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of the widow, the executrix, to sell and con- who understood the meaning of the language vey this house and lot.

[2] This language of the will, taken by itself, would seem to have that effect; but it does not so appear when considered in connection with the will as a whole. In the first part of the clause above copied, he devised to his wife, Henrietta Levy, all the rest and residue of his estate of every kind, wherever situated, for and during her life, with full and complete power and authority to sell, dispose of, convey, invest, and reinvest the same, or any part thereof, or the proceeds thereof, from time to time as she may deem proper. Further along in the same clause he used the following language: "I give, bequeath and devise all that may remain at the death of my wife of my estate given and devised by this clause to her as follows." He then continues by giving onehalf of what remained to his son, and by disposing of the other one-half as follows: "The other one-half of my estate given and devised to my wife by this clause and remaining at the time of her death I give and devise to the Fidelity Trust & Safety Vault Co. of Louisville, Ky., as trustee and in trust for my daughter, Lena Tachau, for and during her life, with remainder over upon my said daughter's death as hereinafter set forth." Thus it will be seen that the language of the will which permitted Lena Tachau to occupy the house free of charge had reference to her occupancy after the death of Henrietta Levy, and while the daughter's estate was in the hands of the Fidelity Trust & Safety Vault Company. It is evident that the testator did not use this language intending to limit the power that he had given his wife to sell and convey his property during her life. He seems to have had great confidence in the honesty and business ability of his wife. He expressly, without any character of limitation, invested her with full and complete power to sell and convey all of his estate, both real and personal, or any part thereof.

The only language in the will which it is claimed placed any limitation upon the wife's right to sell and convey is that copied above, and that is only applicable after the death of Henrietta Levy, at which time the daughter's estate is to be in the hands of the Trust Company. He knew and was willing to risk the love of the mother for the daughter; and he knew that, as he had devised the mother considerable property, she would provide for the daughter and protect her interests. Taking the will as a whole, it seems that he scarcely expected his wife to dispose of these houses and lots, and expected that they would be undisposed of at her death; but there is nothing in the will indicating a purpose on his part to limit his wife's right in that respect. He was willing to risk her business acumen in that regard. The will appears to have been prepared by a person

used. The will is plain and unambiguous, and there is no necessity to discard, transpose, or to supply words, or to change sentences, etc., to arrive at the true intention of the testator. It appears that the widow, in her individual right and as executrix, conveyed both of the houses and lots to Mrs. Leeds. Her daughter and son both joined in the deed, but unnecessarily. Her right and power was complete under the will of her husband, and her deed alone would have been sufficient to convey the fee-simple title to Mrs. Leeds.

For these reasons, the judgment of the lower court is reversed and the cause remanded, with directions to the lower court to dispose of the matter as indicated in the opinion.

HATFIELD v. HATFIELD. (Court of Appeals of Kentucky. Nov. 27, 1912.)

1. EASEMENTS (§ 3*)-RESERVATION of WayAPPURTENANCES.

Where a grantor of land reserved for himself a way to the highway, such reservation, being for the benefit of land retained, is an appurtenance to that land, and passes to the grantor's subsequent grantee, though not expressly mentioned in the deed.

[Ed. Note.-For other cases, see Easements, Cent. Dig. 88 8-12; Dec. Dig. § 3.*] 2. EASEMENTS ( 44*)-EXTENT OF RIGHTWAYS.

A grantor reserved through the land granted an existing way to the public highway. The way struck the highway at such an angle that to turn to the left it was necessary to make a short turn up an incline, and, to avoid this, the grantor habitually drove across the highway making a curve on his land across the road, thus having an easy turn to the left. Held, that, upon repair of the highway obviating this dangerous curve, the right of the grantor or his subsequent grantees to use the land across the highway was lost.

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 98-100; Dec. Dig. § 44.*]

Appeal from Circuit Court, Grayson County.

Action by William H. Hatfield against George L. Hatfield. From a judgment for defendant, plaintiff appeals. Affirmed.

G. W. Stone and J. C. Graham, both of Leitchfield, for appellant. Chas. V. Higdon and Z. T. Proctor, both of Leitchfield, for appellee.

HOBSON, C. J. William Hatfield brought this suit against George L. Hatfield to recover damages for the stopping up of a passway by the latter. On a trial of the case before a jury there was a verdict and judgment for the defendant. The plaintiff appeals.

The facts of the case are these: H. C. Wooldridge, who then owned a tract of 2531⁄2 acres of land, conveyed 138 acres of

In August, 1911, the road supervisor repaired the public road and put it back on its original location, and, when this had been done, George L. Hatfield put his fence along the line of the public road, so that William Hatfield could no longer drive on the curve beyond the road indicated by the figures xyz on the plot; this curve being 100 feet long, and there being a space of 10 feet between it and the county road at the widest place. The thing in controversy is the right of William Hatfield to drive over the curve xyz, which is on the other side of the county road from his place. The circuit court told the jury that the reservation of the passway in the deed from H. C. Wooldridge to George L. Hatfield gave the plaintiff no right to the passway beyond the public road, or that part embracing the curve xyz. Of this instruction appellant complains.

the tract to George L. Hatfield. The public road leading from Big Clifty to Clarkson ran through the tract. Wooldridge had a passway leading out to the road and striking the road at an angle, so that to turn toward Clarkson it was necessary to make a rather sharp curve up an incline. To avoid this, for a number of years Wooldridge had driven across the road, making a curve on his own land beyond it, and coming back to the public road. The public road had become washed, and the public had for some years followed this curve, and had not traveled the public road. In this condition of things in the deed to George L. Hatfield Wooldridge inserted the following stipulation: "It is expressly understood and agreed by the parties hereto that the road and right of way now existing through the tract hereby conveyed, shall remain open to the party of the first part." On January 4, 1909, Wooldridge sold and conveyed to W. H. Hatfield the remaining 115-acre tract which he owned. In this deed there is no mention of the passway referred to, but by it Wooldridge conveyed the land "together with all the appurtenances thereunto belonging." The situation at the time this deed was made is shown by the following plot:

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[1] The purpose of Wooldridge in making the reservation was to retain for himself a way out when he sold the land lying between himself and the public road. This reservation was made for the benefit of the tract which he still owned and afterwards sold to William H. Hatfield. It was an appurtenance to that tract and passed to the grantee of that tract though it is not expressly mentioned in the deed; for, being an appurtenance, it ran with the land. Gibson v. Porter, 15 S. W. 871, 12 Ky. Law Rep. 917; Kamer v. Bryant, 103 Ky. 729, 46 S. W. 14, 20 Ky. Law Rep. 340; Ray v. Nally, 89 S. W. 486, 28 Ky. Law Rep. 425. But what Wooldridge reserved was a passway out to the public road.

[2] The right of way referred to in the deed was the right of way to the public road. When he reached the public road, the right of way ended. The object of the reservation was to give him a way out to the public road. It was not contemplated that he should have a right of way beyond the public road. It is true that he had been in the habit of driving beyond the road for convenience, but a reservation in a deed should not be extended so as to give him rights beyond the public road, when the purpose was to give him a right of way out to the road. We therefore conclude that the circuit court properly instructed the jury that the defendant had the right to close up the curve on the far side of the road. If Wooldridge had continued to own the whole tract, can it be believed that he, when he fenced and cleared the land, would have kept up this curve on the far side of the public road, after that road was put back in its original location? In the construction of a reservation of a passway in a deed the grantor cannot demand of his grantee greater rights than a man would reasonably exercise in his own right if he owned both pieces of land. Each must exercise his rights with due regard to the rights of the other.

plate that in time the land would be cleared and inclosed, and they cannot be presumed to have contemplated that there should be two roads here, after the county road was put back in the proper place and the land was cleared and inclosed.

But under the deed William H. Hatfield has a right of way out, and, if the angle is too sharp for him to turn with reasonable convenience toward Clarkson, he is entitled to have the passway widened at this point so as to have a reasonable space to turn in the direction of Clarkson. No doubt the parties can agree as good neighbors upon a reasonable cutting off of the sharp angle at the point a; but if they cannot, and George Hatfield obstructs this angle so as to prevent William Hatfield from having a reasonable outlet in going in the direction of Clarkson, he may have remedy.

There is no question of adverse possession in the case, as the rights of the parties accrued when their deeds were made in 1908 and 1909. Before this all the land belonged to Wooldridge, and George L. Hatfield now owns his body of land subject to the reservation made in his deed. Judgment affirmed.

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NUNN, J. This action was brought by appellant, a resident of subdistrict No. 1, of district No. 3, to enjoin the county board of education of Edmonson county from erecting a schoolhouse on a certain site which had been selected by the board. On a trial in the lower court the injunction was dissolved, and the action dismissed.

It appears that the place where the trustees were having the house erected was called the "old site"; that it was the place where the common school had been maintained in the district for at least 60 years; that it was used as such for at least 40 years before the trustees obtained a deed for it. It further appears that appellant's vendor and one of his adjoining neighbors made the deed to the district, and inserted therein the following clause: "Should the lot of

RITTER V. BOARD OF EDUCATION OF ground cease from any cause to be the site

EDMONSON COUNTY.

(Court of Appeals of Kentucky. Dec. 3, 1912.) 1. SCHOOLS AND SCHOOL DISTRICTS ($ 69*)SCHOOLHOUSE-ABANDONMENT OF SITE.

The intention of a school board to change the site of a school and the letting of a contract to build on the new site on which work was begun, but discontinued by order of the board, who decided to build on the old site, was not an abandonment of the old site with in a deed providing that, on abandonment for school purposes, the site should revert to the grantors; school at the time being taught in it.

for the common school of said district said house then standing is to be the property lot is to revert to its grantors, and the of the district to be removed from said lot."

[1] It appears that from four to six months before the board selected the old site upon which to erect this house it had selected another site 200 or 300 yards distant from the old site; that it had let the contract to build the house on this site, and the contractor had commenced the work. Appellant claims that by these acts the district abandoned this property, and it reverted to the grantors in the deed, or their heirs or 2. SCHOOLS AND SCHOOL DISTRICTS (8 68*)-assigns, and that he was entitled to most STATUTES-SCHOOLHOUSES-TITLE TO PROP

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 174; Dec. Dig. § 69.*

ERTY.

A school board may erect a school on a site held under a deed providing that, on the abandonment of such site for common school purposes, the site should revert to the grantor under Ky. St. § 4426a, giving the board power "to purchase, lease or rent school sites." Section 4437, requiring a fee title for schoolhouse lots, being an earlier statute, and in conflict, does not apply.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. 88 170-173; Dec. Dig. § 68.*]

3. SCHOOLS AND SCHOOL DISTRICTS (68*)SCHOOLHOUSES-SCHOOL BOARD-DISCRE

TION.

In an action to restrain the erecting of a schoolhouse, evidence held to warrant a finding that the board did not abuse its discretion in choosing the old site.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 170-173; Dec. Dig. 68.*]

of the lot as his grantor conveyed most of it. It appears that, soon after the contractor began work on the new site, the board of education notified him to cease work; that within a few days after giving the notice the board met in the old schoolhouse, and considered the matter with reference to the change of site, and adjourned to meet another day; that they did meet again and finally rescinded the order making the change to the new site, and selected the old site, and directed the building to be erected there. There is nothing in the statutes to prevent the board from changing its mind and rescinding the order referred to. It had a perfect right to do so, and to select another place for the erection of the schoolhouse. The intention, which existed for a few months, to change the site of the school

For these reasons, the judgment of the lower court is affirmed.

LONG v. BARBER ASPHALT PAVING
CO. et al.†

(Court of Appeals of Kentucky. Nov. 29,
1912.)

1. MUNICIPAL CORPORATIONS
STREETS-EXISTENCE.

646*) (§

house, did not have the effect of itself to | appellee's witnesses testified that the rock
abandon the old site. The house on the old could be removed without much expense.
site was still in use-school was at that A large majority of the school patrons of
time being taught in it. The site was never the district petitioned the board to erect
changed. The intention of changing it was the house on the old site, and we cannot
abandoned before the removal was complete. say that the evidence shows that it abused
[2] Appellant contends that the board had its sound discretion in doing so.
no right to erect the schoolhouse upon the
old site, as it did not have the fee-simple ti-
tle to it, and that his action ought, there-
fore, to have been sustained for two rea-
sons: First, because the district had aban-
doned this site; second, because the deed
containing the clause above quoted shows
that the district had not the fee-simple title
to the lot. The first reason, as above stated,
is without foundation. As to the second,
it is our opinion that the board had such a
title as would authorize it to construct the
building thereon. Section 4426a, Kentucky
Statutes, says the county board of educa-
tion shall have the power "to purchase, lease
or rent school sites, to build, to repair and to
rent schoolhouses," etc. This seems to be
conclusive of the board's right to erect the
house. Appellant's contention is that section
4437, Kentucky Statutes, an act of 1893, re-
quires the school board to own the property
in fee simple. It seems that this act is in
conflict with the act of 1908 referred to in
section 4426a, for this section expressly pro-
vides that the county board of education has
power to purchase, lease, or rent school-
house sites. See, also, Evans v. Cropp, 141
Ky. 514, 133 S. W. 221.

[3] Appellant also contends that the county board abused its discretion in selecting the old site upon which to erect the schoolhouse, as the ground is rough, steep, and covered with large rocks; that it is unsanitary because the spring from which the school obtains water is lower than the schoolhouse, and is polluted by drainage from the school grounds, and therefore injurious to the health of the children attending the school. There was much testimony introduced showing that appellant's contentions are correct, but there was much more introduced showing that his claims were without foundation; that the place selected was better suited than any other near the center of the school district; that it was a nice shady place; that the spring afforded fine water, and was within 30 or 40 steps of the house; that the drainage from the school grounds entered a branch, but none of it flowed into the spring; that the spring is not what is called a "boiling spring," but came from under a large hill back of the schoolhouse; that the new site spoken of was more level than the old site, but had no shade or water nearer than the old site. It is admitted that the old grounds are rough, that it has considerable rock scattered over it, which appellant's witnesses said were dangerous to the children, but

Where a street improved for travel has not been dedicated to the public or accepted or recognized by the municipality as such, the street is not a public street, though the owners intend to dedicate it to the public.

[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. § 1419; Dec. Dig. §
646.*]

2. MUNICIPAL CORPORATIONS (§ 450*)-STREET
IMPROVEMENTS-ASSESSMENT DISTRICTS.

Where territory on one side of a street
to be improved at the cost of territory in an
assessment district was divided into squares by
streets, while the territory on the other side
was not so divided, the assessment district on
the latter side must be limited to a line run-
ning the same distance from the street that the
line on the other side of the street is run.

[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. 88 1073, 1074; Dec.
Dig. 450.1
3. MUNICIPAL CORPORATIONS (§ 465*)-STREET
IMPROVEMENTS ASSESSMENTS.

Where an assessment district for a street
improvement has been properly fixed, the cost
property in the district, so that all of the prop-
of the improvement must be apportioned to the
erty will bear its just proportion of the cost.
[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. § 1108; Dec. Dig. §1
465.*]

4. VENDOR AND PURCHASER (§ 198*)—INCUM

BRANCES-LIENS FOR STREET IMPROVEMENTS.

Since a lien for the cost of a street improvement does not attach until the apportionment warrant has been issued, land in an asfor the improvement and the letting of the consessment district conveyed after the ordinance tract but before the work was done is not then incumbered by such a lien.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 408-412; Dec. Dig. § 198.*]

Appeal from Circuit Court, Jefferson Coun-
ty, Chancery Branch, Second Division.

Action by the Barber Asphalt Paving Com-
pany against George W. Long, who filed a
cross-petition against Nancy Jane Birch.
From a judgment for plaintiff and in favor
of Nancy Jane Birch on the cross-petition, de-
Reversed as to plaintiff,
fendant appeals.
and affirmed as to Nancy Jane Birch.

A. Lanier and Du Relle & Fleece, all of
Louisville, for appellant. William Furlong
and Furlong, Woodbury & Furlong, all of
Louisville, for appellees.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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LASSING, J. By an ordinance approved ceiving that the apportionment was inequitApril 7, 1910, the city council of Louisville able and unjust, George W. Long and cerordered the original construction of Bayly tain other property holders declined to pay avenue from Frankfort avenue to Center the warrants issued against their property. avenue extended, and directed that "said The contractor instituted suit, in which it work should be done at the cost of the own- sought to have their property subjected in ers of the ground on the east side of Bayly satisfaction of the warrants. In his answer avenue from Frankfort avenue to the center the defendant, Long, resisted payment upon line of Center avenue extended and extend- three grounds: First, that the ordinance was ing back to a line midway between Bayly invalid, because the provisions of sections avenue and a private way, known as Birch- 2832 and 2833, Kentucky Statutes, had not wood avenue; and on the west side of Bayly been followed; second, because council erred avenue to the center line of Center avenue in fixing the east line of the assessment disextended and extending to the line midway trict a greater distance from Bayly avenue between Bayly and Ellwanger avenues." On than the western boundary line of said disMay 16th following a contract for the orig- trict was situated from said avenue; and, inal construction of this street was awarded third, because certain property within the to the Barber Asphalt Paving Company. On zone of the improvement was entirely omitted July 15th, and before the work was begun from assessment. He also made his answer on the contract, George W. Long purchased a cross-petition against his vendor, Nancy of Nancy Jane Birch a tract of land lying, in Jane Birch, and pleaded as to her that, inpart, within the zone affected by this im- asmuch as the improvement had been directprovement, said property being shown on the ed and the contract therefor let prior to his accompanying map by the letters x, y, v, z. purchase of the property, under his contract

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Work was begun shortly thereafter on the | with her she was answerable on her warcontract, and it was completed early in October. Immediately upon its completion, apportionment of the cost was made and warrants therefore were by the city of Louisville issued and placed in the hands of the contractor. In apportioning the cost, the city followed the provisions of the ordinance fixing the assessment district. The eastern boundary of the assessment district is evidenced by the dotted lines A-B, and the west

ranty for any assessment which should be made against his property, and sought to have her required to pay such assessment as the court should, upon final hearing, hold his property answerable for. Issue was joined, proof taken, and upon final hearing the chancellor was of opinion that there was no merit in these respective contentions of the defendant, Long, and judgment was entered in accordance with the prayer of the petition,

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