Botts et als., v. Botts et als. any status as his wife, or any property interest in his estate as his widow. But it was held in the case of Whitesides v. Allen, 11 Bush, 23, that the children of customary marriages of negroes born prior to the passage of the act of February 14, 1866, were legitimate, even though their parents had not since made the declaration of their intention to continue the relation as provided for by that act; and this doctrine was adherred to in Brown v. McGee, 12 Bush, 428. It is clear that neither Philip nor Sandy Botts has any interest in the estate sued for, as the evidence very clearly shows that both of these parties were born after the passage of the act supra, and after the marriage of Philip Botts to appellee. See Allen v. Allen, 8 Bush, 490. But the testimony is not at all clear as to the date of the birth of appellees, Lucy, Harry, and Leonora Crump. Whether they were born before or after the passage of the act of 1866 is not disclosed, and, as their right to recover in this proceeding depends upon this fact, and the burden of the proof is upon them to show it, which they have failed to do, the judgment must be reversed, and cause remanded for proceedings consistent with this opinion. On May 22, 1900, Judge Burnam delivered the following extended opinion in this case: We have been asked to extend and make more definite the opinion heretofore filed in this case, defining the rights of the appellant Phoebe Botts and the appellees, Lucy, Harry and Leonora Crump. As stated in the original opinion, the evidence of the legal authority authorizing the marriage of Philip and Phoebe Botts was not absolutely conclusive, as there was no documentary evidence offered on this point, and the parol testimony as to the authority under which their nuptials were celebrated is somewhat Botts et als., v. Botts et als. indefinite, but these facts are clearly established: After the abolition of slavery they were publicly married in the Colored Christian Church at Mt. Sterling by the pastor in charge thereof. That thereafter they lived together as husband and wife openly and notoriously for nearly thirty years, and were so recognized by the community in which they lived, and by their friends and associates. "Because of the high favor in which marriage is held by law, we have transmitted to us the special maxim, 'Semper praesumitur pro matrimonio.' When a man and woman live together as husband and wife, the law will hold them to be such, even against strong probabilities that they are not, especially when a ceremony of marriage is shown to have been celebrated between them; the presumption being that it is valid, unless some distinct and special fact clearly appear in the particular case to the contrary." 1 Bish, Mar., Div. & Sep., sec. 77. Records of marriages are frequently destroyed, and it is often impossible to prove them by persons who were present at their solemnization; and largely, therefore, in the practice of our tribunals, marriages are proven by presumptions, which, originating in natural reason and justice, have been found to accord with the reason and justice of the law, and indispensable in judicial affairs. It therefore follows that the reputation that the parties are married, and that they lived together as husband and wife, and are treated and received as husband and wife among their friends and neighbors, are facts sufficient to raise a strong presumption of the validity of the marriage between them, and, in the absence of clear testimony conducing to show that they were never legally married, must be deemed conclusive. And, under the facts in this case, we think this presumption must be indulged in favor of the appellant Phoebe Botts, and she is entitled City of Louisville v. Coleburne. to receive that portion of the estate of her deceased husband secured to widows by law. The testimony in the case does not show the date of the birth of the mother of appellees Lucy, Harry and Leonora Crump. If she was born prior to the passage of the act of February 14, 1866, and was the issue of the slave marriage between Philip and Sarah Botts, they are legitimate, even though their grandparents did not make the declaration of their intention to continue the relation as provided by that act (see Whitesides v. Allen, 11 Bush, 23); and, in view of the fact that they are infants, the court will depart from the ordinary practice, and allow testimony to be taken on this point, with a view of establishing their rights to the property left by Philip Botts-subject, however, to the interest of his widow, Phoebe Botts, therein. 108 420 110 738 108 420 d114 669 d114 670 CASE 56-ACTION TO RECOVER DAMAGES FOR INJURY TO PROPERTY— City of Louisville v. Coleburne. APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION. JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS. AFFIRMED. HUSBAND AND WIFE-ESTATE BY ENTIRETIES-DAMAGES-SINGLE RE- Held: 1. A conveyance to husband and wife for their natural lives, with remainder in fee to their children, if any be left at their death, provides for a right by survivorship, so as to make the husband and wife tenants by entireties, within the exception to Kentucky Statutes, sec. 2143, which provides that, "if real estate be conveyed or devised to husband and wife, unless a right by survivorship is expressly provided for, there shall be no mutual right to the entirety by survivorship between them, but they shall take as tenants in common"; and therefore the wife, having survived the husband, may maintain an action for City of Louisville v. Coleburne. the entire injury to the use of the property from the improper grading of a street, whether it occurred during the lifetime of the husband or after his death-the right to enjoy the whole estate being an entirety, belonging to each of them. 2. An action by a life tenant to recover damages for injury to the use or rental value of the property from the improper grading of a street is not barred by limitation, though more than five years have elapsed since the street was completed, as the injury is not of that character where a single recovery may be had for the whole injury, the recovery sought being merely for the injury to the use of the property, and not for the injury to the fee; and the injury, besides, is not necessarily of a permanent character, as it may be remedied by a regrade of the street, or by the extension of the sewerage system of the city along the street. 3. As the recovery sought was only for the injury to the use and occupation of the property, the court properly instructed the jury to find for plaintiff such damages as fairly represented the amount in which the use and occupation of the house had been damaged in value by the gutter complained of during the time mentioned in the instruction. H. L. STONE, CITY ATTORNEY, FOR APPELLANT. 1. The property alleged to have been damaged was not owned solely by the appellee. It was conveyed to her by her deceased husband, Victor P. Wilson jointly, and her said husband's representatives were not parties to this suit, and she can not recover for them. Am. & Eng. Ency. of Law, vol. 17, page 599; Gent v. Lynch, 23 Md., 58; 87 Am. Dec., 558; Coryton v. Lethebye, 2 Sand, 115; Civil Code, secs. 22 and 24; Pelly v. Bowyer, 7 Bush, 513; Woolfolk v. Ashby, 2 Met., 288; 1 Chitty on Pleadings, 56; 2 Statute of Limitations. The court refused to instruct the jury to limit the recovery of the appellee, if any, to a period six months preceding the institution of the action. This was error. City Charter, Session Acts 1881, vol. 1, page 1017; Cassity v. Storms, 1 Bush, 433; Lawrence v. City of Louisville, 96 Ky., 595; Powers v. Council Bluffs, 45 Iowa, 652; Town of Troy v. Cheshire R. R. Co., 3 Foster (N. H.), 83; Stodghill v. C. B. & Q. R. R. Co., 53 Iowa, 341; Haisch v. K. & D. M. R. R. Co., 71 Iowa, 605; Williams v. Mills Co., 71 Iowa, 367; Lehigh Valley R. R. v. McFarlan, 43 N. J., 605; Houston & Texas Central R. R. Co. v. Chaffin, 14 Am. & Eng. R. R. Cases, 437; s. c. 60 Texas, 554; Houston Water Works v. Kennedy, 70 Texas, 233; Lyles v. Texas & N. O. R. R. Co., 39 Am. & Eng. R. R. Cases, 59; Railroad Co. v. Morris, 35 Ark., City of Louisville v. Coleburne. 626; Railroad v. Chapman, 39 Ark, 463; Railroad Co. v. Moschel, Am. & Eng. R. R. Cases, 674; L. & N. R. R. Co. v. Hodge, 6 Bush, 141. 3. Appellee had no cause of action against appellant. Gould on Law of Waters, sec. 267, page 524, sec. 269, page 527, sec. 270, page 528; Dillon on Municipal Corporations (4th ed.), secs. 103839-40; Angell on Water Courses, sec. 108; Cooley on Torts, 574; Addison on Torts, 175; Hillary on Torts, 584. 4. The court erred in prescribing the measure of damages in instruction No. 5. City of Maysville v. Stanton, 12 Ky. Law Rep., 586. LANE & BURNETT AND PHELPS & THUM FOR APPELLEE. (No briefs in record.) OPINION OF THE COURT BY JUDGE BURNAM-AFFIRMING. Plaintiff sought in this action to recover damages for injury to the rental value and comfortable use from 1st day of July, 1893, of her residence, situated on the southeast corner of Twenty-fourth and Madison streets, in Louisville, Ky., which she alleges was occasioned by the negligence and want of skill and care on the part of the officers, agents, and servants of the defendant, the city of Louisville, in grading and paving the carriage way of Twenty-fourth street from Chestnut to Madison street for a distance of 161 feet along and next to her property, in consequence of which the surface water accumulated and stood in and along the gutter next to the curbing, emitting foul and loathsome odors to such an extent as to infect and poison the atmosphere around her lot. The defendant, by its answer, denied the material allegations of plaintiff's petition, and for further defense pleaded contributory negligence of appellee, and, in separate paragraphs, pleaded the five-years and six-months' statutes of limitation against appellee's cause of action; alleging that the grading and paving on Twenty-fourth street, complained of, were completed on the 16th day of July, 1892-more than |