All of these roads are to be construct pany made a fill at this point which closed ed and used for the purpose of hauling on same

that . However, a few feet away with farm wagons drawn by teams of horses is another passway which was left open or cattle. Said party of the second part fur- when the fill was constructed, but according ther agrees to construct a trestle at the branch to plaintiff's evidence this passway is not where the party of the first part now lives, and fit for use by wagons and teams during the also at Turkey' branch, so as to give a good roadway under said railroad and across the said winter season. Plaintiff's witnesses also tessecond party's right of way. The said roadway tified that the railway company constructed at these two hollows to be similar in construc- a steel bridge at Turkey branch, but in dotion and use to the ones above described, except that these two are to cross underneath said ing so filled up the passway thereunder with railroad."

large stones, so that it could not be traveled Thereafter the Lexington & Eastern Rail- by wagons drawn by horses or cattle. way Company purchased all the property,

According to the defendant's witnesses, the rights, privileges, and franchises of the Ken- passway claimed by plaintiff at Lindon tucky Union Railway Company. On Febru- branch was simply a footpath, or narrow ary 16, 1899, J. W. Lindon conveyed the land walkway, which was not intended for wagin question to Joanna E. Hargis, wife of A. ons, and was seldom, if ever, used for that H. Hargis, reserving however, a life estate in purpose. It was further shown that the pubhimself and also in his wife, America Lin-lic road which had been located at that point for over 50 years was in fairly good condi- , the diminution, if any, in the market value of tion, and had not been obstructed in any said land caused by the filling up or obstructing, way by the fill. With respect to the passing, if any they shall make in favor of plain

if any, of such passways, if any, but their findway at Sugar Camp branch, defendant's wit- tiff, will not exceed the sum of $5,000, the nesses testified that there was now a pass- amount claimed in the petition as amended. way in the bed of the branch of the width will say in their verdict whether they award

"(3) If the jury find for the plaintiff, they of 12 feet which had not been obstructed, damages for permanent or temporary injury. and that this was the only passway that had If they find for the defendant, they will say so ever existed at that point. The same wit- and no more." nesses also testified that there was built at [1-3] Where a right of way over the propTurkey branch in the year 1889 a steel bridgeerty of another is granted, but the location which rested on stone and concrete abut is not definitely described, the practical use ments. In the year 1912, an outer jacket of of a particular way, acquiesced in by the parconcrete was laid on the stone abutments.ties, fixes the location, and thereafter the In the year 1914, the upper layer of stone location cannot be changed by either party was removed and concrete blocks substitut- without the other's consent. Bannon v. Aned. The stones, some of which weighed as gier, 2 Allen (Mass.) 128; New York Carmuch as half a ton, were thrown under- bonic Acid Gas Co. v. Geyser Natural Carneath the bridge and on one side, thus leav- bonic Acid Gas Co., 55 App. Div. 128, 67 N. Y. . ing a space of practically 12 feet in width Supp. 439; Wynkoop v. Burger, 12 Johns for the passage of farm wagons. A few (N. Y.) 222; Gaston v. Gainesville & D. Elecstones however, were left in the driveway. tric R. Co., 120 Ga. 516, 48 S. E. 188; Roberts There was also proof to the effect that an

v. Stephens, 40 Ill. App. 138; Garraty v. expenditure of $25 would put the passway Duffy, 7 R. I. 476; Warner v. Columbus & at Turkey branch in as good condition as it L. E. R. Co., 39 Ohio St. 70; Jennison v. was before the work on the bridge in 1914 Walker, 11 Gray (Mass.) 423; Moorehead v. was done.

Snyder, 31 Pa. 514; Winslow v. Vallejo, 148 The court gave the following instructions:

Cal. 723, 84 Pac. 191, 5 L. R. A. (N. S.) 851, “(1) The court instructs the jury that, if they 113 Am. St. Rep. 349, 7 Ann. Cas. 851 ; 9 shall believe from the evidence that the Ken- R. C. L. § 43, p. 786; Calvert v. Weddle, tucky Union Railway Company, the predeces.sor of the defendant, Lexington & Eastern Rail. 44 S. W. 648, 19 Ky. Law Rep. 1883; City way Company, under the deed mentioned in the of Owensboro v. Brocking, 87 S. W. 1086, evidence from J. W. Lindon and America Lin- | 27 Ky. Law Rep. 1086. And the fact that don, his wife, to said Kentucky Union Railway there is another road which plaintiff might Company, dated June 8, 1889, constructed, or there then existed and it left under the trestles use is no defense to an action for obstructing it constructed at the branch where said Lin- a way to which he is entitled. 14 Cyc. 1215; don and wife then lived and at Sugar Camp Manbeck v. Jones, 190 Pa. 171, 42 Atl. 536. branch and under the bridge where it constructed at Turkey branch, private passways of the Since the public road at Lindon branch had width of 12 feet sufficient for the use thereof already been constructed when the deed of by wagons drawn by horses or cattle, and that June 8, 1889, was executed, and since the the plaintiff and her grantors used and claimed such passways, if any there were under either apparent purpose of the deed was to proof said trestles or said bridge, as passways vide for roads to be used as private passprovided for in said deed from the time of the ways, it is clear, we think, that the covenant original construction of said railroad at said to construct a road at Lindon branch providpoints until the reconstruction thereof in ored for a road other than the public road, about the year 1912, and that the defendant and its predecessor company acquiesced in the and the mere fact that the public road has location and use thereof, if any there was, as been suffered to remain at that point cannot the passway provided for in said deed, and be regarded as a compliance with the coveshall further believe from the evidence that in or about the year 1912 the defendants filled nant to construct a road there in the absence up or obstructed such passways or any of them, of evidence that such road was adopted, used, if any such passways there were, so as to pre- and acquiesced in by the parties as the road vent the use thereof by wagons drawn by horses or cattle, then they will find for the plaintiff

, provided for in the covenant. J. E. Hargis, and fix her damages as set out in [4] Under the evidence, we think it was a instruction No. 2, but unless they so believe question for the jury whether a passway they will find for the defendant.

“(2) The court instructs the jury that if they other than the passway at Lindon branch shall find for the plaintiff and shall believe from was established and acquiesced in by the the evidence that the obstruction, if any there parties. It was also a question for the jury is, of the passways mentioned in the first in- whether a passway at Sugar Camp branch struction, if any such passways there were, is temporary and not permanent, they will find other than the one left open by the defendfor the plaintiff such a sum in 'damages as will ant was established and acquiesced in by the fairly and reasonably compensate her for the parties. If a practical location of the passdiminution in the value of the use, if any, of her said tract of land up to the time of this ways at Lindon branch and Sugar Camp trial ; but, on the other hand, if they shall be- branch was made by the parties at the places lieve from the evidence that such obstructions, claimed by plaintiff it is clear that they have if any there are, are permanent and not tem- been obstructed by permanent fills, and that porary, then they will find for the plaintiff such a sum in damages, if any, as will fairly the consequent injury to the land is perma- and reasonably compensate the plaintiff for nent. There is no dispute as to the location. of the passway at Turkey branch. Plaintiff's of the damage to his property abutting on

1 proof shows that it is obstructed by several Ayers' alley in that city, and which was large stones. Plaintiff introduced no proof, caused by the city improperly, negligently, however, that the damage could not be easily and carelessly improving the alley and failremedied at a small expense.

ing to provide sufficient catch-basins and [5] On the other hand, the testimony for de- drainage to carry off the accumulated water, fendant was to the effect that the stones and failed to properly provide against an could be removed at a cost of about $25. increased volume of water flowing into the In view of the fact that this passway was alley, by reason of which his abutting premnot obstructed by any permanent structure, ises were caused to be overflowed and dambut only by stones, which the uncontradicted aged. His right to recover was resisted by evidence shows could easily be removed at appropriate pleadings, and upon trial the a small expense, the trial court should have jury returned a verdict in appellee’s favor held as a matter of law that the injury was for the sum of $1,000, upon which judgment only temporary, and erred in submitting to was rendered, and to reverse it the city prosthe jury the question whether the injury was ecutes this appeal. temporary or permanent. On another trial [1] A number of minor errors are relied the court will not leave it to the jury to say upon in the motion for a new trial, but they whether the injury at each particular place all appear to be abandoned upon this apwas temporary or permanent, but as to the peal except the one insisted upon in brief passways at Lindon branch and Sugar Camp for the city that the verdict is flagrantly branch will give the measure of damages ap- against the evidence. Much of the alleged plicable to a permanent injury, and as to the incompetent testimony was not objected to, Turkey branch the measure of damages ap- and the instructions given to the jury were plicable to a temporary injury.

prepared by the attorney for the city, with In view of the conclusion of the court, we the exception of two of them, and no exdeem it unnecessary to determine whether ceptions were taken to the giving of those, the damages allowed were excessive.

so that the only question in the case as arJudgment reversed, and cause remanded gued here is whether the verdict is flagrantly for a new trial consistent with this opinion. against the evidence, and this contention is

narrowed to the point that the evidence is

insufficient to show that the rains which pro(180 Ky. 650)

duced the overflows complained of were not CITY OF LEXINGTON v. HENDERSON. usual and ordinary ones, but, on the con(Court of Appeals of Kentucky.

May trary, were unusual and extraordinary. It is 21, 1918.)

not claimed that the plaintiff's premises were

not overflowed because of the character of 1. APPEAL AND ERROR Om 204(1), 215(1) MATTERS REVIEWABLE SAVING OBJEC

the improvement done to Ayers' alley; but, TIONS.

if it were so claimed, the evidence is overEvidence and instructions not objected to whelming that the property has been made will not be reviewed on appeal. 2. MUNICIPAL CORPORATIONS O830DRAINS times since the improvement was made in

to overflow each year some two or three -FLOODING-DAMAGES.

A city is only required in improving an al. 1912, and that none such occurred prior to ley to furnish catch-basins sufficient to carry that time, or if any, it was very slight and off usual rains, and is not liable for damages insignificant. It is shown that the surface unusual rain which could not have been antici- of the alley before the improvement was from pated by persons of ordinary experience and four to six inches below the door entering prudence.

plaintiff's house, and below its ground floor, 3. MUNICIPAL CORPORATIONS Om 845(4) and that since the construction the surface DRAINS-SUFFICIENCY. Evidence held to sustain a finding that a

of the alley is some six inches above the landowner was flooded and damaged by a usual door and floor; that on account of the inrainfall by reason of insufficient catch-basins. sufficiency of the catch-basin at the mouth

of the alley where it enters into Main street Appeal from Circuit Court, Fayette County. a large part of the water coming down that

Action by W. H. Henderson against the street from both directions is made to flow City of Lexington. Judgment for plaintiff, through the alley, and that at the lower and defendant appeals. Affirmed.

end of it, it being a cul-de-sac, there is but James G. Denny and J. Embry Allen, both one catch-basin, and it is insufficient to of Lexington, for appellant. Rives & Shan- carry away the water flowing into the alley. non and W. P. Kimball, all of Lexington, for The testimony is abundantly sufficient to appellee.

show the damages to be as much or more

than the amount of the verdict. THOMAS, J. The appellee, Henderson, [2, 3] Upon the point chiefly urged upon by this proceeding sought a judgment against this appeal, viz. that the overflows complainthe appellant, city of Lexington, for the sum ed of were produced not by ordinary and of $5,000, which he claims was the extent usual rains, but by extraordinary ano un

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