after a majority of the votes cast at an election held for that purpose in any county, have voted for free turnpikes and gravel roads, and the fiscal court of said county, being unable to enter into a contract with the owner or owners of any turnpike or gravel roads, or any part thereof, lying in said county, it shall be the duty of the fiscal court thereof to file in the county court clerk's office of said county a statement to the effect that it has been unable to enter into a contract to purchase said road, with the owner or owners thereof, with a description of the turnpike road desired to be obtained, and thereupon, the county judge shall appoint three impartial housekeepers of the county, who are landowners, one of whom may be recommended by the managers of the road, whose duty it shall be to assess the value the owner or owners thereof may be entitled to receive for the said turnpike or gravel road so taken." When such a proceeding is instituted the county is authorized to abandon it, as appears from section 15 of the act, which reads as follows: "But the fiscal court of said county shall have the right to abandon the condemnation proceedings at any time it may desire, but it must pay the cost of said proceedings." The appellant owned a turnpike running | from Bardstown, in Nelson county, to the city of Louisville, in Jefferson county. About 13 miles of this pike was situated in Nelson county. Some time in January, 1898, proceedings were instituted in the county court by the fiscal court of the county to condemn that part of the turnpike situated in Nelson county. It appears there was a pressing demand upon the county authorities that the turnpike of the appellant should be immediately made free. The fiscal court in regular session made an order embodying a proposition for the immediate use of the turnpike by the public free of toll, and the terms upon which it desired to secure it. The order reads as follows: "It is ordered by the fiscal court of Nelson county that this county and court do hereby agree and bind itself to pay to the Bardstown & Louisville Turnpike Road Co. interest at the rate of six per cent. upon the amounts which may be finally adjudged to them in the condemnatory proceedings now pending against them by this county in the Nelson county court, but said interest to commence from the time they signify their acceptance of this proposition in writing to F. E. Daugherty, judge of Nelson county court, and they make said roads free from the collection of toll, and collect no more toll upon said roads." The board of directors and stockholders of the appellant held a meeting, and passed a resolution of acceptance of the proposition made by the Nelson county fiscal court, which is in language as follows, to wit: "And on motion of James S. Carpenter, at the request of the stockholders present, in person and by proxy, holding 1,651 shares of stock in this company, being a majority of all stock owned by all the par

ties in this company, it is ordered by the board that this company accept, and does hereby accept, the provisions of said order above recited, and the company hereby agrees and contracts with said Nelson county to accept the amount finally adjudged to it, with six per cent. interest per annum thereon from this date, as set forth in said order. The road embraces thirteen miles in Nelson county; gates having been thrown open in Nelson county on said road, and that no tolls have been collected from the public for travel thereon since the 28th day of January, 1898. And, inasmuch as this agreement is had, the fiscal court is hereby requested to take charge of said road at once, and supervise, manage, and control it, and maintain the road as it has been and should be maintained, it being impossible for the company to do so under this agreement. It is hereby declared that the road is in good condition, and it is important that the same should be taken into the care and custody of the county under this agreement. It is ordered that a copy of this order, which is hereby declared the company's acceptance of the provisions of said court's order and contract and agreement thereunder with said fiscal court of Nelson county, be duly certified by the president of this company to F. E. Daugherty, judge of the Nelson county court, under the seal of this company, and be by the president delivered forthwith in person into the hands of the judge of the Nelson county court." A copy of the order was delivered to F. E. Daugherty, judge of the Nelson county court, upon which he made the following indorsement: "This proposition is accepted so far as it corresponds with the order of the fiscal court,--that is, agreeing to pay this Turnpike Road Co. six per cent. interest on any amount finally adjudged it,provided no tolls are collected by said company, but all other matters mentioned or requested of said Nelson county are declined. March 7th, 1898."

To fully understand the proposition, it is necessary to bear in mind that the county had voted in favor of free turnpikes, and that the county court was proceeding to acquire by condemnatory proceedings the appellant's turnpike, and open it as a free turnpike to the traveling public. It was in contemplation of the parties that the county was to pay the amount which the final judgment fixed in the proceeding as a proper amount as compensation to the owners for it, but, not desiring to await the final judgment in the case before the pike should be made free to the public, the proposition was made to pay for making the pike free between the acceptance of the proposition and the final judgment in the proceeding in the county court. We cannot suppose that the fiscal court intended to do the absurd thing of acquiring the use of the turnpike for the traveling public only for the time pending the proceeding in the county court to condemn it. It would be equally as absurd to

suppose that the county court would be con demning it with no purpose of paying the owners the amount fixed in the proceeding as a proper compensation for it. No reasonable man can suppose that the turnpike company would remove its tollgates and throw the pike open to the traveling public for the brief period that the proceeding was to pend in the county court, unless the parties had in contemplation that the county was to take the turnpike at the price adjudged in the county court proceeding. The fiscal court had the right to acquire the turnpike road by contract. It was not necessary to institute the proceeding if it could make a contract for the purchase of the property at a price which it deemed reasonable. In fact, the act only provides for proceedings to condemn when the fiscal court is unable to agree with the owners for the purchase of the road. So, under section 5 of the act, it is perfectly clear that the county court had the right to acquire the turnpike by gift, lease, or purchase, and therefore it follows that the contract which it made with the appellee is binding and enforceable.

The judgment below appealed from was on demurrer to the petition. It is averred in the petition that the offer, which we have stated, was made and accepted as heretofore stated; that the company removed its tollgates, and turned the road over to the county; that the public has been using it, free of toll, since the acceptance. The commissioners appointed by the county court fixed the compensation for the road at something over $18,000, and, as the fiscal court dismissed its proceeding in the county court, it is claimed that the appellant is entitled to recover interest on the amount fixed by the commissioners. The question here involved is, does the petition state a cause of action? and in determining which we will not discuss the defense interposed by the answer, because it cannot be considered in determining the sufficiency of the petition on demurrer.

It is insisted by counsel for appellee that the acceptance of the proposition which the fiscal court made was only a qualified one, and therefore it amounted to no acceptance at all. It is unnecessary to enter into a discussion as to what would be the effect if the acceptance had not been full and complete of the proposition made, because we have reached the conclusion that it is a substantial acceptance of the proposition which was made by the fiscal court to the appellant. The language of the resolution is that the company hereby accepts "the provisions of said order," and it is also added that it would accept "the amount finally adjudged to it, with six per cent. interest per annum." The language here used is nothing more than the proposition made by the fiscal court, except it states it in a different form. As we have said, it was in contemplation of the parties that the fiscal court was to take

the turnpike road at the amount adjudged in the county court proceedings. The proposition was to pay 6 per cent. interest on the amount which might be "finally adjudged to the turnpike company" from the acceptance of the proposition until that judgment was entered. The appellant interpreted the proposition of the fiscal court as we do, and said it would take the amount fixed by the county court, with interest. The acceptance did not import an intention to vary the proposition. The appellant in its acceptance proceeds to say that it was not collecting tolls upon the road, and could not do so under its agreement with the fiscal court. This is in response to the order of the county court which required the appellant to make the road free from the collection of toll, wherein it is said in the acceptance that the fiscal court was requested to take charge of the road at once, and supervise, manage, control, and maintain it as it has been and should be maintained, as purely advisory, and is a correct conclusion as to the duty imposed on the county by the proposition which it made.

It was not in the contemplation of the parties that the turnpike company was to retain the control and management of the turnpike road during the pendency of the proceeding, any more than it would have been expected to be after the final order was made. The implied obligation which the proposition of the fiscal court created was that it should have the same control and management of the road until the final order in the proceeding in the county court as it was to have thereafter. The question then arises, what relief is the appellant entitled to under the agreement which it made with the fiscal court? It was not bound to institute proceedings to condemn its road, neither does the act authorize it to do so. The power to condemn rested with the fiscal court. By dismissing the proceeding it violated its agreement to have the final order made fixing the amount of compensation which the appellant was to accept in payment of its road. We are of the opinion that the obligation of its contract required it to prosecute the proceeding which was then pending to a final determination, because it had contracted to do so. The provision of the statute which authorized it to dismiss a proceeding was never intended to shield a county from liability on a contract which it was authorized to make and did make under section 5 of the act. It could not dismiss it, and thus relieve itself from the obligation which was imposed by its contract.

As the value of the appellant's property was not fixed by the judgment of the court, and the action of the appellee prevented that order from being made, we are of the opinion that the appellant is entitled to recover the reasonable value of its turnpike road of the date of its acceptance of the fiscal court's proposition. To hold other

wise, it seems to us, would be in plain disregard of the rules that should control the action of individuals in their business and fiscal courts in public affairs. When parties have agreed upon a method of fixing the amount of a liability on a contract, and one of them violates the agreement by putting it out of the power of the other to have the amount ascertained in the manner agreed upon, then a court of competent jurisdiction is authorized to ascertain and adjudge the amount; otherwise, there would be a wrong without a remedy.

It appears that after the appellant accepted the proposition it did not assume any control of the pike or collect tolls thereon. Section 4732, Ky. St., provides that if a turnpike company fails, for a period of four months, to keep its road in a condition safe for public travel, and to charge toll thereon for the same length of time, it shall be deemed to have abandoned its road, and it is made the duty of the fiscal court of the county to take charge and control the same. It is earnestly urged that as the appellant failed to control the road after the acceptance of the fiscal court's proposition, and collect toll thereon, there was an abandonment of its road, and therefore it has no claim against the county for compensation. From the averments of this petition, the appellant acted in the utmost good faith in surrendering the road to the fiscal court of Nelson county, and in not collecting toll since that time, relying, of course, upon the promise of the county that it would compensate it for the use and value of the road according to the agreement. If the appellee can defeat a recovery upon the grounds suggested, it would have been as well for the appellant to have surrendered its road to the traveling public on the demand of tollgate raiders, as the effect would have been exactly the same,-no compensation in either case. We cannot agree with counsel for appellee that such is the proper effect to be given to this transaction. The judgment is reversed for proceedings consistent with this opinion.

DAUGHERTY, Judge, v. ARNOLD.1 (Court of Appeals of Kentucky. Feb. 14, 1901.)

JUSTICES OF THE PEACE-APPOINTMENT BY GOVERNOR TO FILL VACANCY-REPEAL OF STATUTE.

The act of February 10, 1894, requiring the governor to issue commissions to various officers, including justices of the peace, and providing that a vacancy in any of said offices "shall be filled by appointment of the governor, subject to the provisions of the constitution applicable thereto," repealed the act of June 30, 1892, providing that a vacancy in the office of justice of the peace shall be filled by appointment of the county court temporarily, until a successor shall have been elected; and

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

60 S.W.-55

therefore the governor, and not the county judge, was authorized to fill a vacancy in the office of justice of the peace in December, 1899. Appeal from circuit court, Nelson county. "To be officially reported."

Action by Ed. H. Arnold against Frank E. Daugherty, judge, for a mandamus. Judg. ment for plaintiff, and defendant appeals. Affirmed.

Geo. S. & John A. Fulton and John S. Kelley, for appellant. John D. Wickliffe, for appellee.

GUFFY, J. It is substantially alleged in the petition in this action that on the 8th of December, 1899, there was a vacancy in the office of justice of the peace for the Third district of Nelson county, caused by the death of W. B. Nicholls, said Nicholls at the time of his death being a justice of the peace in said district; that on said date Gov. W. O. Bradley appointed and commissioned the appellee, Ed. H. Arnold, justice of the peace for said district. The petition further shows that said Arnold was eligible to said office. It is further alleged that on the 16th of December, 1899, appellee took the oath of office required by the constitution, and appeared before the appellant, Daugherty, judge of the Nelson county court, and offered to execute his official bond, with good and solvent surety, but that appellant refused to permit him to execute the bond or to qualify as justice of the peace, and entered an order on the order book of the Nelson county court showing the application of appellee, and the refusal of the appellant to accept the bond or permit the qualification. The plaintiff, Arnold, finally prayed for a mandamus compelling the said county judge to permit him to qualify as justice of the peace for said county. The material defense set up by the appellant is that on the 27th of November, 1899, in order to fill said vacancy, by an order entered upon the record books of his court he duly appointed one John Bell, who at the time possessed the qualifications necessary to fill said office, which appointment was thereafter duly certified to W. O. Bradley, governor of the commonwealth, who by law is charged with the duty of issuing to said Bell a commission to fill said office, he being requested to do so, which order was received by the governor not later than November 29, 1899; that said order of appointment of Bell has never been revoked or set aside; and that said Bell has accepted said office in so far as he can without being commissioned. After the issues were made up and proof taken, the circuit court rendered a judgment in favor of said Arnold, and awarded him a writ of mandamus against said Daugherty, commanding him to permit the plaintiff, Arnold, to qualify as justice of the peace by taking the oath of office and executing a bond as required of him, with good and solvent surety, and commanding him to approve said bond and cause same to

be noted on the order book of the Nelson county court; and from that judgment this appeal is prosecuted.

There is no brief for appellant on file. But, from the answer, we presume that the appellant claimed that no person could be legally appointed to fill the vacancy referred to without first having been appointed by the appellant as county judge, and therefore the appointment and commission relied on by the plaintiff conferred no right upon him. It is provided in section 152 of the constitution that "vacancies in all offices for the state at large, or for districts larger than a county, shall be filled by appointment of the governor; all other appointments shall be made as may be prescribed by law." Section 7, art. 7, p. 146, Acts 1891-93, provides that a vacancy in the office of justice of the peace shall be filled by appointment of the county court temporarily until the successor shall have been elected as provided in section 2 of this article. This act seems to have been approved June 30, 1892. It further appears that by an act approved February 10, 1894 (Acts 1894, p. 11), the legislature amended Acts 1891-93, and required the governor to issue commissions to various officers, including justices of the peace; and in said act it is provided as follows: "Should a vacancy occur in any of said offices by reason of the death, resignation or removal of the officer, or from any other cause, or should a like vacancy occur in any other office where there is no provision of law for filling the same, such vacancy shall be filled by appointment of the governor, subject to the provisions of the constitution applicable thereto." It necessarily follows that the act supra repeals all preceding acts inconsistent therewith. It therefore follows that the judgment appealed from was proper and in accordance with the law in force at the time, and the same is affirmed.

GRIDER v. DAVENPORT et al.1 (Court of Appeals of Kentucky. Feb. 8, 1901.) ADVERSE POSSESSION-RECOGNITION OF DIVIDING LINE FOR FIFTEEN YEARS. Where the owners of adjoining lands in possession have recognized and claimed to a certain line for 15 years, the right of either party to question the location of the line is barred.

Appeal from circuit court, Warren county. "Not to be officially reported."

Action by Mary F. Grider against C. G. Davenport and others to recover damages for trespass. Judgment for defendants, and plaintiff appeals. Affirmed.

H. T. Clark, D. W. Wright, and Edward W. Hines, for appellant. Lewis McQuown, for appellees.

PAYNTER, C. J. The land in controversy is covered in part by each of the two patents; one to Joseph and Allen Cherry for

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

209 acres, the other to Daniel Turney for 200 acres. So the appellant and appellees claim title to the land from common sources. This controversy arises over the location of the division line between their lands, the appellant owning the land on the west and appellees on the east side of the division line. The appellant purchased her land in 1890, and claims it through a remote vendor, John Allen Cherry. McGinnis purchased his land in July, 1882. To follow the courses and distances called for in the deed to appellant, the land in controversy is covered by it; and the court, in its instructions to the jury, recognized that to be true, and told it that, if the land in controversy was included in the boundary described in her deed, it should find for her, unless it found for McGinnis under certain instructions submitting the questions of adverse holding and recognition of division line, etc. John Allen Cherry sold the land claimed by appellant to Joseph Martin in 186-, and there were other conveyances of it before it was purchased by appellant. A number of witnesses introduced by defendant testified that the line between the tracts of land ran from a "fallen Spanish oak," designated on the plat, to a "large fallen poplar," also designated on the plat; that all the owners of the land which appellant claims, from the time John Allen Cherry disposed of it until she purchased it, claimed the line to run at the place indicated above; that they recognized that as being the division line between the tracts. Some witnesses were introduced, who testified that John Allen Cherry had told them it was a straight line running from the "fallen Spanish oak" to a certain point south of there, which would carry it by the "large fallen poplar." So for more than 20 years the testimony conduces to show that the line as claimed by the appellees was recognized by the proprietors on either side of it as being the true line between the boundaries. At the time the appellees purchased the land the party owning the land claimed by appellant pointed out to appellees the division line between the tracts at the place where it is now claimed by the appellees. Although the true location of the line may not have been at the place now claimed by appellees, still, if the parties owning the tracts of land recognized it as such, and the appellees and those through whom they claimed held possession of it, and claimed to the line for 15 years, the appellant's right to question the location of the line is barred. Grigsby v. Combs (Ky.) 21 S. W. 37; Schieble v. Hart (Ky.) 12 S. W. 628; Finn v. Rochford, 6 Ky. Law Rep. 654; Byersdorfer v. Schultz, 5 Ky. Law Rep. 928; Robards v. Rogers (Ky.) 48 S. W. 154. The court, in its instructions to the jury, recognized the doctrine of the cases cited, and the jury returned a verdict for the appellees. We are of the opinion that the evidence supports the finding of the jury. The judgment is affirmed.

ASSOCIATED PRESS v. COMMON

WEALTH.

(Court of Appeals of Kentucky. Feb. 7, 1901.) "Not to be officially reported." Dissenting opinion.

For majority opinion, see 60 S. W. 295.

PAYNTER, C. J. This court recognized that there was sufficient testimony to authorize the court below to submit the question of guilt of appellant to the jury. While it was not entirely free from doubt that the testimony did so authorize, still I am inclined to the opinion that the question was properly submitted to the jury. I do not think the instruction of the court was erroneous or misleading because it used the words "employés, agents, or correspondents." While Marksberry and Kavanaugh were correspondents in the ordinary acceptation of that term, still they were employés and agents of the appellant. There is nothing in the word "correspondent" which precludes the idea that they were not employés or agents. It seems to me that one could not be a correspondent except the relationship of employer and employé existed. There was no dispute about the facts, and the court could, with propriety, have told the jury that, if they were correspondents of appellant they were necessarily employés; hence the instruction could not have been prejudicial. For the foregoing reasons, I dissent from the opinion of the court.

TAYLOR et al. v. ROULSTONE et al. ROULSTONE et al. v. BRADFORD et al.1 (Court of Appeals of Kentucky. Feb. 15, 1901.) APPEAL-WEIGHT GIVEN CHANCELLOR'S JUDGMENT POWERS OF ADMINISTRATOR - EXPENDITURE FOR REPAIRS-FAILURE OF ADMINISTRATOR TO KEEP PROPER ACCOUNTS. 1. Where the evidence is conflicting, and on the whole case the mind is left in doubt as to the truth, the judgment of the chancellor on the facts will not be disturbed.

2. A son at the time of his death was indebted to his father for a farm purchased from him, and the father, who became administrator of the son's estate, collected rents from the farm and expended money for repairs. Held, that while the father, as administrator, had no power to make such expenditures, yet, as he was charged with all the rents collected, he should have been credited out of the rents with these expenditures, which were made in good faith for the purpose of protecting the interest of his grandchildren as well as himself.

3. Where the accounts between father and son have been so badly kept that it is impossible to tell, in a settlement of the accounts of the father as administrator of his son's estate, to what extent he is indebted to the estate, no judgment will be rendered against the administrator; both parties being in fault, and not the administrator alone.

ty.

Appeals from circuit court, Bracken coun

"Not to be officially reported."

Action by May D. Taylor and others against John Jewell Bradford and others to

Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

recover dower and for a conveyance, consolidated with an action by May D. Taylor and others against the administrator of A. J. Bradford and Laban J. Bradford to settle the estate of A. J. Bradford. Judgment directing conveyance of land to May D. Taylor and others, and judgment for money in favor of A. J. Bradford's administrator against B. F. Graziani, receiver of the estate of L. J. Bradford; and May D. Taylor and others and Sallie B. Roulstone and others prosecute separate appeals. Judgment affirmed on appeal of May D. Taylor and others, and reversed on appeal of Sallie B. Roulstone and others.

M. L. Harbeson, for appellants Taylor and others. Harvey Myers, for appellants Roul

stone and others.

HOBSON, J. These two appeals on the same record have been heard together. L. J. Bradford owned considerable real estate. He had four children,-a son, Alex. J. Bradford, and three daughters. In the year 1879, when the son was about 24 years of age, he made with the son the following contract:

"Bradford, Kentucky, March 1, 1879. I have this day rented my farm and all buildings, ferry excepted, to A. J. Bradford, for cash, at five hundred dollars each year, with the privilege of buying the one-half undivided interest for six thousand dollars, possession now given, known as the 'Bradford Landing Place,' containing 2381⁄2 acres, more or less. L. J. Bradford."

The son, Alex. J. Bradford, took charge of the farm under this agreement, and about the year 1882 accepted the option of buying the undivided half of the farm for $6,000. On September 20, 1883, the son married, and settled with his family on the farm. Besides extensive farming operations, he carried on business as a tobacco dealer, and ran a general store. On May 28, 1887, the father, L. J. Bradford, executed and delivered to him the following writing:

"Know all men by these presents, that L J. Bradford, of Covington, Kenton county. and state of Kentucky, have this day sold to A. J. Bradford, of Bracken county, and state aforesaid, the remaining undivided tract of land known as the Bradford two hundred and thirty-eight and one-half acres of land, with all the houses, barns, ferry, and all pertaining to same, for the sum of six thousand dollars. This sale to date back to first bond. No rent to be paid by said A. J. Bradford, but interest to bear from date of first bond at six per cent. (%) on purchase. All charges for improvements, taxes, insurance, and expenses in connection of said land is settled in this purchase, and not chargeable to said A. J. Bradford. Rent to cease being charged after date of bond. (No. 238% acres, more or less.) I am to pay said A. J. Bradford all rents collected from ferry