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THE

SOUTHWESTERN REPORTER

VOLUME 201

ASHLEY v. HAYS.

(Court of Appeals of Kentucky. March 8,
1918.)

PARTNERSHIP 336(3)—ACCOUNTING-SUFFI-
CIENCY OF EVIDENCE.

In a partnership accounting, evidence held to sustain a chancellor's finding that defendant was entitled to a commission on the sale of cross-ties, staves, etc., instead of being plaintiff's partner in such transaction.

Appeal from Circuit Court, Pulaski County. Suit by W. B. Ashley against F. S. Hays. Judgment for defendant, and plaintiff appeals. Affirmed.

O. H. Waddle & Son and E. T. Wesley, all of Somerset, for appellant. W. M. Catron and J. W. Colyar, both of Somerset, and J. W. Rawlings, of Danville, for appellee.

B. Ashley were in business together, that they divided the cost, and that Ashley was to get out and hustle and do the work, while Hays was to furnish the money.

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On the other hand, Hays, who was the cashier of the First State Bank at Eubanks, testified that he was to back Ashley in getting the necessary money to carry on the business, and that Ashley was to pay him 2 cents on each tie and $2 per thousand feet on staves. C. L. Gooch, who worked in the bank at the time, also testified that Hays was interested with Ashley to the extent that Hays was to get 2 cents on each tie and $2 per thousand feet on staves. It further appears that Ashley executed to the bank a mortgage, which specifies that this was the commission which Hays was to receive. further appears that Ashley executed a note and mortgage, not only to the bank, but also a note and mortgage to Hays. It was also shown that Ashley sold lumber and stock to Hays, and that the purchase price was to be credited on Ashley's indebtedness. There are also in the record certain checks given by According to the testimony of Ashley, he Ashley in payment of Hays' commission and Hays went into the business of manufac-on the basis of 2 cents per tie and $2 per turing, buying, and selling cross-ties, staves, thousand feet for staves. etc. By the contract between them, Hays was to furnish the money, and Ashley was to do the work, and the profits and losses were to be shared equally. Jacob Wesley, who had been employed to inspect certain lumber that E. R. Spotswood had purchased from W. B. Ashley, testified that Hays said to him: "Now, Jake, I don't ask you to rob Spotswood, but give us a good grade as you possibly can. I am interested in that lumber."

CLAY, C. W. B. Ashley brought this suit against F. S. Hays to settle an alleged partnership. The chancellor held that he and Hays were not partners and dismissed the petition. Ashley appeals.

While Ashley attempted to deny the execution of the mortgage to the bank, its execution was conclusively proved by a number of witnesses who were acquainted with his signature; and while he says that the notes and mortgages were executed for the accommodation of Hays and the bank in order to avoid trouble with the bank examiner, this explanation of their execution is by no means satisfactory, in view of the fact that he sold cer

Hays further told him that he was furnish-tain property to Hays with the understanding ing the money, and Ashley was doing the that the purchase price was to be credited on work, and they were dividing the profits. On the indebtedness. Even if the solution of the another occasion Spotswood and Ashley had case depended on the oral evidence of the para spat, and Ashley told Spotswood that he ties, we doubt if it could be said that the decould not have the lumber. Witness said that cision of the chancellor was not sustained Hays was Ashley's partner. Spotswood sug- by the evidence. When, therefore, we congested that they see Hays. They did so, sider the numerous circumstances tending to and Hays then said that he and Ashley were show that the indebtedness incurred in the not partners. Afterwards Hays said: "Jake, transaction of the business was recognized I told you not to tell any one I was putting up by Ashley as his individual indebtedness, this money." On cross-examination witness and that the payments to Hays were made stated that at no time did Hays say that he on the basis of a commission on the number and Ashley were partners... Sol. Ashley tes-of ties and quantity of staves sold, we contified that Hays told him that he and W. clude that the chancellor did not err in hold

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

ing that no partnership existed between the not barred by limitation until 15 years after parties.

Judgment affirmed.

death of the life tenant.

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4. EJECTMENT 142(4) IMPROVEMENTS RIGHT TO COMPENSATION.

Where unsuccessful defendant in ejectment acted in good faith, believing he was the owner of the land, he was entitled to a lien upon the enhanced its salable value by improvements.

BOSWORTH, Auditor, v. EVANSVILLE & land to the extent that he or his grantor had BOWLING GREEN PACKET CO. (Court of Appeals of Kentucky. March 8,

1918.)

Petition for rehearing. Petition overruled. For former opinion, see 199 S. W. 1059. Chas. H. Morris, Atty. Gen., and John C. Duffy, Special Asst. Atty. Gen., for appellant. J. P. Hobson & Son, of Frankfort, and Yeaman & Yeaman, of Henderson, for appellee.

MILLER, J. In its petition for a rehearing the appellee relies upon the following clauses of the federal Constitution in bar of the state's right to exact the tax in question: (1) "The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Article 1, § 8.

(2) "No preference shall be given any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to, from, one state, be obliged to enter, clear, or pay duties in another." Article 1, § 9. (3) "No state shall, without the consent of Congress lay any duty of tonnage." Article 1, § 10. And,

(4) "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Fourteenth Amendment. We fully considered all of these constitutional provisions upon the original hearing. We have reconsidered them, and find no reason to change our former ruling. Petition for rehearing overruled.

JACKSON et al. v. CLAYPOOL. (Court of Appeals of Kentucky. March 8, 1918.)

1. MARRIAGE ~40(4)—PRESUMPTIONS.

That a man and woman lived together until the man's death, that they were treated as husband and wife, and so considered by their neighbors, and that no one ever disputed their being married, raises a presumption of legal marriage in the absence of other proof.

2. TAXATION 783 - TAX DEED - INTEREST CONVEYED.

Where, on death of an intestate leaving children and a widow, his widow continued to occupy the whole of a tract of land belonging to intestate, without allotment of dower, and, while thus occupied, the land was sold for taxes as her land, the title acquired under the sheriff's deed was only such as she had; that is, an estate for her life.

3. REMAINDERS 17(3)-LIMITATION OF AC

TION.

Appeal from Circuit Court, Warren County. Action by Lena Jackson and others against James W. Claypool. From judgment for defendant, plaintiffs appeal. Reversed for further proceedings.

Bradburn & Basham, of Bowling Green, for appellants. Jno. B. Grider and Chas. Drake, both of Bowling Green, for appellee.

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slave Matilda was sold by T. J. Morehead to John Claypool, and when she became free she took the name of her former master, and was thereafter known as Matilda Claypool. Upon the death of James Starks and a division of his estate a few years before the war between the States, Wash became the property of Mrs. Miles Kelley, a daughter of James Starks. When he secured his freedom Wash took the name of his former mistress, and was ever known thereafter as Wash Kelley. Susan died in about 1862, and Wash subsequently married Mary, who died leaving no children by this marriage. Wash then married Daphne, his third wife.

Subsequently, the date not being definitely given, but before 1894, Wash bought from F. G. Cox the 12 acres of land in controversy, Cox giving Wash a title bond obligating Cox to make Wash a deed upon the payment of the purchase money. Wash paid the purchase money, but both Cox and Wash having died before a deed was made, Cox's heirs, by deed dated August 16, 1894, conveyed the 12 acres to "Daphne Kelley, widow of Wash, and the children and heirs of Wash Kelley," reciting in the habendum clause that the land was to be held by "Daphne Kelley, widow of Wash Kelley, his children and heirs, with the same rights and interest that they would have under the law taken, if this conveyance had been made to Wash Kelley before his death." Upon the death of Wash, Daphne, his widow, continued to live upon and occupy the 12 acres, no dower having been assigned her, and no one questioning her right to occupy the entire tract.

Under Ky. St. § 2505, providing that an action for recovery of real property can be brought only within 15 years after the right to institute it first accrued to plaintiff, remaindermen are In 1896 the sheriff sold the 12 acres for the

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

taxes of 1894, Thomas becoming the pur- Wash and Susan having been clearly shown, chaser. Thomas assigned his bid to Peter Butts, and the sheriff made a deed to Butts on September 8, 1905, for the consideration of $2.51, the amount of the tax. By deed dated February 13, 1913, Butts conveyed the land to the defendant, James Claypool, who has occupied it ever since. By a stipulation of record it is shown that Thomas purchased the land at the tax sale in 1896, and took possession of it at that time, and that he and those claiming under him, including the defendant, James Claypool, have since been in possession of the land in question exclusively and continuously, claiming it as their own.

their children are their legal heirs. Ky. Sts. § 1399a; Botts v. Botts, 108 Ky. 414, 419, 56 S. W. 677, 961, 22 Ky. Law Rep. 109, 212; Lindsey's Dev. v. Smith, 131 Ky. 177, 114 S. W. 779; Turner, Jr., v. Terrill, 97 S. W. 396, 30 Ky. Law Rep. 89. As to the marriage of Wash with Daphne, it is not shown whether it was a slave marriage or a marriage by license. If it was a customary slave marriage before February 14, 1866, it must be held to be valid, and Daphne entitled to the rights of widow. Ky. Sts. 1399b. If they were married after February 14, 1866, it is the ordinary case of marriage between free persons, and may be shown by

[1] It is plainly shown that Wash and Daphne lived together as husband and wife until Wash's death; that they were treated as husband and wife, and so considered by their neighbors and the public generally, and that no one ever disputed that fact. In the absence of other proof upon that subject, this is sufficient proof to raise the presumption that they had been married in the manner

Matilda Claypool, the daughter of Wash and Susan Kelley, died in about 1909, leav-parol. ing two children, the appellants Hallie Keel and Lena Jackson. When Peter Butts took possession of the land in question under his tax deed of September 8, 1905, Daphne, the widow, surrendered possession to Butts, and never afterwards lived upon the land. Daphne died in 1905; and on July 31, 1916, Lena Jackson, Hallie Keel, Malinda (now Smith), and Joe Kelley, as the heirs at law of Wash Kelley, brought this action in eject-required by law. In Chamberlayne's "Modment against James Claypool to recover the 12 acres of land bought from Cox and claiming rents at the rate of $50 per year, and $20 damages to the dwelling, making a total claim, for rent and damages, of $270.

Besides containing a traverse, the answer puts in issue the marriage of Wash Kelley to Daphne. The answer further alleges that defendant's grantor took possession of the land in question under the sheriff's deed more than 20 years before the filing of the petition, and relies upon the defendant's adverse possession of the premises for that period in bar on the plaintiff's right of action. The answer further claims a lien upon the land for the value of the improvements put thereon in case the defendant should be ejected; and it further puts in issue the claim of the plaintiffs, or at least the claim of some of them, that they are the heirs of Wash Kelley. The case was transferred to the equity docket; and upon a trial the chancellor dismissed the petition. The plaintiffs appeal.

In order to pass upon the legal issues raised by the pleadings, it becomes necessary to first determine whether Wash and Susan were husband and wife; whether Matilda Claypool, Malinda, and Joe were their legal issue; and whether Daphne was the widow of Wash. The proof shows to a degree of certainty much more satisfactory than is usual in cases of this character that Wash Kelley and Susan were married in the informal manner usual and customary among slaves, and that Joe, Malinda, and Matilda Claypool were the children of that marriage; that Wash subsequently married Mary while they were slaves; and that after Mary's death

ern Law of Evidence," § 2974, it is said:

"The fact of marriage may be proved circumstantially by cohabitation, by the fact that the knowledged and to whom they gave the family persons in question had children whom they acname, by the alleged husband's support of the alleged wife and children, or by any acts or conduct of the parties probatively relevant."

See, also, Rockcastle M., L. &. O. Co. v. Baker, 167 Ky. 66, 179 S. W. 1070; Chiles v. Drake, 2 Metc. 146, 74 Am. Dec. 406; 18 R. C. L. 426; L. R. A. 1915E, 34, note, to the same effect.

As proof of the fact that Joe and Malinda were Wash's children, it is further shown by H. L. Morehead, a son of T. J. Morehead, that shortly after the war Wash Kelley, who then lived in the adjoining county of Warren, went to the home of T. J. Morehead in Allen county to claim his children, Joe and Malinda; that T. J. Morehead told Wash he was entitled to his children and could take them; that the children objected strenuously, saying they wanted to remain with Mr. Morehead, their former master, and did not want to go with their father, but that Mr. Morehead insisted upon Joe and Malinda going with Wash, whom he recognized as their father, and that Wash finally took Joe and Malinda home with him.

The doubt as to Matilda being the child of Wash and Susan arose from the fact that, having been sold to John Claypool, she, following the custom among slaves, took her master's name when she became free, and was thereafter known as Matilda Claypool, while her father was known as Wash Kelley. But it is clearly shown that Matilda was the child of Wash and Susan, and that she died leaving two children, the plaintiffs Lena Jack

proof tending to show that Matilda Claypool the possession of the land sued for, and rewas never married, and that her two children | quiring the defendant to account for rents Lena Jackson and Hallie Keel were her il- for the period of his illegal holding, which legitimate children by Richard Chapman. began with the death of Daphne in 1905, to And much is made of this fact; the conten- be credited, however, by taxes paid by aption being that they did not inherit the land pellee since 1905, with interest, and by the in controversy, and cannot sue to recover it. improvements as above indicated. But if their illegitimacy should be treated as Judgment reversed for further proceedings established by the proof, it would not pre- consistent with this opinion. vent them from maintaining this action, since they inherited through their mother, Matilda Claypool, who was a daughter of Wash and Susan Kelley, and not through their putative father, Richard Chapman. Ky. Sts. § 1397; Cherry v. Mitchell, 108 Ky. 1. 55 S. W. 689, 21 Ky. Law Rep. 1547. Having determined that the plaintiffs are the heirs at law of Wash Kelley, and have the right to maintain this action, and that Daphne was Wash's widow, the decision of the case depends upon the determination of two questions: (1) What estate did Peter Butts take under the sheriff's deed? and (2) If he took less than a fee, when did limitation begin to run?

[2] Upon the death of Wash Kelley the fee in this tract of land vested in his children, Joe Kelley, Malinda Smith, and Matilda Claypool, subject to the rights of the widow, Daphne Kelley. No dower was ever allotted to her out of the land, and she continued to occupy it as widow. She had no other interest, and held as widow, and not as an heir; her interest being a life estate at most. While she thus occupied the land it was sold as her land for taxes. But the sheriff did not attempt to sell any more than Daphne's interest in the land, and the title acquired under the sheriff's deed was only such as she had, that is, an estate for her life. East Kentucky

BORDES et al. v. LEECE. (Court of Appeals of Kentucky. March 5, 1918.)

1. EASEMENTS

DEN OF PROOF.

36(1)-PUBLIC WAYS-BUR

a

Where the public generally have used passway for 15 years under a claim of right, dertakes to close the passway, the burden is on and the owner of the servient estate then unhim to show that the use was merely permissive.

2. EASEMENTS 26(1) PUBLIC WAYS

ABANDONMENT.

Where a passway has been once established by adverse use, the right of the public to use

the passway can be defeated only by a prohi15 years, or by a voluntary abandonment of its bition of the public's use thereof for a period of use by the public.

3. EASEMENTS 36(3)-PUBLIC WAYS-PERMISSIVE USE.

Mere fact that improper use of a passway unnecessarily damaging it was objected to did not establish that the use was merely permissive.

4. EASEMENTS 36(3)-PUBLIC WAYS-PER

MISSIVE USE.

Mere fact that one person paid for the use of a way over the same land, but not conforming to the alleged prescriptive way, did not establish that the use of the latter was merely permissive. 5. EASEMENTS 36(3)

CHANGE IN LOCATION.

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PUBLIC WAYS

by mutual assent of the owner and the public, Changes in location, within the same tract, and for convenience of the public, did not establish that an alleged prescriptive way was only permissive.

Appeal from Circuit Court, Rockcastle County.

Injunction suit by Alfred Leece against Sylvan Bordes and others. Decree for plaintiff, and defendants appeal. Affirmed.

Coal Lands Corp. v. Commonwealth, 127 Ky. 720, 106 S. W. 260, 108 S. W. 1138, 32 Ky. Law Rep. 129, 33 Ky. Law Rep. 49; Rogers v. McAlister, 151 Ky. 488, 152 S. W. 571; McDowell v. Hollowell, 173 Ky. 543, 191 S. W. 315; Hall v. Hall, 174 Ky. 360, 192 S. W. 76; Smith v. Young, 178 Ky. 380, 198 S. W. 1166. Consequently, upon the death of the widow, Daphne, in 1905, J. W. Claypool's interest in the land ceased, and the plaintiff's right C. C. Williams, of Mt. Vernon, for appelthereto then accrued. Smith v. Young, supra. lants. Ed. C. O'Rear, of Frankfort, and [3] The right of the plaintiffs could be Bethurum & Lewis, of Mt. Vernon, for apasserted at any time within 15 years thereaft-pellee. er; and since this action was instituted on July 31, 1916, within 11 years after the death of the widow, the action was not barred by limitation. Kentucky Statutes, § 2505; Smith v. Young, supra.

[4] But as the defendant acted in good faith, believing he was the owner of the land he is entitled to a lien upon the land to the extent that he or his grantor has enhanced its salable value by improvements.

The Chancellor therefore erred in dismissing the petition. He should have granted the prayer of the petition, by giving the plaintiffs

CLAY, C. Plaintiff, Alfred Leece, brought this suit against defendants Syivan Bordes and Julian Bordes, to enjoin the obstruction of a passway. He was granted the relief prayed for, and the defendants appeal.

The passway in question extends from the Crab Orchard road through the lands of Frank Robbins, thence through the lands of plaintiff, thence through the Bordes lands to the Copper Creek road. The passway passes through several gates, there being two gates on the Bordes land; one where the passway

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

enters the premises, and one on the Copper | passway can be defeated only by a prohiCreek road. Near the latter point are lo-bition of the public's use thereof for a period cated a church and schoolhouse. According of 15 years, or by a voluntary abandonment to the evidence for plaintiff, the passway of its use by the public. Potts v. Clark, 62 had been used by him and the public gener- S. W. 884, 23 Ky. Law Rep. 332; Wilkins ally in going to and from the church and v. Barnes, 1 Ky. Law Rep. 328. school as well as to their voting place at Broadhead without let or hindrance and under a claim of right for about 40 years. Originally the passway was along a branch for part of the way, but in order to avoid the worn and washed out places, the public traveled over the higher and firmer ground and the passway deviated from the original location for a few feet in places to as much as 200 yards or more in other places. At that time the Bordes land was not uninclosed woodland, but had been cleared, and was an old field. Later on the passway was returned to the branch route, and has existed along this particular route for about 8 years. Plaintiff says that these changes were made by the public with the knowledge and acquiescence of the owners of the Bordes land, and for the mutual convenience of those entitled to use the passway.

[3, 4] We do not consider plaintiff's objection to the use of the passway by Hoskins and the men hauling staves as sufficient to show that the use of the passway was merely permissive, since the circumstances under which the objections were made show very clearly that it was the improper conduct of Hoskins and the injurious use of the road by the stave men that plaintiff protested against, rather than the mere right to use the passway in question. Nor can the fact that Francisco purchased a different right of way over the Bordes land be regarded as controlling.

[5] We also conclude that the changes in the passway were not material under the facts of this case. Plaintiff showed that he and the public generally had used the passway over the defendant's land for a period of 40 years. That being true, the mere fact According to the evidence for the defend- that the location of the passway was changed ants, people traveled over their lands first from time to time by mutual assent of the in one place and then in another, as suited parties was not sufficient to show that the their convenience. Their lands, however, use of the passway was merely permissive. were fenced in 1898, and no one traveled List v. Jacoby, 61 S. W. 355, 22 Ky. Law over them until 1907, when the defendants Rep. 1757; J. V. & S. H. Boyd v. Morris, 106 erected the gates. Plaintiff had two others. W. 867, 32 Ky. Law Rep. 642.

routes and possibly a third route by which he could reach the public road. Defendants also showed that plaintiff denied to Bev. Hoskins, the son of a neighbor, the right to

Judgment affirmed.

NESSEE COAL CO.

(Court of Appeals of Kentucky. March 5,
1918.)

APPEAL AND ERROR 1178(6)-DETERMINA-
TION-REMAND.

use the passway. On another occasion he ob- EUREKA COAL CO. v. KENTUCKY-TENjected to some stave men hauling heavy timber over the passway. On another occation Mr. Francisco, in the early '70's, put a mill on the Copper Creek road on the Bordes land, and paid for the right to haul his mill supplies through the Bordes land. According to plaintiff, however, he notified Hoskins to keep off his premises because the boy had shot his dog, and objected to the hauling of heavy timber over the passway on the sole ground of unnecessary injury to the road. It was further shown that Francisco did not pay for permission to use the passway in question, but for the right to go over the Bordes land on the right-hand side of the branch where no passway existed.

[1, 2] It is well settled that where the public generally have used a passway for 15 years under a claim of right, and the own er of the servient estate then undertakes to close the passway, the burden is on him to show that the use was merely permissive. Lyles v. Graves et al., 147 Ky. 807, 145 S. W. 762; Smith v. Pennington, 122 Ky. 355, 91 S. W. 730, 28 Ky. Law Rep. 1282, 8 L. R. A. (N. S.) 149. It is also the rule that where a passway has been once established by adverse use, the right of the public to use the

In an action to compel defendant coal company to allow plaintiff to use its spur railroad for transportation of coal from several parcels of land owned by plaintiff, where plaintiff prayed permission to use the railroad without compensation, and in the alternative for the right to use it upon payment of reasonable compensaauthorized plaintiff to use the railroad for the tion, the trial court rendered judgment which transportation of coal mined from a particular parcel without compensation, but denied the right to use the road for transportation of other coal. It appeared on appeal that plaintiff was willing to pay a fair price for the use of the railroad for hauling coal from its other lands, and that defendant did not object to that as the trial court ignored plaintiff's petisuch use on payment of compensation. Held, tion for use of the railroad on payment of compensation and unqualifiedly denied the right, the Supreme Court determine the amount of a reasonable compensation, and the case should be reversed and remanded to the trial court for the determination of that issue.

cannot

Appeal from Circuit Court, Whitley County. Action by the Eureka Coal Company against the Kentucky-Tennessee Coal Company. From a judgment granting plaintiff

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