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COVERY.

approved the doctrine that, where the whole directions to proceed in conformity with this road could not be operated except at a loss, opinion; each party to pay one-half of the its use might be abandoned in the absence of costs in this court and in the lower court. 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 manage

BREATHITT COUNTY v. HAGINS. ment except at a loss, the only remaining (Court of Appeals of Kentucky. Feb. 18, 1919.) question is: Do the facts in the record before us show such a condition as would warrant 1. COUNTIES. Owl-NATURE OF. the application of this rule?

A county is only a quasi corporation, and is [3] The weight of the evidence, as we think distinguishable, so far as liabilities are concernshows that this road cannot be operated ex ed, from a private or municipal corporation as cept at a loss; but there are a good many a city or town; it being only a political subdivifacts and circumstances pointing to the con- sion of the state. clusion that its unprofitable record has been (Ed. Note.-For other definitions, see Words caused by quarrels and dissensions in the and Phrases, First and Second Series, County.] management and generally inefficient control 2. COUNTIES 208-ACTIONS AGAINST. of its affairs, and so we are not entirely sat

Being portion of state for governmental purisfied that it may not be so conducted as to poses, county cannot be sued, unless statute be a remunerative property.

permits it, or right can be implied from express Accordingly, we think that a further test power given, or suit is on contract which county of the question whether this road can be op

could make. erated at a reasonable profit should be made 3. COUNTIES Om 210-ACTIONS AGAINST-REbefore the company should be permitted to abandon it. And in order that this disputed

Where county without authority leased to question of fact may be definitely settled and individuals right to collect tolls from users of the rights of the public, the owners, and the bridge, held, that one using the bridge cannot bondholders protected, we think that the recover from the county the amount of tolls property should be offered for sale as a go

thus wrongfully exacted. ing concern at an upset price of $21,000 with an obligation upon the part of the purchaser Appeal from Circuit Court, Breatbitt to continue its operation, and, if no purchas- County. er can be found at this price and under these

Action by 0. A. Hagins against Breathitt conditions, then the court should put it in County. From a judgment for plaintiff, de the hands of a receiver to be operated for a

fendant appeals. Reversed and remanded, year without incurring any expense in ex

for proceedings consistent with opinion. cess of the income of the property, and, if at the expiration of a year it is found that the South Strong and Chester Gourley, both road cannot be operated so as to yield a rea- of Jackson, and 0. H. Pollard, of Lexington, sonable profit to the owners, an order should for appellant. be made permitting the owners or trustee for E. E, Hogg, of Booneville, T. T. Cope, of the bondholders, as the case may be, to sell Jackson, and A. F. Byrd, of Lexington, for the road in any manner they please and for appellee. any price that suits them, with the right on the part of the purchaser to take up the HURT, J. The county of Breathitt erected tracks and other equipment and abandon the a bridge over a branch of the Kentucky river road, upon leaving the streets and highways which flows through the city of Jackson, occupied by the road and its equipment in as which is the capital of the county. For a good condition as the remainder of the ad. number of years the fiscal court of the county jacent streets and roads. We have fixed the leased the right to collect tolls from persons upset price at $21,000: First, because that and vehicles, using the bridge, to the highest appears to be the price at which the owners

bidder, and the sums paid by the lessees were and bondholders were willing to sell it; and,

turned into the treasury of the county and second, because the fixing of this price will expended by its fiscal court in defraying the prevent the property from being sold as a necessary expenses of the county. On the going concern at a nominal sum, thereby caus

12th day of November, 1912, it was held, by ing the owners and bondholders to lose the

a decision of this court in the action of difference between the amount at which they Breathitt County v. Hammonds et al., 150 were willing to sell it and the sum at which Ky. 502, 150 S. W. 661, 42 L. R. A. (N. S.) the road might be sold.

836, Ann. Cas. 1914D, 514, that the county Wherefore the judgment is reversed, with l of Breathitt did not have the right to require

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the payment of tolls by the individuals of the healthy jails, nor for defects in the buildings public, who used the bridge. Thereafter of the county, which cause injuries, although the appellee, 0. A. Hagins, instituted this the negligence of the officials of the county action against the county to recover from it was gross; nor can the county be made liable the tolls, which he had paid for the use of for a positive wrongful act of its officials, in 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 y. 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 (y. 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 481; 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 As further illustration of this doctrine, $528 in favor of appellee, which it did, and when taxes have been wrongfully collected a judgment was rendered accordingly. From by county officials, the citizen, who has paid the judgment the county has appealed. the taxes, may maintain a suit directly

[1-3] It is not questioned that, if appellee against the person who has the money, from had a right of recovery at all, the judgment the collection of the taxes, in his possession, was for the proper amount, and the question or for the purpose of distribution, and reof a right to sue the county and to recover cover it; but he cannot maintain a suit against upon the claim made by appellee was pre- the county for it, after it has been paid out. sented by his demurrer to the petition and Commonwealth, for, etc., v. Baske, 124 Ky. upon his motion for a directed verdict. A 468, 99 S. W. 316, 30 Ky. Law Rep. 400; Com. v. county is only a quasi corporation, and is Stone, 114 Ky. 511, 71 S. W. 428, 24 Ky. Law distinguishable, so far as liabilities are con- Rep. 1297; Blair v. Carlisle, etc., Turnpike cerned, from a private or municipal corpora- Co., 4 Bush, 157; Whaley v. Com., 110 Ky. 154, tion, as a city or town. It is a political di- 61 S. W. 35, 23 Ky. Law Rep. 1292. In the vision of the state, and a division for the instant case, the claim of appellee did not purposes of government, and its activities grow out of any express contract between are nearly, if not quite, all expended in mat him and the county, and the facts of the ters of government, and in administering case upon principle cannot be distinguished the sovereignties of the state, and for that from a case of wrongful collection of an illereason there are only a few things for which gal tax. The appellee, in his petition, alleges a citizen may maintain a suit against the that the tolls were wrongfully collected county. Being a portion of the state for from him. He paid the tolls, not to the coungovernmental purposes, a county cannot be ty, but to a lessee of the county. His remedy sued, unless there is a statute which express-was a proper proceeding against the individly authorizes such an action to be maintained, ual who was collecting the tolls, to require or the right to do so, can be necessarily im- him to cease, and for the recovery of any plied from an express power given, or it money paid, against the person who had it. may be sued upon an express contract, which Under the authorities herein cited, he had the county has authority to make. In accord- no cause of action against the county. There ance with this doctrine it has been held that is no statute which expressly gives authoran action cannot be maintained against a ity for his suit, nor is there any express county for injuries sustained from neglect power from which his right to maintain such of its officials in keeping public roads and a suit can be implied. bridges in repair, nor for damages suffered Neither the case of Moore v. Lawrence by prisoners on account of defective, un- County, 143 Ky. 418, 136 S. W. 1031, cited

CIENCY.

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 mainten- his patent, is a well-known object and 10ance of his action. Those were cases wherein cated at figure 3; he also introduced new damages were suffered by individuals from evidence in an attempt to show that his patthe actions of the county in the construction ent might be closed from figure 1, to reach of roads, and the authority for the liability which all called for courses and distances of the county is found in section 242, of the had been disregarded, by following some 18 Constitution. The counties are invested with or more lines of a 200-acre Lunsford survey, the power of taking private property for not referred to in the evidence upon the public use in the construction of roads, and former trial, to his beginning corner, the are 'required by that section of the Constitu- white oak on the road at figure 9. It will tion to make just compensation for the proper- be noticed that the only calls in his patent ty taken, but in the instant case the county from the Spanish oak, Lathram's corner, 10was not invested with the privilege of col-cated at figure 1 on the map, to his beginning lecting tolls for the use of the bridge. Both corner, are "thence E. 25 poles to a Spanish the demurrer to the petition and the motion oak, Lunsford's corner; thence with Lunsfor a directed verdict should have prevailed. ford's line to the beginning"-which rather

The judgment is therefore reversed, and clearly indicates that the survey was to be cause remanded for proceedings consistent closed from Lunsford's Spanish oak corner with this opinion.

by one or possibly more lines of his 100acre patent previously referred to in plaintiff's patent, and it does not seem to have occurred until quite recently to plaintiff, who

himself made this survey, that this was a SPROUL V. INTERSTATE COAL CO.

reference to Lunsford's 200-acre survey. So

we do not think this effort to close his sur(Court of Appeals of Kentucky. Feb. 14, 1919.) vey conforms in any substantial manner BOUNDARIES C 40(1) EVIDENCE SUFFI

with the calls of his patent, or that the new

evidence introduced by him upon the last Extraneous evidence offered to identify lands trial upon this question was any more satisIncluded in a patent to land issued by the state, factory than the theory advanced by him which was void for uncertainty, held not suffi- for closing the patent upon the former trial, cient for submission to jury.

which was rejected by this court; but, even

if we might concede that the theory now Appeal from Circuit Court, Knox County. advanced by him for closing his survey is a

Action by J. C. Sproul against the Inter- possible compliance with the calls of his state Coal Company. From a judgment for patent, it would still be impossible in our defendant, plaintiff appeals. Affirmed.

judgment, upon his evidence upon the last

trial, to make his patent cover the land in J. D. Tuggle and W. R. Lay, both of Bar-controversy, or any land. bourville, for appellant.

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 sur

veyed 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. from 9 to 14 on the map, and that there was which is reported in 160 Ky. 211, 169 S. W. at that time a fence from 14 to Lathram's 698, and contains copies of the map and pat- chestnut corner at figure 3. He further adents referred to herein, J. C. Sproul brought mits he did not make an actual survey of the this suit against the Interstate Coal Compa- lines supposed to connect his white oak and ny to recover 25 acres of land which as he chestnut corners, and it is apparent from alleged was covered by a patent from the reading the Legere patent that to connect commonwealth to his brother, G. W. Sproul, these corners he simply copied the calls of date October 28, 1891, and had been con- from the Legere patent, because both his veyed to him by the patentee.

patent and the Legere patent, to connect the This patent upon the former appeal was white oak and chestnut, call for substantialheld to be void for uncertainty. Upon the ly the same courses and identical distances, return of the case, plaintiff introduced more which by survey do not even approximately evidence than on the first trial, tending to connect these two corners. As stated in the prove that the white oak, which is located former appeal, this same uncertainty as at figure 9 on the map,i was a corner to the to the proper location of the connecting lines A. Legere patent, and the beginning corner between the white oak and chestnut had re

sulted more than 20 years before in a con1 See 160 Ky. 212, 169 S. W. 698, for this map. troversy between Lunsford and Ballou, who

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

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then owned the Legere patent, by whose re- , closing lines, and therefore include, not only spective contentions these patents overlap- none of the land in controversy, but no land ped, and that they had in 1871 settled this whatever. Consequently the trial court did controversy by having the lines processioned, not err in sustaining, at the close of the and which were thus located so as to run evidence introduced in plaintiff's behalf, the with the county road, the crooked dotted defendant's motion for a peremptory instrucline from 9 to 14, and with the fence from tion. 14 to 3; so that, when plaintiff attempted to Wherefore the judgment is affirmed locate his survey and patent in 1891, and copied from the Legere patent two intervening lines supposed to connect the white oak and chestnut, which he did not survey, and which did not accomplish this result, he must have known that the lines of the Legere pat

TATE et al. v. GREENLEE. ent which connected the white oak and

(Supreme Court of Tennessee. Nov. 25, 1918.) chestnut had been definitely located upon the land by processioners for the adjoining 1. TAXATION Om905(1)-INHERITANCE TAXlandowners, and that the error in the cours

COLLECTION JURISDICTION. es and distances by which these lines were

Where bill is filed in chancery to settle an described in the Legere patent had been

estate, clerk of county court, under Acts 1893,

C. 174, § 22, can maintain petition in such suit corrected by the visible and marked line be

to collect inheritance tax. tween the white oak and the chestnut, running with the county road and the fence, as

2. APPEAL AND ERROR 185(1)–OBJECTION indicated by the line 9 to 14 to 3 on the map,

Nor RAISED BELOW.

Question as to whether, in bill to settle esand he cannot now get away from this long

tate in chancery, clerk of county court can established location of these lines by a resort

| petition to collect inheritance tax, cannot be to a method of survey which would have been acceptable in the absence of an established,

3. TAXATION 889 - INHERITANCE TAX marked, and known location theretofore

PROPERTY SUBJECT. made by the parties upon the land, because

The only interest that nephews and niece of the familiar rule that courses and dis- | bad in estate before intestate's death was the tances and approved methods of surveying possibility that they might outlive intestate, and them must yield to known objects and monu- assignment by them of rights in estate did not ments called for, and here the Legere lines transmit any vested interest, and estate would called for were, as they had been located be liable to collateral inheritance and succes. and marked on the ground, known objects,

sion tax under Acts 1893, c. 174, and Acts 1893, just as were the white oak and chestnut C. 19, 31. corners.

4. ASSIGNMENTS 8 - CONVEYANCE OF ExWhen plaintiff's lines connecting the white PECTANT ESTATE. oak and chestnut are run with the lines of An agreement or covenant to convey by an the Legere patent called for as they had been heir expectant and sui juris, if fairly made and established, and of which plaintiff must

based on a valuable consideration, will be enhave known before he made his survey, they

forced as against the grantor and privies, when

ever the property comes into his possession, but coincide with the lines of the Lunsford 200

not until then. acre survey, which he now claims as his closing lines, but which evidently were not Appeal from Chancery Court, Grainger so regarded when the survey was made, as | County; Hugh G. Kyle, Chancellor. the reference in the patent is only to Lunsford's 100-acre patent; nor does such a

Bill by W. A. Tate and others against R. possibility seem to have occurred to plain

M. Greenlee, guardian of J. M. Cockrum, intiff himself until after the first trial of the

sane. Before the cause had been finally case.

heard, said ward died, and J. M. Grove, clerk It is therefore apparent that, even if we

of the county court, filed a petition in said accept the introduction upon the last trial

cause for collection of collateral inheritance

tax on his estate. The petition was sustainof the 200-acre Lunsford patent as affording a possible basis for closing plaintiff's survey

ed, and from the decree rendered, complainfrom the Spanish oak called for in his patent

ants appeal. Afirmed. as Lunsford's corner, the location of his Frank Park, Jr., of Jefferson City, for Tate patent is shown to be even more indefinite and others. and impossible than upon the first trial, be- J. M. Grove, of Rutledge, McCanless, Cole cause running with Legere's lines as they man & Taylor, of Morristown, and Frank M. had been located and were then visibly Thompson, of Chattanooga, for Greenlee. marked upon the land, the first two lines of his patent pass along the eastern side of the HALL, J. The question presented on this land in controversy and coincide with his / appeal is one of the liability of the estate of

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

J. M. Cockrum, deceased, which consists en- s to their cocomplainant, Frank Park, Jr., a onetirely of personalty, for a collateral inherit- third undivided interest in sald estate, over ance and succession tax under chapter 174 of and above the aggregate amounts paid the the Acts of 1893.

nephews and niece of said Cockrum for their 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 realwill or inheritance, or by deed, grant, bar- ized from their purchases of said expectgain, gift, or sale, made in contemplation of ancies. death, or to take effect in possession or en- The assignment to Park was based on the joyment after the death of the grantor to any consideration that, before the assignments by person or body corporate or politic in trust, said nephews and niece of their expectancies or otherwise, when the property thus passing in said estate to the complainants Tate and goes to any other than the father, mother, Greenlee, and before the death of the said J. husband, wife, children, and lineal descend- M. Cockrum, said nephews and piece employants.

ed said Park, who is a regular practicing atBy another act passed at the same session torney, to institute proceedings to have a of the General Assembly, being section 7, c. guardian appointed for said J. M. Cockrum, 89, p. 146, of the act of 1893, the exemption and to institute certain suits to recover his was extended to brothers, sisters, and wife or property, which he had undertaken to sell and widow of a son, and husband of a daughter, convey while mentally incapacitated to do so, and any legally adopted child.

and agreed with said Park that he should By a further provision of said act of 1893, have, for his services in , said litigations, a it is made the duty of the county court clerk, one-fourth interest in said estate when the wherein such estates are located, to collect same should pass to said nephews and niece such tax, and the clerk is given the power to upon the death of the said J. M. Cockrum. institute such suits as may be necessary for Upon the death of the said J. M. Cockrum, the collection of the same.

and the guardian refusing to make settlement By section 22 of said act it is made the with complainants and surrender to them duty of the chancery court to see that said said estate, they filed the bill in this cause, tax is paid to the clerk of the county court alleging that they were the owners of said upon all estates being wound up or adminis. estate by virtue of said assignments herein. tered in said court, where such estates are before mentioned, and asking that the guardi. liable for such tax, and such tax must be paid an be required to pay the assets of said estate or retained before a legacy or share of the es- into court, and that said estate be wound up tate is paid or turned over to the owner; and, and administered in this cause, and that a if any such tax is received by the clerk and decree be rendered against the guardian for master, it shall be ordered paid by him to the the amount of said estate, after the payment county court clerk, etc.

of debts, shown to be due complainants under J. M. Cockrum died intestate and a resi- and by virtue of said assignments. dent of Grainger county, Tenn., on June 6, On September 11, 1917, and before the 1917. Some time prior to his death, on ac- cause had been finally heard, J. M. Grove, count of extreme age, he became mentally in- clerk of the county court of Grainger county, capacitated to care for his property, and by filed his petition in said cause, in which it proper proceedings had in the county court of was alleged that the estate of the said J. M. Grainger county for that purpose the defend- Cockrum was liable to the state of Tennessee ant, Greenlee, was appointed guardian for for a collateral inheritance tax of $5 upon him, and as such guardian took charge of his each $100 of the clear value of said estate, estate and managed and controlled the same and asking in said petition that he be given a up until his death. The net value of said es- decree for the use of the state for the amount state, upon the date of the death of the said of such collateral inheritance tax as might J. M. Cockrum, was $12,463.72. Mr. Cockrum be shown to be due the state, and that such left no widow, children, descendants of chil- amount be impounded in the hands of the dren, or brother or sister surviving him, but guardian of said estate, and that he be orleft as his next of kin and only heirs at law dered to pay said tax to the petitioner for the his nephews, Joe Cockrum and A. M. Cock- use of the state. rum, and his niece, Malissa Martin, who, up- The complainants answered this petition, on dates prior to the death of the said J. M. admitting the death of the said J. M. CockCockrum, by separate instruments, assigned rum, and that he left surviving him the and transferred their respective expectancies nephews and niece hereinbefore mentioned in said estate to the complainants, W. A. Tate as his only heirs at law. They further admitand G. L. Greenlee.

ted that the defendant, R. M. Greenlee, was Thereafter, on August 9, 1917, which was the regular guardian of the said J. M. Cockafter the death of the said J. M. Cockrum, rum at the time of his death. They also adTate and Greenlee assigned and transferred mitted having purchased the expectancies of

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