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THE

SOUTHWESTERN REPORTER

VOLUME 201

B. Ashley were in business together, that ASHLEY V. HAYS.

they divided the cost, and that Ashley was (Court of Appeals of Kentucky. March 8,

to get out and hustle and do the work, while 1918.)

Hays was to furnish the money.

On the other hand, Hays, who was the PARTNERSHIP Cw336(3)-ACCOUNTING-SUFFI- cashier of the First State Bank at Eubanks, CIENCY OF EVIDENCE.

In a partnership accounting, evidence held testified that he was to back Ashley in get. to sustain a chancellor's finding that defend- ting the necessary money to carry on the ant was entitled to a commission on the sale of business, and that Ashley was to pay him cross-ties, staves, etc., instead of being plain- 2 cents on each tie and $2 per thousand feet tiff's partner in such' transaction.

on staves. C. L. Gooch, who worked in the Appeal from Circuit Court, Pulaski County. bank at the time, also testified that Hays was

Suit by W. B. Ashley against F. S. Hays. interested with Ashley to the extent that Hays Judgment for defendant, and plaintiff ap- was to get 2 cents on each tie and $2 per peals. Affirmed.

thousand feet on staves. It further appears 0. H. Waddle & Son and E. T. Wesley, all that Ashley executed to the bank a mort. of Somerset, for appellant. W. M. Catron gage, which specifies that this was the comand J. W. Colyar, both of Somerset, and J. mission which Hays was to receive. It W. Rawlings, of Danville, for appellee.

further appears that Ashley executed a note

and mortgage, not only to the bank, but also CLAY, C. W. B. Ashley brought this suit a note and mortgage to Hays. It was also against F. S. Hays to settle an alleged part- shown that Ashley sold lumber and stock nership. The chancellor held that he and to Hays, and that the purchase price was to Hays were not partners and dismissed the be credited on Ashley's indebtedness. There petition. Ashley appeals.

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-l on the basis of 2 cents per tie and $2 per turing, buying, and selling cross-ties, staves, I thousand feet for staves. etc. By the contract between them, Hays

While Ashley attempted to deny the execuwas to furnish the money, and Ashley was to tion of the mortgage to the bank, its execudo the work, and the profits and losses were tion was conclusively proved by a number of to be shared equally. Jacob Wesley, who had witnesses who were acquainted with his sig. been employed to inspect certain lumber that nature; and while he says that the notes and E. R. Spotswood had purchased from W. B. mortgages were executed for the accommodaAshley, testified that Hays said to him:

tion of Hays and the bank in order to avoid “Now, Jake, I don't ask you to rob Spots-trouble with the bank examiner, this explanawood, but give us a good grade as you possibly tion of their execution is by no means satisI am interested in that lumber."

factory, in view of the fact that he sold (erHays 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

can.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
201 S.W.-1

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

death of the life tenant.

4. EJECTMENT ww142(4) IMPROVEMENTS Judgment affirmed.

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
BOSWORTII, Auditor, v. EVANSVILLE & land to the extent that he or his grantor had
BOWLING GREEN PACKET CO.

enhanced its salable value by improvements.
(Court of Appeals of Kentucky. March 8, Appeal from Circuit Court, Warren County.
1918.)

Action by Lena Jackson and others against
Petition for rehearing. Petition overruled. James W. Claypool. From judgment for de-
For former opinion, see 199 S. W. 1059. fendant, plaintiffs appeal. Reversed for fur.
Chas. H. Morris, Atty. Gen., and John C.

ther proceedings.
Duffy, Special Asst. Atty. Gen., for appellant. Bradburn & Basham, of Bowling Green,
J. P. Hobson & Son, of Frankfort, and Yea- for appellants. Jno. B. Grider and Chas.
man & Yeaman, of Henderson, for appellee. Drake, both of Bowling Green, for appellee.

а

MILLER, J. In its petition for a rehear- MILLER, J. This is an action in eject-
ing the appellee relies upon the following ment by the heirs of Wash Kelley to recover
clauses of the federal Constitution in bar of 12 acres of land in Warren county. Wash
the state's right to exact the tax in question: Kelley and Susan, his wife, colored, were

(1) “The Congress shall have power. * born slaves. They were married, while
to regulate commerce with foreign nations, and slaves, according to the simple form custom-
among the several states, and with the Indian
tribes." Article 1, § 8.

ary among slaves. Wash belonged to James
(2) "No preference shall be given any regula- Starks of Allen county, while Susan belonged
tion of commerce or revenue to the ports of one to T. J. Morehead of the same county. Of
state over those of another; nor shall vessels this marriage three children were born: Joe,
bound to, from, one state, be obliged to enter,
clear, or pay duties in another.” Article 1, $ 9. Malinda, and Matilda. While she was

(3) "No state sball, without the consent of slave Matilda was sold by T. J. Morehead to
Congress lay any duty of tonnage.Article John Claypool, and when she became free she
1, § 10. And,

(4) "No state shall make or enforce any law took the name of her former master, and was
which shall abridge the privileges or immunities thereafter known as Matilda Claypool. Up-
of citizens of the United States; nor shall any on the death of James Starks and a division
state deprive any person of life, liberty, or prop- of his estate a few years before the war be-
erty, without due process of law; nor deny to
any person within its jurisdiction the equal pro-tween the States, Wash became the property
tection of the laws." Fourteenth Amendment. of Mrs. Miles Kelley, a daughter of James

We fully considered all of these constitu- Starks. When he secured his freedom Wash
tional provisions upon the original hearing. took the name of his former mistress, and
We have reconsidered them, and find no rea-

was ever known thereafter as Wash Kelley.
son to change our former ruling.

Susan died in about 1862, and Wash subse-
Petition for rehearing overruled.

quently married Mary, who died leaving no
children by this marriage. Wash then mar-
ried Daphne, his third wife.

Subsequently, the date not being definitely
JACKSON et al. v. CLAYPOOL,

given, but before 1894, Wash bought from
(Court of Appeals of Kentucky. March 8,

F. G. Cox the 12 acres of land in controver1918.)

sy, Cox giving Wash a title bond obligating
1. MARRIAGE CW 40(4)—PRESUMPTIONS.

Cox to make Wash a deed upon the payment
That a man and woman lived together until of the purchase money. Wash paid the pur-
the man's death, that they were treated as hus-chase money, but both Cox and Wash having
band and wife, and so considered by their neigh-died before a deed was made, Cox's heirs,
bors, and that no one ever disputed their being
married, raises a presumption of legal marriage by deed dated August 16, 1894, conveyed the
in the absence of other proof.

12 acres to “Daphne Kelley, widow of Wash,
2. TAXATION 783 Tax DEED — INTEREST and the children and heirs of Wash Kelley,"
CONVEYED.

reciting in the habendum clause that the
Where, on death of an intestate leaving chil- land was to be held by “Daphne Kelley, wid-
dren and a widow, his widow continued to occu-
py the whole of a tract of land belonging to ow of Wash Kelley, his children and heirs,
intestate, without allotment of dower, and, while with the same rights and interest that they
thus occupied, the land was sold for taxes as would have under the law taken, if this con-
her land, the title acquired under the sheriff's
deed was only such as she had; that is, an es- veyance had been made to Wash Kelley be-
tate for her life,

fore his death." Upon the death of Wash,
3. REMAINDERS 17(3)–LIMITATION OF AC- Daphne, his widow, continued to live upon

and occupy the 12 acres, no dower having
Under Ky. St. & 2505, providing that an ac- been assigned her, and no one questioning
tion for recovery of real property can be brought
only within 15 years after the right to institute her right to occupy the entire tract.
it first accrued to plaintiff, remaindermen are

In 1896 the sheriff sold the 12 acres for the
ww For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1 1 1 1

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

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TION.

taxes of 1894, Thomas becoming the pur- Wash and Susan having been clearly shown, chaser. Thomas assigned his bid to Peter their children are their legal heirs. Ky. Sts. Butts, and the sheriff made a deed to Butts $ 1399a ; Botts v. Botts, 108 Ky. 414, 419, 56 on September 8, 1903, for the consideration S. W. 677, 961, 22 Ky. Law Rep. 109, 212; of $2.51, the amount of the tax. By deed Lindsey's Dev. v. Smith, 131 Ky. 177, 114 dated February 13, 1913, Butts conveyed the S. W. 779; Turner, Jr., v. Terrill, 97 S. W. land to the defendant, James Claypool, who 396, 30 Ky. Law Rep. 89. As to the marbas occupied it ever since. By a stipulation riage of Wash with Daphne, it is not shown of record it is shown that Thomas purchased whether it was a slave marriage or a marthe land at the tax sale in 1896, and took riage by license. If it was a customary possession of it at that time, and that he and slave marriage before February 14, 1866, it those claiming under him, including the de- must be held to be valid, and Daphne enfendant, James Claypool, have since been in titled to the rights of widow. Ky. Sts. 1399b. possession of the land in question exclusively if they were married after February 14, and continuously, claiming it as their own. 1866, it is the ordinary case of marriage be

Matilda Claypool, the daughter of Wash tween free persons, and may be shown by and Susan Kelley, died in about 1909, leav- parol. ing two children, the appellants Hallie Keel [1] It is plainly shown that Wash and and Lena Jackson. When Peter Butts took Daphne lived together as husband and wife possession of the land in question under his until Wash's death; that they were treated tax deed of September 8, 1905, Daphne, the as husband and wife, and so considered by widow, surrendered possession to Butts, and their neighbors and the public generally, and never afterwards lived upon the land. that no one ever disputed that fact. In the Daphne died in 1905; and on July 31, 1916, absence of other proof upon that subject, this Lena Jackson, Hallie Keel, Malinda (now is sufficient proof to raise the presumption Smith), and Joe Kelley, as the heirs at law that they had been married in the manner of Wash Kelley, brought this action in eject- required by law. In Chamberlayne's “Modment against James Claypool to recover the ern Law of Evidence,” $ 2974, it is said: 12 acres of land bought from Cox and claim “The fact of marriage may be proved circuming rents at the rate of $50 per year, and $20 stantially by cohabitation, by the fact that the damages to the dwelling, making a total knowledged and to whom they gave the family

persons in question had children whom they acclaim, for rent and damages, of $270.

name, by the alleged husband's support of the Besides containing a traverse, the answer alleged wife and children, or by any acts or conputs in issue the marriage of Wash Kelley to duct of the parties probatively relevant.” Daphne. The answer further alleges that See, also, Rockcastle M., L. &. O. Co. v. defendant's grantor took possession of the Baker, 167 Ky, 66, 179 S. W. 1070; Chiles v. land in question under the sheriff's deed Drake, 2 Metc. 146, 74 Am. Dec. 406; 18 R. C. more than 20 years before the filing of the L. 426; L. R. A. 1915E, 34, note, to the same pe tion, and relies upon the defendant's ad- effect. verse possession of the premises for that pe As proof of the fact that Joe and Malinda riod in bar on the plaintiff's right of action. were Wash's children, it is further shown by The answer further claims a lien upon the H. L. Morehead, a son of T. J. Morehead, land for the value of the improvements put that shortly after the war Wash Kelley, who thereon in case the defendant should be then lived in the adjoining county of Warren, ejected; and it further puts in issue the went to the home of T. J. Morehead in Allen claim of the plaintiffs, or at least the claim county to claim his children, Joe and Malinof some of them, that they are the heirs of da; that T. J. Morehead told Wash he was Wash Kelley. The case was transferred to entitled to his children and could take them; the equity docket; and upon a trial the that the children objected strenuously, saying chancellor dismissed the petition. The plain- they wanted to remain with Mr. Morehead, tiffs appeal.

their former master, and did not want to go In order to pass upon the legal issues rais- with their father, but that Mr. Morehead ined by the pleadings, it becomes necessary to sisted upon Joe and Malinda going with first determine whether Wash and Susan Wash, whom he recognized as their father, were husband and wife; whether Matilda and that Wash finally took Joe and Malinda Claypool, Malinda, and Joe were their legal home with him. issue; and whether Daphne was the widow The doubt as to Matilda being the child of of Wash. The proof shows to a degree of Wash and Susan arose from the fact that, certainty much more satisfactory than is having been sold to John Claypool, she, folusual in cases of this character that Wash lowing the custom among slaves, took her Kelley and Susan were married in the in- master's name when she became free, and formal manner usual and customary among was thereafter known as Matilda Claypool, slaves, and that Joe, Malinda, and Matilda while her father was known as Wash Kelley. Claypool were the children of that marriage; But it is clearly shown that Matilda was the that Wash subsequently married Mary while child of Wash and Susan, and that she died they were slaves; and that after Mary's death leaving two children, the plaintiffs Lena Jackhe married Daphne. The slave marriage of son and Hallie Keel. There is, however, some

(1) siye.

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

BORDES et al. v. LEECE. Susan Kelley, and not through their putative father, Richard Chapman. Ky. Sts. $ 1397;

(Court of Appeals of Kentucky. March 5,

1918.) Cherry v. Mitchell, 108 Ky. 1. 55 S. W. 689,

1. EASEMENTS 36(1)--PUBLIC WAYS-BUR21 Ky. Law Rep. 1547. Having determined

DEN OF PROOF. that the plaintiffs are the heirs at law of Where the public generally have used a Wash Kelley, and have the right to maintain passway for 15 years under a claim of right, this action, and that Daphne was Wash's dertakes to close the passway, the burden is on

and the owner of the servient estate then unwidow, the decision of the case depends upon him to show that the use was merely permisthe determination of two questions: What estate did Peter Butts take under the 2. EASEMENTS C 26(1) PUBLIC WAYS

ABANDONMENT. sheriff's deed? and (2) If he took less than a

Where a passway has been once established fee, when did limitation begin to run?

by adverse use, the right of the public to use [2] Upon the death of Wash Kelley the fee the passway can be defeated only by a prohiin this tract of land vested in his children, 15 years, or by a voluntary abandonment of its

bition of the public's use thereof for a period of Joe Kelley, Malinda Smith, and Matilda Clay- use by the public. pool, subject to the rights of the widow, Daph- 3. EASEMENTS Om36(3)-PUBLIC WAYS--PERne Kelley. No dower was ever allotted to

MISSIVE Use.

Mere fact that improper use of a passway her out of the land, and she continued to oc- unnecessarily damaging it was objected to did cupy it as widow. She had no other interest, not establish that the use was merely permisand held as widow, and not as an heir; her

sive. interest being a life estate at most. While

4. EASEMENTS 36(3)–PUBLIC WAYS-PER

MISSIVE USE. she thus occupied the land it was sold as Mere fact that one person paid for the use her land for taxes. But the sheriff did not of a way over the same land, but not conformattempt to sell any more than Daphne's inter- ing to the alleged prescriptive way, did not esest in the land, and the title acquired under tablish that the use of the latter' was merely

permissive. the sheriff's deed was only such as she had, 5. EASEMENTS C36(3) PUBLIC WAYS that is, an estate for her life. East Kentucky CHANGE IN LOCATION. Coal Lands Corp. v. Commonwealth, 127 Ky. by mutual assent of the owner and the public,

Changes in location, within the same tract, 720, 106 S. W. 260, 108 S. W. 1138, 32 Ky. and for convenience of the public, did not esLaw Rep. 129, 33 Ky. Law Rep. 49; Rogers tablish that an alleged prescriptive way was v. McAlister, 151 Ky. 488, 152 S. W. 571; Mc- only permissive. Dowell v. Hollowell, 173 Ky. 543, 191 S. W. Appeal from Circuit Court, Rockcastle 315; Hall v. Hall, 174 Ky. 360, 192 S. W. 76; County. Smith v. Young, 178 Ky. 380, 198 S. W. 1166. Injunction suit by Alfred Leece against Consequently, upon the death of the widow, Sylvan Bordes and others. Decree for plainDaphne, in 1905, J. W. Claypool's interest in tiff, and defendants appeal. Affirmed. 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 CLAY, C. Plaintiff, Alfred Leece, brought of the widow, the action was not barred by this suit against defendants Sylvan Bordes limitation. Kentucky Statutes, $ 2505; Smith and Julian Bordes, to enjoin the obstruction v. Young, supra.

of a passway. He was granted the relief [4] But as the defendant acted in good prayed for, and the defendants appeal. faith, believing he was the owner of the land The passway in question extends from the he is entitled to a lien upon the land to the Crab Orchard road through the lands of extent that he or his grantor has enhanced its Frank Robbins, thence through the lands of salable value by improvements.

plaintiff, thence through the Bordes lands to The Chancellor therefore erred in dismiss- the Copper Creek road. The passway passes ing the petition. He should have granted the through several gates, there being two gates prayer of the petition, by giving the plaintiffs on the Bordes land; one where the passway

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

men

enters the premises, and one on the Copper passway can be defeated only by a prohi. Creek 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. SS1, 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 [3, 4] We do not consider plaintiff's objecBroadhead without let or hindrance and un- tion to the use of the passway by Hoskins and der a claim of right for about 40 years. the men hauling staves as sufficient to show Originally the passway was along a branch that the use of the passway was merely for part of the way, but in order to avoid permissive, since the circumstances under the worn and washed out places, the public which the objections were made show very traveled over the higher and firmer ground clearly that it was the improper conduct of and the passway deviated from the original Hoskins and the injurious use of the road by location for a few feet in places to as much the stave

that plaintiff protested as 200 yards or more in other places. At against, rather than the mere right to use that time the Bordes land was not uninclos- the passway in question. Nor can the fact ed woodland, but had been cleared, and was that Francisco purchased a different right an old field. Later on the passway was re- of way over the Bordes land be regarded as turned to the branch route, and has existed controlling. along this particular route for about 8 years. [5] We also conclude that the changes in Plaintiff says that these changes were made the passway were not material under the by the public with the knowledge and acqui- facts of this case. Plaintiff showed that he escence of the owners of the Bordes land, and the public generally had used the passand for the mutual convenience of those en-way over the defendant's land for a period titled to use the passway.

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 other s. w. 867, 32 Ky. Law Rep. 642. routes and possibly a third route by which

Judgment affirmed. he could reach the public road. Defendants also showed that plaintiff denied to Bev. Hoskins, the son of a neighbor, the right to use the passway. On another occasion he ob- EUREKA COAL CO. v. KENTUCKY-TENjected to some stave men hauling heavy

NESSEE COAL CO. timber over the passway. On another occa

(Court of Appeals of Kentucky. March 5, tion Mr. Francisco, in the early '70's, put a

1918.) mill on the Copper Creek road on the Bordes land, and paid for the right to haul his mill

APPEAL AND ERROR 1178(6)-DETERMINA

TION-REMAND. supplies through the Bordes land. Accord In an action to compel defendant coal coming to plaintiff, however, he notified Hoskins pany to allow plaintiff to use its spur railroad to keep off his premises because the boy had of land owned by plaintiff

, where plaintiff pray

for transportation of coal from several parcels shot his dog, and objected to the hauling of ed permission to use the railroad without comheavy timber over the passway on the sole pensation, and in the alternative for the right ground of unnecessary injury to the road. to use it upon payment of reasonable compensaIt was further shown that Francisco did not authorized plaintiff to use the railroad for the

tion, the trial court rendered judgment which pay for permission to use the passway in transportation of coal mined from a particular question, but for the right to go over the parcel without compensation, but denied the Bordes land on the right-hand side of the right to use the road for transportation of oth

er coal. It appeared on appeal that plaintiff branch where no passway existed.

was willing to pay a fair price for the use of [1, 2] It is well settled that where the the railroad for hauling coal from its other public generally have used a passway for 15 lands, and that defendant did not object to years under a claim of right, and the own that as the trial court ignored plaintiff's peti

such use on payment of compensation. Held, er of the servient estate then undertakes to tion for use of the railroad on payment of comclose the passway, the burden is on him to pensation and unqualifiedly denied the right,

determine the Supreme Court cannot

the show that the use was merely permissive. amount of a reasonable compensation, and the Lyles v. Graves et al., 147 Ky. 807, 145 S. W. case should be reversed and remanded to the 762; Smith v. Pennington, 122 Ky. 355, 91 trial court for the determination of that issue. S. W. 730, 28 Ky. Law Rep. 1282, 8 L, R. A. Appeal from Circuit Court, Whitley County. (N. S.) 149. It is also the rule that where a Action by the Eureka Coal Company passway has been once established by ad-against the Kentucky-Tennessee Coal Comverse use, the right of the public to use the l pany. From a judgment granting plaintiff

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

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