approved the doctrine that, where the whole road could not be operated except at a loss, its use might be abandoned in the absence of a contract obligation.

Having reached the conclusion that a street railway company may in the absence of a contract obligation abandon its whole line of road when it is plainly made to appear that it cannot be operated under efficient management except at a loss, the only remaining question is: Do the facts in the record before us show such a condition as would warrant the application of this rule?

[3] The weight of the evidence, as we think shows that this road cannot be operated except at a loss; but there are a good many facts and circumstances pointing to the conclusion that its unprofitable record has been caused by quarrels and dissensions in the management and generally inefficient control of its affairs, and so we are not entirely satisfied that it may not be so conducted as to be a remunerative property.

Accordingly, we think that a further test of the question whether this road can be operated at a reasonable profit should be made before the company should be permitted to abandon it. And in order that this disputed question of fact may be definitely settled and the rights of the public, the owners, and the bondholders protected, we think that the property should be offered for sale as a going concern at an upset price of $21,000 with an obligation upon the part of the purchaser to continue its operation, and, if no purchaser can be found at this price and under these conditions, then the court should put it in the hands of a receiver to be operated for a year without incurring any expense in excess of the income of the property, and, if at the expiration of a year it is found that the road cannot be operated so as to yield a reasonable profit to the owners, an order should be made permitting the owners or trustee for the bondholders, as the case may be, to sell the road in any manner they please and for any price that suits them, with the right on the part of the purchaser to take up the tracks and other equipment and abandon the road, upon leaving the streets and highways occupied by the road and its equipment in as good condition as the remainder of the adjacent streets and roads. We have fixed the upset price at $21,000: First, because that appears to be the price at which the owners and bondholders were willing to sell it; and, second, because the fixing of this price will prevent the property from being sold as a going concern at a nominal sum, thereby causing the owners and bondholders to lose the difference between the amount at which they were willing to sell it and the sum at which the road might be sold.

directions to proceed in conformity with this opinion; each party to pay one-half of the costs in this court and in the lower court.

BREATHITT COUNTY v. HAGINS.

(Court of Appeals of Kentucky. Feb. 18, 1919.) 1. COUNTIES 1-NATURE OF.

A county is only a quasi corporation, and is distinguishable, so far as liabilities are concerned, from a private or municipal corporation as a city or town; it being only a political subdivision of the state.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, County.] 2. COUNTIES 208-ACTIONS AGAINST.

Being portion of state for governmental purposes, county cannot be sued, unless statute permits it, or right can be implied from express power given, or suit is on contract which county could make.

3. COUNTIES 210-ACTIONS AGAINST-RE

COVERY.

Where county without authority leased to individuals right to collect tolls from users of bridge, held, that one using the bridge cannot recover from the county the amount of tolls thus wrongfully exacted.

Appeal from Circuit Court, Breathitt County.

Action by O. A. Hagins against Breathitt County. From a judgment for plaintiff, defendant appeals. Reversed and remanded, for proceedings consistent with opinion.

South Strong and Chester Gourley, both of Jackson, and O. H. Pollard, of Lexington, for appellant.

E. E. Hogg, of Booneville, T. T. Cope, of Jackson, and A. F. Byrd, of Lexington, for appellee.

HURT, J. The county of Breathitt erected a bridge over a branch of the Kentucky river which flows through the city of Jackson, which is the capital of the county. For a number of years the fiscal court of the county leased the right to collect tolls from persons and vehicles, using the bridge, to the highest bidder, and the sums paid by the lessees were turned into the treasury of the county and expended by its fiscal court in defraying the On the necessary expenses of the county. 12th day of November, 1912, it was held, by a decision of this court in the action of Breathitt County v. Hammonds et al., 150 Ky. 502, 150 S. W. 661, 42 L. R. A. (N. S.) 836, Ann. Cas. 1914D, 514, that the county Wherefore the judgment is reversed, with of Breathitt did not have the right to require For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

healthy jails, nor for defects in the buildings of the county, which cause injuries, although the negligence of the officials of the county was gross; nor can the county be made liable for a positive wrongful act of its officials, in

the payment of tolls by the individuals of the public, who used the bridge. Thereafter the appellee, O. A. Hagins, instituted this action against the county to recover from it the tolls, which he had paid for the use of the bridge during a great number of years. | connection with their duties as officials, unless The county denied its liability, and also in- the liability is imposed by statute either diterposed a plea of the five-year statute of rectly or by necessary implication. Neither limitation. Before answering, however, the can a county be made liable to attorneys, who county demurred generally to appellee's sue for a citizen, who maintains a suit for cause of action, as stated in his petition, but all taxpayers, and secures the return to the the demurrer was overruled. The evidence county of funds which have been illegally upon the trial proved that the fiscal court, disbursed. Downing v. Mason County, 87 assuming the right to require the payment Ky. 208, 8 S. W. 264, 10 Ky. Law Rep. of tolls for the use of the bridge by the pub- 105, 12 Am. St. Rep. 473; Marion County v. lic, made orders directing the leasing of the Rives, 133 Ky. 477, 118 S. W. 309; Wheatly privilege of collecting tolls for the use of the v. Mercer County, 9 Bush, 704; Hite v. Whitbridge, and entered into contracts with the ley County Ct., 91 Ky. 168, 15 S. W. 57, 12 lessees, who paid the sums agreed upon be- Ky. Law Rep. 764, 11 L. R. A. 122; Simons tween them and the fiscal court for the right v. Gregory, 120 Ky. 116, 85 S. W. 751, 27 Ky. to collect tolls into the county treasury, and Law Rep. 509; Moberley v. Carter, 5 Ky. Law presumably were thereafter expended by Rep. 694; Shepard v. Pulaski County, 18 S. the county in the conduct of its fiscal affairs. W. 15, 13 Ky. Law Rep. 672; Sinkhorn v. The custodians of the county's funds were Lexington, 112 Ky. 205, 65 S. W. 356, 23 not made parties to the suit, nor the lessees Ky. Law Rep. 1479; Hardwick v. Franklin, of the bridge, who collected the tolls. At 120 Ky. 78, 85 S. W. 709, 27 Ky. Law Rep. the conclusion of the evidence offered upon 484; Coleman v. Eaker, 111 Ky. 131, 63 S. W. the trial, the county moved the court to di- 484, 23 Ky. Law Rep. 513; Moss v. Rowlett, rect a verdict in its favor, but this motion 112 Ky. 121, 65 S. W. 153, 358, 23 Ky. Law was overruled. Instead, the court directed Rep. 1411. the jury to return a verdict for the sum of $528 in favor of appellee, which it did, and a judgment was rendered accordingly. From the judgment the county has appealed.

[1-3] It is not questioned that, if appellee had a right of recovery at all, the judgment was for the proper amount, and the question of a right to sue the county and to recover upon the claim made by appellee was presented by his demurrer to the petition and upon his motion for a directed verdict. A county is only a quasi corporation, and is distinguishable, so far as liabilities are concerned, from a private or municipal corporation, as a city or town. It is a political division of the state, and a division for the purposes of government, and its activities are nearly, if not quite, all expended in matters of government, and in administering the sovereignties of the state, and for that reason there are only a few things for which a citizen may maintain a suit against the county. Being a portion of the state for governmental purposes, a county cannot be sued, unless there is a statute which expressly authorizes such an action to be maintained, or the right to do so, can be necessarily implied from an express power given, or it may be sued upon an express contract, which the county has authority to make. In accordance with this doctrine it has been held that an action cannot be maintained against a county for injuries sustained from neglect of its officials in keeping public roads and bridges in repair, nor for damages suffered

As further illustration of this doctrine, when taxes have been wrongfully collected by county officials, the citizen, who has paid the taxes, may maintain a suit directly against the person who has the money, from the collection of the taxes, in his possession, or for the purpose of distribution, and recover it; but he cannot maintain a suit against the county for it, after it has been paid out. Commonwealth, for, etc., v. Baske, 124 Ky. 468, 99 S. W. 316, 30 Ky. Law Rep. 400; Com. v. Stone, 114 Ky. 511, 71 S. W. 428, 24 Ky. Law Rep. 1297; Blair v. Carlisle, etc., Turnpike Co., 4 Bush, 157; Whaley v. Com., 110 Ky. 154, 61 S. W. 35, 23 Ky. Law Rep. 1292. In the instant case, the claim of appellee did not grow out of any express contract between him and the county, and the facts of the case upon principle cannot be distinguished from a case of wrongful collection of an illegal tax. The appellee, in his petition, alleges that the tolls were wrongfully collected from him. He paid the tolls, not to the county, but to a lessee of the county. His remedy was a proper proceeding against the individual who was collecting the tolls, to require him to cease, and for the recovery of any money paid, against the person who had it. Under the authorities herein cited, he had no cause of action against the county. There is no statute which expressly gives authority for his suit, nor is there any express power from which his right to maintain such a suit can be implied.

Neither the case of Moore v. Lawrence

by appellee, nor the earlier case of Layman | of his patent, and that the chestnut, Berry v. Beeler, 113 Ky. 221, 67 S. W. 995, 24 Ky. Lathram's corner, called for as a corner in Law Rep. 174, is authority for the maintenance of his action. Those were cases wherein damages were suffered by individuals from the actions of the county in the construction of roads, and the authority for the liability of the county is found in section 242, of the Constitution. The counties are invested with the power of taking private property for public use in the construction of roads, and are required by that section of the Constitution to make just compensation for the property taken, but in the instant case the county was not invested with the privilege of collecting tolls for the use of the bridge. Both the demurrer to the petition and the motion for a directed verdict should have prevailed. The judgment is therefore reversed, and cause remanded for proceedings consistent with this opinion.

Extraneous evidence offered to identify lands included in a patent to land issued by the state, which was void for uncertainty, held not sufficient for submission to jury.

Appeal from Circuit Court, Knox County. Action by J. C. Sproul against the Interstate Coal Company. From a judgment for defendant, plaintiff appeals. Affirmed.

J. D. Tuggle and W. R. Lay, both of Barbourville, for appellant.

his patent, is a well-known object and lo-
cated at figure 3; he also introduced new
evidence in an attempt to show that his pat-
ent might be closed from figure 1, to reach
which all called for courses and distances
had been disregarded, by following some 18
or more lines of a 200-acre Lunsford survey,
not referred to in the evidence upon the
former trial, to his beginning corner, the
white oak on the road at figure 9. It will
be noticed that the only calls in his patent
from the Spanish oak, Lathram's corner, lo-
|cated at figure 1 on the map, to his beginning
corner, are "thence E. 25 poles to a Spanish
oak, Lunsford's corner; thence with Luns-
ford's line to the beginning"-which rather
clearly indicates that the survey was to be
closed from Lunsford's Spanish oak corner
by one or possibly more lines of his 100-
acre patent previously referred to in plain-
tiff's patent, and it does not seem to have
occurred until quite recently to plaintiff, who
himself made this survey, that this was a
reference to Lunsford's 200-acre survey.
we do not think this effort to close his sur-

So

vey conforms in any substantial manner with the calls of his patent, or that the new evidence introduced by him upon the last trial upon this question was any more satisfactory than the theory advanced by him for closing the patent upon the former trial, which was rejected by this court; but, even if we might concede that the theory now advanced by him for closing his survey is a possible compliance with the calls of his patent, it would still be impossible in our judgment, upon his evidence upon the last trial, to make his patent cover the land in controversy, or any land.

He testified that he made the survey for Black, Black & Owens, of Barbourville, his brother upon which his patent was isfor appellee.

sued; that he had theretofore twice surveyed for Lunsford the processioner's lines

CLARKE, J. As was stated in the opin-around his lands, including the public road ion upon the former appeal of this case. which is reported in 160 Ky. 211, 169 S. W. 698, and contains copies of the map and patents referred to herein, J. C. Sproul brought this suit against the Interstate Coal Company to recover 25 acres of land which as he alleged was covered by a patent from the commonwealth to his brother, G. W. Sproul, of date October 28, 1891, and had been conveyed to him by the patentee.

This patent upon the former appeal was held to be void for uncertainty. Upon the return of the case, plaintiff introduced more evidence than on the first trial, tending to prove that the white oak, which is located at figure 9 on the map,1 was a corner to the A. Legere patent, and the beginning corner

1 See 160 Ky. 212, 169 S. W. 698, for this map.

from 9 to 14 on the map, and that there was
at that time a fence from 14 to Lathram's
chestnut corner at figure 3. He further ad-
mits he did not make an actual survey of the
lines supposed to connect his white oak and
chestnut corners, and it is apparent from
reading the Legere patent that to connect
these corners he simply copied the calls
from the Legere patent, because both his
patent and the Legere patent, to connect the
white oak and chestnut, call for substantial-
ly the same courses and identical distances,
which by survey do not even approximately
As stated in the
connect these two corners.
former appeal, this same uncertainty as
to the proper location of the connecting lines
between the white oak and chestnut had re-
sulted more than 20 years before in a con-
troversy between Lunsford and Ballou, who

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

Tenn.)

TATE V. GREENLEE

717

J. M. Cockrum, deceased, which consists en- [ to their cocomplainant, Frank Park, Jr., a one-
tirely of personalty, for a collateral inherit-
ance and succession tax under chapter 174 of
the Acts of 1893.

third undivided interest in said estate, over
nephews and niece of said Cockrum for their
and above the aggregate amounts paid the
This act provides for a tax upon all estates, respective expectancies, which was the sum of
real, personal, and mixed, situated in the $7,750. In other words, Tate and Greenlee,
state, whether the person dying seized there- by said assignment, transferred to said
of lived in the state or not, passing either by Frank Park, Jr., one-third of the profits real-
will or inheritance, or by deed, grant, bar-ized from their purchases of said expect-
gain, gift, or sale, made in contemplation of
death, or to take effect in possession or en-
joyment after the death of the grantor to any
person or body corporate or politic in trust,
or otherwise, when the property thus passing
goes to any other than the father, mother,
husband, wife, children, and lineal descend-
ants.

By another act passed at the same session of the General Assembly, being section 7, c. 89, p. 146, of the act of 1893, the exemption was extended to brothers, sisters, and wife or widow of a son, and husband of a daughter, and any legally adopted child.

By a further provision of said act of 1893, it is made the duty of the county court clerk, wherein such estates are located, to collect such tax, and the clerk is given the power to institute such suits as may be necessary for the collection of the same.

By section 22 of said act it is made the duty of the chancery court to see that said tax is paid to the clerk of the county court upon all estates being wound up or administered in said court, where such estates are liable for such tax, and such tax must be paid or retained before a legacy or share of the estate is paid or turned over to the owner; and, if any such tax is received by the clerk and master, it shall be ordered paid by him to the county court clerk, etc.

J. M. Cockrum died intestate and a resi-
dent of Grainger county, Tenn., on June 6,
1917. Some time prior to his death, on ac-
count of extreme age, he became mentally in-
capacitated to care for his property, and by
proper proceedings had in the county court of
Grainger county for that purpose the defend-
ant, Greenlee, was appointed guardian for
him, and as such guardian took charge of his
estate and managed and controlled the same
up until his death. The net value of said es-
state, upon the date of the death of the said
J. M. Cockrum, was $12,463.72. Mr. Cockrum
left no widow, children, descendants of chil-
dren, or brother or sister surviving him, but
left as his next of kin and only heirs at law
his nephews, Joe Cockrum and A. M. Cock-
rum, and his niece, Malissa Martin, who, up-
on dates prior to the death of the said J. M.
Cockrum, by separate instruments, assigned
and transferred their respective expectancies
in said estate to the complainants, W. A. Tate
and G. L. Greenlee.

Thereafter, on August 9, 1917, which was
after the death of the said J. M. Cockrum,
Tate and Greenlee assigned and transferred

ancies.

The assignment to Park was based on the consideration that, before the assignments by said nephews and niece of their expectancies in said estate to the complainants Tate and Greenlee, and before the death of the said J. ed said Park, who is a regular practicing atM. Cockrum, said nephews and niece employtorney, to institute proceedings to have a guardian appointed for said J. M. Cockrum, and to institute certain suits to recover his property, which he had undertaken to sell and and agreed with said Park that he should convey while mentally incapacitated to do so, have, for his services in said litigations, a one-fourth interest in said estate when the same should pass to said nephews and niece Upon the death of the said J. M. Cockrum, upon the death of the said J. M. Cockrum. and the guardian refusing to make settlement with complainants and surrender to them said estate, they filed the bill in this cause, alleging that they were the owners of said estate by virtue of said assignments hereinbefore mentioned, and asking that the guardian be required to pay the assets of said estate into court, and that said estate be wound up and administered in this cause, and that a decree be rendered against the guardian for of debts, shown to be due complainants under the amount of said estate, after the payment and by virtue of said assignments.

On September 11, 1917, and before the cause had been finally heard, J. M. Grove, clerk of the county court of Grainger county, filed his petition in said cause, in which it was alleged that the estate of the said J. M. Cockrum was liable to the state of Tennessee for a collateral inheritance tax of $5 upon each $100 of the clear value of said estate, and asking in said petition that he be given a decree for the use of the state for the amount of such collateral inheritance tax as might be shown to be due the state, and that such amount be impounded in the hands of the guardian of said estate, and that he be ordered to pay said tax to the petitioner for the use of the state.

The complainants answered this petition, admitting the death of the said J. M. Cockrum, and that he left surviving him the nephews and niece herein before mentioned ted that the defendant, R. M. Greenlee, was as his only heirs at law. They further admitthe regular guardian of the said J. M. Cockrum at the time of his death. They also admitted having purchased the expectancies of