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Cuit judge and Outside of the jurisdiction of the courts presided over by him, as fixed by the Constitution. That this is the ground upon which the decision in the Cammack Case is based appears from the following excerpt from the Opinion in that case: “It is clear that there may be duties imposed upon the judge as an individual which do not belong to, or constitute a part of, the jurisdiction of his court, and which may not be intended by the Legislature to be a part of it; and td this class clearly belong the duties of special judge. It is manifestly not a part of the regular jurisdiction of one circuit court that its judge should hold special court in a different district when the occasion for the discharge of such duties arises. So that, clearly, it is not a part of the jurisdiction of any circuit court of this commonwealth that its judge shall discharge the duties of special judge in any other district; and although it may be within the competency of the Legislature to impose the duties of holding special court upon the regular judges, these duties are not a part of the regular jurisdiction of their courts, but entirely outside of that jurisdiction. They are duties which the Legislature can either impose upon the regular circuit judge of the state or not, as it sees proper. They are duties which the Legislature can With equal propriety impose, or authorize to be imposed, upon any other members of the bar of the state qualified to hold circuit court. A special judge need not be a regular circuit judge; he may be any person authorized by law to preside as special judge.” Again, in that opinion, the court further Said: “The duties of a special judge are performed outside of the regular judge's district, and they have no legal connection with his regular duties. The duties of a special judge by the act in question are imposed upon the judge as an individual, and are not a part of the duties of his office. To remunerate him for these duties is not an increase of the salary of his office within the meaning of the constitutional inhibition. The Legislature may add them or not, as it pleases, and afterwards, if it sees proper, may repeal the act and deprive the judges of the opportunity to perform the extra labor and receive the extra salary without in any wise changing their compensation within the meaning of section 235. So far as the performance of the duties of special judge are concerned, the regular judges stand as any other qualified individuals. They may be appointed by the legislative power or not, as the General Assembly deems proper.”

It will thus be seen that the reason for the rule in the Cammack Case not only clearly distinguishes it from the Duffy Case, but makes it inapplicable to the case at bar.

[1] As We understand this case, it comes clearly within the rule laid down in the Duffy Case which prohibits the Legislature from changing the salary of the appellee, or any public officer, during his term of office. Section 12 of the act of 1918, above quoted, like the former provision of section 63a of article 2, chapter 5, of the Kentucky Statutes, constitutes the state live Stock Sanitary board, of which the commissioner of agriculture, labor, and statistics, by Virtue of his office, is chairman. That Was the Same position he held under the Old Statute, although We do not consider that fact material under the broad language of the Constitution. As above point

ed out in the Cammack Case, while the Legislature has the right to change the duties of the Office, it could not change the compensation of the officer during his term. [2] The right to impose new ex officio duties upon a public officer, without compensation, is recognized by section 1749, SubSection 5 of the Kentucky Statutes, which reads as follows: “No fee bill shall be made out, or compensation allowed hereafter, for any ex officio services rendered or to be rendered by any officer.” If, therefore, these new duties had been imposed upon the appellee for the first time by the act of 1918, without any additional compensation being provided therefor, can it be doubted that appellee would have been required to discharge the new duties free of compensation? Clearly not. Morgantown Bank v. Johnson, 108 Ky. 507, 56 S. W. 825, 22 Ky. Law Rep. 210; Mitchell v. Henry County, 124 Ky. 833, 100 S. W. 220, 30 Ky. Law Rep. 1051; James, Auditor, V. Duffy, supra; Owen County v. Walker, 141 Ky. 516, 133 S. W. 236. It follows, therefore, that the question of the comparative duties of appellee under the Old and under the new Statute can have no bearing upon the question. He Cannot measure his increased new duties against his former duties for the purpose of claiming increased compensation any more than the State can measure his reduced new duties against his former greater duties for the purpose of diminishing his compensation during his term of Office. This question has been before this court SO many times, it will be sufficient to notice only a few of the cases Supporting the rule above announced. In Board of Education of Lexington v. Moore, 114 Ky. 640, 71 S. W. 621, 24 Ky. Law Rep. 1478, the salary of the treasurer Of the city of Lexington had been fixed at $1,800 per annum by a city ordinance. Later, and during the term of office of Moses Kaufman as city treasurer, the board of education undertook to increase the compensa. tion of the city treasurer, who was by law also required to be treasurer of the board of education, in the Sum of $200 per annum. This court, however, held that the treasurer could not thus have his compensation indirectly increased during the term of his office. In McCracken County V. Reed, 125 Ky. 420, 101 S. W. 348, 31 Ky. Law Rep. 31, the court had before it the application of a statute authorizing certain cities of the second class to Supplement the Salary of their reSpective circuit COurt judges. The fiscal court of McCracken county undertook to increase the compensation of Judge Reed during his term of office; but this court held that the action of the fiscal court in this, re. spect violated the Constitution, since the Legislature could not directly or indirectly accomplish a change in the COmpenSation Of an officer during his term of Office. In that Opinion it Was said:

“What the Tegislature cannot do directly it cannot do indirectly through the agency of one of its creations. The purpose of the constitutional provision was to secure to the public officers a certain fixed compensation, so that they would be independent of the Legislature. It was also designed to prevent official power and position from being used by the officer to Increase the emoluments of the officer after he secured the office. The constitutional provision would be rendered entirely nugatory, and the door would be opened to every evil which the Constitution intended to prevent, if the Legislature, instead of increasing directly the Salaries of public officials after their election, could authorize the fiscal courts or other municipal authorities to make such increase. In fact, this construction of the Constitution would tend to increase the evils which this provision of the Constitution was intended to prevent. The act is not invalid. It is simply inoperative as to circuit judges elected before its enactment or before the annual additional compensation provided for by the act is fixed by the county or the city authorities.”


To the same effect, see Commonwealth v. Addams, Clerk, 95 Ky. 588, 26 S. W. 581, 16 Ky. Law Rep. 135; Bright V. Stone, Auditor, 43 S. W. 207, 20 Ky. Law Rep. 817; Common Wealth W. Carter, 55 S. W. 701, 21 Ky. Law Rep. 1509; McNeW, Judge, V. Commonwealth, 93 S. W. 1047, 29 Ky. Law Rep. 540; Frizzell v. Holmes, 131 Ky. 373, 115 S. W. 246; Clark V. Logan County, 138 Ky. 676, 128 S. W. 1079; Fiscal Court of Mercer County v. Gibbs, 166 Ky. 434, 179 S. W. 409; Beauchamp V. Snider, Judge, 170 Ky. 220, 185 S. W. 868; Anderson v. Burton, 174 Ky. 456, 192 S. W. 519.

The reasoning found in the extract last above quoted applies with equal force to the case under consideration. There is no subStance in the COntention that the duties imposed upon appellee by the act of 1918 are different in character from his duties under the former statute, and that the case falls Within the class of cases represented by the Cammack Case. The distinguishing feature of that case, and others of the same class, like Slayton V. Rogers, 128 Ky. 106, 107 S. W. 696, Flowers v. Logan County, 138 Ky. 59, 127 S. W. 512, 137 Am. St. Rep. 347, and Thomas v. O’Brien, 138 Ky. 774, 129 S. W. 103, has been pointed out. There the additional compensation Was given the Officer for services which were entirely different from his Official duties. But here the new duties are imposed upon appellee by Virtue of his Office. At most appellee's duties are Only increased; but this, as We have seen, did not, of itself, entitle him to an increased compensation, and did not interfere with the Operation of Section 235. Of the Constitution.

No One Will claim that the Legislature could have directly increased the appellee’s compensation during his term Of Office by passing an act increasing his salary as commissioner of agriculture, labor, and Statistics to the extent of $1,500, or any sum whatever; and if this cannot be done directly, the reason for refusing to permit a Violation of

the Constitution by indirection is even more impelling. If the act now before us, in SO far as it increases the salary of the appellee, should be sustained, the prohibition contained in Section 235 of the COnStitution amountS to nothing, and all the Legislature would hereafter have to do to successfully evade it WOuld be to add a few Simple duties to the Office and increase the compensation to Suit

the pleasure of the Legislature, for, if the

Legislature has the right to make any increase in Salary, the size of it is Of no Concern to the courts. The purpose of the conStitutional inhibition Was to prevent precisely What was here indirectly attempted.

We are clearly of opinion the circuit court erred in overruling the demurrer to the petition.

Judgment reversed.

(181 Ky. 181) CLAY et al. V. CLAY et al. (Court of Appeals of Kentucky. June 18, 1918.)

WILLs <>634(13)—CoNSTRUCTION-INTEREST DEVISED–VESTED REMAINDER. Under clause of will directing “that one of the shares shall belong to and be paid annually by said trustees to such of the children of my nephew Julian Clay as survive me, born in lawful wedlock, and per stirpes to the descendants of such of his children as may then be dead, an equal portion to each, that is such children and such designated descendants as are in being at the time of my death, to them during their lives, to their issue per stirpes for 21 years after the death of said designated children and their said designated descendant,” the children of Julian Clay took Only an estate for 21 years after the death of the first takers, so that in a suit by her children under Civ. Code Prac. § 491, for the purpose of having the land sold and the proceeds reinvested, the heirs at law of testator were necessary parties, since the remainder vested in them in fee.

Appeal from Circuit Court, Clark County.

Suit by Oliver K. Clay and others against Oliver Lurton Clay and others. Petition dismissed, and plaintiffs appeal. Affirmed.

John A. Judy, of Mt. Sterling, for appellants. Harvey T. Lisle, of Winchester, for appelleeS.

CARROLL, J. Alexander H. Anderson in his Will directed that his estate be divided into six equal shares, and clause E reads as follows:

“I direct that one of the shares shall belong to and be paid annually by said trustees to such of the children of my nephew Julian Clay as survive me, born in lawful wedlock, and per stirpes to the descendants of such of his children as may then be dead, an equal portion, to each, that is such children and such designated descendants as are in being at the time of my death, to them during their lives, to their issue per stirpes for 21 years after the death of said designated children and their said designated descendant.”

The other five clauses, distributing his estate, contained substantially the same provisions and conditions.

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After the will had been probated the estate devised, Which apparently consisted of land, was divided into six equal shares, and one of these shares containing 72 acres was set apart to the three children of Julian Clay for and during their natural lives. Thereafter the three children of Julian Clay brought this suit under Section 491 of the Code of Practice against all of their living children for the purpose of having the land sold and the proceeds reinvested. The lower court, on motion of the guardian ad litem for the defendants, all of whom were infants, sustained a general demurrer to the petition, and the plaintiff declining to plead further, the petition was dismissed, and they appeal. The suit was dismissed upon the ground that the heirs at law of the testator, Anderson, were necessary parties to the action, and so the only question is, did the children of Julian Clay, and their descendants, take the fee in the land, or only an estate for 21 years after the death of the first takerS 2 The lower Court Was Of the opinion that the testator made no disposition of the devised estate after the expiration Of the life or lives in being at the time Of his death, and the period of 21 years thereafter, and therefore the fee in remainder Wested in his heirs at law; and if this COnstruction is correct, it is, of course, clear that the heirs at law of the testator owned a Wested interest in the eState, and Were necessary parties to the Suit seeking to have it Sold for the purpose of reinvestment.

It is contended by counsel for the appellants that:

“It was the intention of the testator. to set aside one-sixth of his estate to the children of Julian Clay and entail it to them as long as it was possible for him to do so under the law,

and then the fee simple should belong to that branch of the family.”

While, on the other hand, it is the contention of the guardian ad litem, represent

ing the appellees, that the testator “devised his property to six different groups of devisees, giving to them a certain portion of his estate for their lives and 21 years thereafter, that he made no disposition of his estate at the end of the life or lives in being at the time of his death, and the period of 21 years thereafter, and therefore the remainder was undisposed of by him, and immediately upon his death the fee in remainder Vested in his heirs at law.”

The Will of the testator was evidently prepared with care, and, there is no room for supposing that the testator, through ignorance of the law, or by mistake, or inadVertence, disposed of his estate otherwise than he intended to do. He had the right to make the disposition he did, and that he intended to so dispose of his estate is made plain by the fact that in five separate clauses, disposing of five different shares in his estate, he used the same words and gave to each class living at his death for their lives and to their issue for 21 years after the death of the designated devisees the estate, but left undisposed of the remainder, and being undisposed of, the remainder Vested in the heirs at law of the testator as undevised estate; therefore the heirs at law of the testator were necessary parties to the Suit.

It should here be said that the guardian ad litem filed a Special as Well as a general demurrer, but the special demurrer was overruled and the general demurrer Sustained. Whether the court Committed error in overruling the Special demurrer is not material, because the real question in the case is the proper construction of the clause of the Will in dispute, and being of the opinion that the children of the children of Julian Clay did not take the fee as contended by counsel for the appellants, the judgment of the lower court, in effect SO holding, is affirmed.

(181 Ky. 123) - CITY OF LUDLOW v. BRODERICK. * (Court of Appeals of Kentucky. June 14, 1918.)

1. WATERS AND WATER CouRSES <>119(1)– SURFACE WATER. Lower lands are subject to the servitude of receiving the ordinary and natural flow of surface Water. 2. WATERS AND WATER COURSES @:150-ACCUMULATION OF SURFACE WATER—ACTIONLIMITATIONS. Right to complain of the installation of sewers and drains taking surface water from higher land under a street onto lower land on the other side is lost by 15 years' use. 3. WATERS AND WATER Courses 3:119(1)– SURFACE WATER—FACILITATING FLOW. Facilitating and accelerating the flow of surface water by leveling surface, the quantity flowing not being increased, nor direction changed, is not actionable. 4. MUNICIPAL CORPORATIONS @:394(2) RAISING STREET TO GRADE-SURFACE WATER. Grade of street being established, though street is not constructed, when one builds a house abutting, he cannot complain of subsequent raising of street to grade, even if it injuriously affects his property by flow of surface Water. 5. WATERS AND WATER COURSES 3:119(1)SURFACE WATER—UNUSUAL RAIN. One cannot recover for injury from flow of surface water onto his premises, resulting only from extraordinary or unusual rainfall.

Appeal from Circuit Court, Kenton County.

Action by Elizabeth Broderick against the City of Ludlow. Judgment for plaintiff, and defendant appealS. ReVersed.

Joel H. Ward and Meyers & Howard, all of Covington, and Edward P. Morrow, Of Somerset, for appellant. Jackson & Woodward and Herbert Jackson, all of Cincinnati, Ohio, for appellee.

SAMPSON, J. This action was brought by Mrs. Elizabeth Broderick, widow of James Broderick, against the South Covington & Cincinnati Street Railway Company, the city of Ludlow, and the city of West Covington, to recover damages for injury Which she alleges was produced by surface water to her premises, situated in the city of Ludlow and near the west Covington line, by So raising and reconstructing the street in front of and abutting upon her property as to, and it did, gather and cast an unusual and unnatural quantity of water thereon. The foundation under her house was caused to crack and give Way and to greatly damage her cellar and house. Upon a trial before a jury the plaintiff, Mrs. Broderick, was awarded $1,700 damages against appellant city of Ludlow ; the court having sustained a motion for peremptory instruction as to the city of West Covington.

The appellant is a city of the fourth class, situated in Kenton County; West Covington is also a city of the fourth Class, and adjoins the city of Ludlow, and also the city of Covington; the three cities are in fact one

large community. On the north side of Mrs. Broderick's property runs a street called the Highway, which has its beginning in the city of Covington, and runs through the three cities named. Upon the Highway and adjacent to the property of appellee, the street railway company maintains its tracks and Operates its line of road. According to the evidence the street was improved along by Mrs. Broderick's property in 1898 or 1899, and has not been changed so far as its grade line is concerned since that time, except that the Street railway company has placed its tracks upon the Street, and at One place near the property, but not exactly opposite thereto, raised the grade of its track some four to six inches so as to conform to the grade of the same street made by the city of West CoVington. The lot upon which appellee's house Stands was originally, and is now, much lower than the surrounding territory, and Several feet lower than the adjacent Street as it existed at the time of the erection of the house in 1911 and 1912. In front Of the house, and just across the Street complained of, is a hill or natural elevation from which some of the surface water which falls thereon runs down upon the highway, and thence across the same on to the premises Of Mrs. Broderick. From the evidence, aS We understand it, the raising of the grade of the Street Would not in any way facilitate the course of the water in getting upon the premises of Mrs. Broderick, but would rather hinder it and cause it to flow in another direction. It is also in evidence that the house of Mrs. Broderick was erected several years after the grade of this street had been fixed, and was at the time of its erection as much as a foot and a half or two feet lower than the surface of the street, and that the builder and contractor of the house and those engaged in the work called attention to this fact at the time the foundation was laid, and attempted to persuade the husband of Mrs. Broderick, Who also owned an interest in the property, that the house should be built upon a higher foundation, but to no effect. The Substance of the evidence is that the lot of Mrs. Broderick is now, and has always been, much lower than the surrounding property, and therefore subject to the Servitude of receiving the Ordinary and natural flow of surface water. The highway was constructed in 1898 or 1899 adjacent to and just above the property plaintiff now OWns. At that time certain sewers and drain pipes Were installed in the embankment for the purpose of conducting the water under the Street and onto the property below, now owned by Mrs. Broderick. These pipes had been in use some 12 Or 13 years before Mrs. Broderick first became the OWner of an interest in the property now in question, and more than 15 years had elapsed from the time of

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

the installation of the sewers and drain pipes to the institution of this action, so that the city had, it appears, acquired a prescriptive right to maintain the sewers and drain pipes in the manner complained of, and to cast the Water upon the premises in question in the Way, manner, and quantity to which it was Subject at the time of the commencement of this proceeding. Moreover the plaintiff, Mrs. Broderick, purchased the property with the Street grade fixed practically as it now exists, and the drain and sewer pipes installed as they now are, and she will not now be heard to complain of their existence, especially after so great a lapse of time. Mrs. Broderick testifies that she was acquainted with the lot and its surroundings before it was purchased by her husband, and deeded to the two jointly, and that water

flowed onto the lot in much the same manner

as at the time Of the commencement and trial of this action, and that the drains and sewers Were then in the same position and condition as at the trial, except she thought the water had perhaps increased somewhat. With this knowledge On the part of the plaintiff and her husband, the house was erected on its present Site. [1, 2] The city originally had the right to allow surface water, in its usual volume and natural course, to flow upon the lot in question, and the OWner of the lot, it being the lower and servient estate, had no right to obstruct the free flow thereof onto his property. When the water was first gathered into drains and cast upon this lower lot and the owner thereof had his remedy, had he invoked it, but having slumbered on his rights for more than 15 years before beginning proceedings, his rights of whatever nature were barred and tolled at the time of the commencement of this action. While it appears that the house of Mrs. Broderick has been damaged by Water, it further appears that this damage resulted largely, if not wholly, from natural conditions existing at the time, and before her purchase Of the property and erection of the house, Which Were Open and Obvious and Of Which She and her predecessors Were required to take notice. The Water comes from off a hill just in front of but across the street from the residence of plaintiff. Raising the street would not have deflected the Water from the hill onto her premises, but Would have been a protection from it and the higher the grade of the street and the lower the ditch on the side next to the hill the leSS the Water WOuld have flowed onto the lot, at least in the regular and natural channel or course, and that which went through the SeWer and drain pipes was allowable under prescriptive right. No map or diagram of the premises accompanies the record, and We have experienced great difficulty in obtaining a clear understanding of the testimony.

[3] Finally it is insisted that the smooth Surface Of the brick Street has facilitated the flow of the Water and allowed it to pass freer and faster but in the same course and quantity. The rule recognized in this State does not allow a recovery by a lower or servient estate for damages where the quantity of Water is not increased nor caused to flow in a new Or different course or channel. So long as the Volume of the Water remains the same and is confined to its usual and ordinary course there is not actionable wrong in facilitating its flow by cleaning the channel Or leveling the surface so as to let it pass Without obstruction or run rapidly. A mere acceleration Of the flow Of Water is not an actionable injury. 40 Cyc. 647.

[4] Mrs. Broderick says the water was flowing from the street onto her lot at the time and before She and her husband began to erect the house which has since been damaged by the water, and that this lot was lower than the adjacent street and grounds. The house was built where reasonable forethought would have suggested danger from Water from the upland and the street. Therefore she is now in no position to complain of injury to her house, which was knowingly erected in the direct course of the flow of surface water from the street, unless that flow has been materially augmented by a change in the established grade of the Street. If a Street have an established grade, perSons erecting buildings must take notice thereof, even though the street be not in fact Constructed, and one who builds his house on a grade lower than that established Cannot complain that the city afterwards constructed the street upon the grade before established. So if, as appears to be the fact, the Highway mentioned in evidence has not been materially raised since the erection of the house and is not now above the established grade SO as to cast an unusual and unnatural Volume Of water upon Mrs. Broderick’s property, she is Without remedy, it being damnum absolue injuria. As Said in Stith V. L. & N. R. R. Co., 109 Ky. 177, 58 S. W. 600, 22 Ky. Law Rep. 653:

“A person may improve any portion of his land, although he may cause the surface water thereon, whencesoever it may come, to pass off in a different direction and in larger quan

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