sum of $340, or $100 less than the amount | which did not except said portion of the farm, of his lien debt. All the lots sold for $1,142.- although there had been fraud in its execution, or provisions omitted from it by mistake. 50, or $350 less than the decedent's debts. 2. LANDLORD AND TENANT 31-ESTOPPELAll the sales were confirmed. Thomas J. INCONSISTENT CONDUCT. Little assigned his bid to John Roberts, and on November 13, 1894, a deed was made by the commissioner on behalf of Mary Roberts and the other parties, conveying tract No. 7 to John Roberts. Where lessors acquiesced in lessee's use of portion of farm claimed to have been reserved full settlement of rent, they are estopped to deto lessors, and thereafter accepted payment in ny validity of written contract not excepting, said portion of the farm. ty. Appeal from Circuit Court, Bourbon Coun In the month of August, 1915, Mary Roberts brought this suit against John Roberts to set aside the commissioner's deed Action by Laura Estill Francis and others conveying to him tract No. 7, and to recover against J. E. Tipton and others. From judga half interest in that tract. Besides other ment rendered, plaintiffs appeal. Affirmed. defenses, John Roberts pleaded that plain- Fears & Fears, of New Castle, for appeltiff was a party to the foregoing proceed-lants. ings, and that her rights to the property in for appellees. question were concluded thereby. Judgment was rendered in favor of the defendant, and plaintiff appeals. Emmet M. Dickson, of Paris, Ky., land is to be cultivated in corn and tobacco," with the following exceptions: "The forty-acre field which is now in blue grass is to remain in grass, about thirty acres of land to be sowed in clover, the first parties are to furnish the seed to sow same, the second parties are to sow said field. There is excepted out of this farm six acres of tobacco land by said Clay Brothers for the year 1911, and now rented by Clay Brothers, the same rented the dwelling house, yard, garden, orchard and negro cabin.' CLARKE, J. On November 30, 1911, appellants rented to appellees, by written conThe entire tract conveyed by Little to tract, their farm, with certain specified explaintiff and her husband was subject to ceptions, in Bourbon county, known as the Little's vendor's lien. Plaintiff was served John Cunningham farm, consisting of about with process on the petition in the settle- 185 acres, for the period of two years beginment suit. The petition set up Little's lien ning March 1, 1912, and ending March 1, and the necessity for the sale of the dece- 1914, for which appellees were to pay appeldent's lands to pay his debts. The necessity lants as rent $525 on December 1, 1911, $525 was shown by the commissioner's report, on January 1, 1912, and $1,050 on January and Little's lien claim was allowed. Little 1, 1913.. The contract provides that "this did not seek a personal judgment either against the decedent's estate or against plaintiff, but merely asked an enforcement of his lien. Under these circumstances it was not necessary to issue process on the pleading filed by Little and serve it on plaintiff or the other parties, since the court had the power to order a sale of the land, even though no pleading was filed by Little. Civ. Code, § 692; Union Trust & Saving Co. v. Marchall's Adm'r, 130 Ky. 206, 113 S. W. 73. Plaintiff had no interest in the land in controversy until the lien debt was paid. The land was ordered sold, and did not bring enough to pay the debt. No exceptions were filed by plaintiff either to the judgment or report of sale, and the sale was confirmed. Thereupon in pursuance to pursuance to an order of court, the commissioner, on behalf of plaintiff and the other parties, executed a deed to the purchaser's assignee. Under these circumstances plaintiff was before the court for the purposes of the sale in question, and the judgment and other proceedings are a bar to her right of recovery in this action. Judgment affirmed. (180 Ky. 625) FRANCIS et al. v. TIPTON et al. (Court of Appeals of Kentucky. May 21, 1918.) 1. LANDLORD AND TENANT 32-FRAUD OR MISTAKE-RATIFICATION. Where lessors acquiesced in lessee's use of portion of farm claimed to have been reserved to lessors, and thereafter accepted payment made in full settlement of rent of the farm for a year, they ratified the written contract, It is agreed that appellees paid each installment of rent as it became due, or within a few days thereafter, except $200 on the second year's rental, which was paid in August before it was due; and that appellants furnished the seed, and appellees sowed about 30 acres of land in oats, clover, and timothy. On October 31, 1913, appellants filed this action seeking to recover of appellees a total of $2,164 as damages to certain portions of the John Cunningham farm, alleged not to have been rented, but reserved by appellants, and entered by appellees wrongfully, forcibly, and without right. Appellants did not in their petition set up, or refer to, their contract as a written contract, and were required, upon motion of appellees, to file the written contract, and to make their petition more definite and certain. Whereupon they filed the written contract with the following amended petition: "Come the plaintiffs, and with leave of court, amend their original petition and for amendment say that on November 30, 1911, the defendants rented certain portions of what is known as the 'John Cunningham Farm.' Plaintiffs say that these defendants induced them to sign the paper, "Plaintiffs say that defendants did have such contract written the next morning, but they have failed and refused to execute and deliver a copy of same to these plaintiffs, and plaintiffs say that all of the land referred to in their original petition was, by agreement between the parties, excepted from the operation of the contract as made between the parties." After this amended petition had been filed, defendants filed a demurrer to the petition as amended, which was overruled. Defendants then moved to transfer the case to the equity docket, and this motion was sustained and the case transferred, over the objection and exceptions of plaintiffs. Defendants now complain of the court's action in overruling their demurrer, and the plaintiffs insist that the court erred in transferring the case to the equity docket. which is filed herewith marked 'Memorandum | is not, plaintiffs still would not be entitled to Contract,' upon the fraudulent representation recover because of their ratification of the to them that if they would sign the paper filed contract both before and after the controherewith, they would the next day have written in type and execute a contract, which was versy arose between the parties as to whethto contain all of the agreements between the er or not the defendants had the right, unparties with reference to the renting of said der their contract, to enter and use the fields farm. Plaintiffs say that said paper filed herewith does not contain all the agreements, and in question. This controversy arose in Authat they were induced, after midnight upon the gust or September, 1912, up until which time date set out, to sign said paper, upon the fraud- there seems to have been no differences beulent representations of these defendants, as tween the parties over the meaning of the above alleged. contract, or any objections from plaintiff to defendants' use and occupancy of these fields, but from that time on defendants persistently and at all times claimed the right, under the contract, to the use of these fields, while the plaintiffs denied their right to such use, and gave them frequent notices not to use them. With full knowledge that the defendants were using, and claiming the right to use, these portions of the farm over the protest of plaintiffs, the plaintiffs on January 25, 1913, accepted from defendants a check for $850, the balance due under the contract for 1913, which contained the written statement, "For settlement in full for rent for their farm from March 1, 1913, to March 1, 1914." The letter written by plaintiffs to defendants upon receipt of this check While it is doubtful if the petition as in which they said they would not accept it amended sufficiently charges fraud or mis-proves unmistakably that they fully undertake, and neither a reformation nor a cancellation of the contract is prayed, such was its evident purpose; and unless this plea is sustained, plaintiffs' petition as amended, with the written contract made a part thereof, did not state a cause of action, because the contract, in unambiguous terms, gave to defendants the right to the possession and use of the several fields which the petition alleges defendants had entered and occupied wrongfully. It is therefore clear that the case was treated and tried in the court below as presenting the issue of whether or not, through fraud or mistake, there had been omitted from the written contract provisions exempting from the lease the fields which plaintiffs claim were entered and occupied by the defendants wrongfully. This was the real issue involved, for, unless such provisions had been omitted from the contract by fraud or mistake, plaintiffs had no cause of action, as the contract by its terms gave the defendants the right to use all of these several fields. We shall, therefore, treat the petition as amended, as was done below, as sufficiently pleading fraud or mistake, which authorized a transfer of the case to the equity docket. Defendants answer, in addition to a traverse of the petition as amended, pleaded a ratification by plaintiffs and an estoppel. [1, 2] We need not discuss in detail the evidence upon the question of fraud or mistake, because of our conclusion that even if the evi stood that this check was given in full payment of and satisfaction for the rent of the farm for 1913, under the construction of the contract claimed by the defendants. Having acquiesced in defendants' use of these fields in 1912, and having thereafter accepted the payment thus made in full settlement of the rent for 1913, they thereby ratified the contract as written, even though there had been fraud in its execution or provisions omitted from it by mistake; and they are estopped from denying the validity of the contract. Elliott on Contracts, vol. 3, §§ 2430, 2431; Beach on Contracts, vol. 1, §. 812; Ripy v. Cronan, 131 Ky. 631, 115 S. W. 791, 21 L. R. A. (N. S.) 305. Wherefore the judgment is affirmed. (180 Ky. 636) LEXINGTON & E. RY. CO. v. HARGIS. (Court of Appeals of Kentucky. May 21, 1918.) 1. EASEMENTS 48(5)-WAYS-LOCATION. Where a right of way is not definitely described, the practical use of a particular way, acquiesced in by the parties, fixes the location, which cannot be changed by either party without the other's consent. 2. EASEMENTS 64 OBSTRUCTING WAYDEFENSE. That there is another road which plaintiff might use is no defense to an action for obstructing a way to which he is entitled. 3. EASEMENTS 13 COVENANT TO CONSTRUCT PRIVATE WAY. Where a public road had been constructed dence was of that certain and convincing char- when a deed was executed, and the apparent acter necessary to warrant the reformation or purpose of the deed was to provide for a priacter necessary to warrant the reformation or vate way, grantee's covenant to construct a cancellation of the written contract, which it road was not complied with by suffering the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes public road to remain, unless it was adopted, used, and acquiesced in by the parties as that provided for by the covenant. 4. EASEMENTS 71-OBSTRUCTION OF WAY QUESTION FOR JURY. In action for obstruction of private ways, whether other ways than those provided for by covenant in right of way deed had been established and acquiesced in in lieu of ways covenanted for, held, under the evidence, for the jury. 5. EASEMENTS 71-OBSTRUCTION OF PRI VATE WAY-TEMPORARY INJURY. Where a private passageway was obstructed only by stones, which could be easily removed at small expense, the court erred in submitting question whether injury was temporary or permanent; the injury being temporary. Appeal from Circuit Court, Breathitt County. Action by J. E. Hargis against the Lexington & Eastern Railway Company. From judgment rendered, defendant appeals. Reversed and remanded for new trial. Benjamin D. Warfield and Jas. J. Donohue, both of Louisville, O. H. Pollard, of Jackson, and S. M. Wilson, of Lexington, for appellant. Chester Gourley and South Strong, both of Jackson, Jno. C. Eversole, of Booneville, and Hazelrigg & Hazelrigg, of Frankfort, for appellee. CLAY, C. On June 8, 1889, James W. Lindon, who was the owner of a large tract of land in Breathitt county, sold and conveyed to the Kentucky Union Railway Company a right of way through said land; the deed containing the following covenants: "Said party of the second part agrees and binds itself to construct a good road, to be used as a private passway across said railroad at grade, or underneath said railroad, at its option, which crossroad shall be 12 feet wide with good grade, at 'Hie's branch'; said crossroad to be so constructed and graded as to enable said parties of the first part or other parties to haul coal, timber, etc., over same on wagons out of the branch above said railroad to Main Cane creek; also to construct similar roads and crossings, in like manner as above described, at the Jimmie branch; also at the Sugar Camp branch, also at the 'Old House' or 'Meadow Hollow'; and also Granny's branch. All of these roads are to be constructed and used for the purpose of hauling on same with farm wagons drawn by teams of horses or cattle. Said party of the second part further agrees to construct a trestle at the branch where the party of the first part now lives, and also at Turkey' branch, so as to give a good roadway under said railroad and across the said second party's right of way. The said roadway at these two hollows to be similar in construction and use to the ones above described, except that these two are to cross underneath said railroad." Thereafter the Lexington & Eastern Railway Company purchased all the property, rights, privileges, and franchises of the Kentucky Union Railway Company. On February 16, 1899, J. W. Lindon conveyed the land in question to Joanna E. Hargis, wife of A. H. Hargis, reserving however, a life estate in himself and also in his wife, America Lin don. In the year 1900, J. W. Lindon and his wife, America Lindon, died, and Mrs. Hargis then became vested with the entire title to the land. In the year 1915, Mrs. Hargis, claiming that the roadways or passways structed at Lindon branch, Sugar Camp branch, and Turkey branch pursuant to the covenants in the deed of June 8, 1889, and used by her and her predecessors in title with the acquiescence of the two railway companies for more than 20 years, were obstructed and rendered impassable by the Lexington & Eastern Railway Company, brought this suit to recover damages. From a verdict and judgment in her favor for $2,000, the Lexington & Eastern Railway Company appeals. According to several witnesses for plaintiff, J. W. Lindon's home was located at Lindon branch. On the opposite side of the railroad was his apple orchard. When the railroad company first constructed its trestle at this point, it extended from one hill to the other, and there was left a private passway leading from the inclosure around Judge Lindon's home under the trestle and through a gate into the orchard. This passway was used by the Lindons and appellee, with the acquiescence of the railroad company, until the year 1912, when the railroad company built a fill which entirely closed the passway. At the time, however, that the original deed from Judge Lindon to the Kentucky Union Railway Company was made, there was a public road crossing the proposed right of way at Lindon branch, and this public road is now unobstructed. It further appears from the testimony for plaintiff that the Kentucky Union Railway Company, in the year 1889, constructed from one foothill to the other a trestle at Sugar Camp branch, and left underneath the trestle a passway which ran through a gate and up a hollow. This passway was about 10 or 12 feet wide, and went out through the bottom and around to the coal bank and up the creek. In the year 1912, the railway company made a fill at this point which closed that passway. However, a few feet away is another passway which was left open when the fill was constructed, but according to plaintiff's evidence this passway is not fit for use by wagons and teams during the winter season. Plaintiff's witnesses also testified that the railway company constructed a steel bridge at Turkey branch, but in doing so filled up the passway thereunder with large stones, so that it could not be traveled by wagons drawn by horses or cattle. According to the defendant's witnesses, the passway claimed claimed by plaintiff at Lindon branch was simply a footpath, or narrow walkway, which was not intended for wagons, and was seldom, if ever, used for that purpose. It was further shown that the public road which had been located at that point for over 50 years was in fairly good condi- the diminution, if any, in the market value of tion, and had not been obstructed in any said land caused by the filling up or obstructing, way by the fill. With respect to the passing, if any they shall make in favor of plainif any, of such passways, if any, but their findway at Sugar Camp branch, defendant's wit- tiff, will not exceed the sum of $5,000, the nesses testified that there was now a pass- amount claimed in the petition as amended. way in the bed of the branch of the width will say in their verdict whether they award "(3) If the jury find for the plaintiff, they of 12 feet which had not been obstructed, damages for permanent or temporary injury. and that this was the only passway that had If they find for the defendant, they will say so ever existed at that point. The same wit- and no more." nesses also testified that there was built at Turkey branch in the year 1889 a steel bridge which rested on stone and concrete abutments. In the year 1912, an outer jacket of concrete was laid on the stone abutments. In the year 1914, the upper layer of stone was removed and concrete blocks substituted. The stones, some of which weighed as much as half a ton, were thrown underneath the bridge and on one side, thus leaving a space of practically 12 feet in width for the passage of farm wagons. A few stones however, were left in the driveway. There was also proof to the effect that an expenditure of $25 would put the passway at Turkey branch in as good condition as it was before the work on the bridge in 1914 was done. The court gave the following instructions: "(1) The court instructs the jury that, if they shall believe from the evidence that the Kentucky Union Railway Company, the predecessor of the defendant, Lexington & Eastern Railway Company, under the deed mentioned in the evidence from J. W. Lindon and America Lindon, his wife, to said Kentucky Union Railway Company, dated June 8, 1889, constructed, or there then existed and it left under the trestles it constructed at the branch where said Lindon and wife then lived and at Sugar Camp branch and under the bridge where it constructed at Turkey branch, private passways of the width of 12 feet sufficient for the use thereof by wagons drawn by horses or cattle, and that the plaintiff and her grantors used and claimed such passways, if any there were under either of said trestles or said bridge, as passways provided for in said deed from the time of the original construction of said railroad at said points until the reconstruction thereof in or about the year 1912, and that the defendant and its predecessor company acquiesced in the location and use thereof, if any there was, as the passway provided for in said deed, and shall further believe from the evidence that in or about the year 1912 the defendants filled up or obstructed such passways or any of them, if any such passways there were, so as to prevent the use thereof by wagons drawn by horses or cattle, then they will find for the plaintiff, J. E. Hargis, and fix her damages as set out in instruction No. 2, but unless they so believe they will find for the defendant. [1-3] Where a right of way over the property of another is granted, but the location is not definitely described, the practical use of a particular way, acquiesced in by the parties, fixes the location, and thereafter the location cannot be changed by either party without the other's consent. Bannon v. Angier, 2 Allen (Mass.) 128; New York Carbonic Acid Gas Co. v. Geyser Natural Carbonic Acid Gas Co., 55 App. Div. 128, 67 N. Y.. Supp. 439; Wynkoop v. Burger, 12 Johns (N. Y.) 222; Gaston v. Gainesville & D. Electric R. Co., 120 Ga. 516, 48 S. E. 188; Roberts v. Stephens, 40 Ill. App. 138; Garraty v. Duffy, 7 R. I. 476; Warner v. Columbus & L. E. R. Co., 39 Ohio St. 70; Jennison v. Walker, 11 Gray (Mass.) 423; Moorehead v. Snyder, 31 Pa. 514; Winslow v. Vallejo, 148 Cal. 723, 84 Pac. 191, 5 L. R. A. (N. S.) 851, 113 Am. St. Rep. 349, 7 Ann. Cas. 851; 9 R. C. L. § 43, p. 786; Calvert v. Weddle, 44 S. W. 648, 19 Ky. Law Rep. 1883; City of Owensboro v. Brocking, 87 S. W. 1086, 27 Ky. Law Rep. 1086. And the fact that there is another road which plaintiff might use is no defense to an action for obstructing a way to which he is entitled. 14 Cyc. 1215; Manbeck v. Jones, 190 Pa. 171, 42 Atl. 536. Since the public road at Lindon branch had already been constructed when the deed of June 8, 1889, was executed, and since the apparent purpose of the deed was to provide for roads to be used as private passways, it is clear, we think, that the covenant to construct a road at Lindon branch provided for a road other than the public road, and the mere fact that the public road has been suffered to remain at that point cannot be regarded as a compliance with the covenant to construct a road there in the absence of evidence that such road was adopted, used, and acquiesced in by the parties as the road provided for in the covenant. [4] Under the evidence, we think it was a question for the jury whether a passway other than the passway at Lindon branch was established and acquiesced in by the parties. It was also a question for the jury whether a passway at Sugar Camp branch other than the one left open by the defendant was established and acquiesced in by the parties. If a practical location of the passways at Lindon branch and Sugar Camp branch was made by the parties at the places claimed by plaintiff it is clear that they have been obstructed by permanent fills, and that (2) The court instructs the jury that if they shall find for the plaintiff and shall believe from the evidence that the obstruction, if any there is, of the passways mentioned in the first instruction, if any such passways there were, is temporary and not permanent, they will find for the plaintiff such a sum in damages as will fairly and reasonably compensate her for the diminution in the value of the use, if any, of her said tract of land up to the time of this trial; but, on the other hand, if they shall believe from the evidence that such obstructions, if any there are, are permanent and not temporary, then they will find for the plaintiff such a sum in damages, if any, as will fairly the consequent injury to the land is permaand reasonably compensate the plaintiff for nent. There is no dispute as to the location of the passway at Turkey branch. Plaintiff's of the damage to his property abutting on proof shows that it is obstructed by several Ayers' alley in that city, and which was large stones. Plaintiff introduced no proof, however, that the damage could not be easily remedied at' a small expense. [5] On the other hand, the testimony for defendant was to the effect that the stones could be removed at a cost of about $25. In view of the fact that this passway was not obstructed by any permanent structure, but only by stones, which the uncontradicted evidence shows could easily be removed at a small expense, the trial court should have held as a matter of law that the injury was only temporary, and erred in submitting to the jury the question whether the injury was temporary or permanent. On another trial the court will not leave it to the jury to say whether the injury at each particular place was temporary or permanent, but as to the passways at Lindon branch and Sugar Camp branch will give the measure of damages applicable to a permanent injury, and as to the Turkey branch the measure of damages applicable to a temporary injury. In view of the conclusion of the court, we deem it unnecessary to determine whether the damages allowed were excessive. Judgment reversed, and cause remanded for a new trial consistent with this opinion. caused by the city improperly, negligently, and carelessly improving the alley and failing to provide sufficient catch-basins and drainage to carry off the accumulated water, and failed to properly provide against an increased volume of water flowing into the alley, by reason of which his abutting premises were caused to be overflowed and damaged. His right to recover was resisted by appropriate pleadings, and upon trial the jury returned a verdict in appellee's favor for the sum of $1,000, upon which judgment was rendered, and to reverse it the city prosecutes this appeal. [1] A number of minor errors are relied upon in the motion for a new trial, but they all appear to be abandoned upon this appeal except the one insisted upon in brief for the city that the verdict is flagrantly against the evidence. Much of the alleged incompetent testimony was not objected to, and the instructions given to the jury were prepared by the attorney for the city, with the exception of two of them, and no exceptions were taken to the giving of those, so that the only question in the case as argued here is whether the verdict is flagrantly against the evidence, and this contention is narrowed to the point that the evidence is insufficient to show that the rains which produced the overflows complained of were not usual and ordinary ones, but, on the contrary, were unusual and extraordinary. It is not claimed that the plaintiff's premises were not overflowed because of the character of the improvement done to Ayers' alley; but, if it were so claimed, the evidence is overwhelming that the property has been made to overflow each year some two or three times since the improvement was made in 1912, and that none such occurred prior to that time, or if any, it was very slight and insignificant. It is shown that the surface of the alley before the improvement was from four to six inches below the door entering plaintiff's house, and below its ground floor, and that since the construction the surface of the alley is some six inches above the door and floor; that on account of the insufficiency of the catch-basin at the mouth of the alley where it enters into Main street a large part of the water coming down that street from both directions is made to flow through the alley, and that at the lower end of it, it being a cul-de-sac, there is but one catch-basin, and it is insufficient to carry away the water flowing into the alley. The testimony is abundantly sufficient to show the damages to be as much or more than the amount of the verdict. THOMAS, J. The appellee, Henderson, [2, 3] Upon the point chiefly urged upon by this proceeding sought a judgment against this appeal, viz. that the overflows complainthe appellant, city of Lexington, for the sum ed of were produced not by ordinary and of $5,000, which he claims was the extent usual rains, but by extraordinary and un |