6. TRIAL 139-PEREMPTORY INSTRUCTION-[appellants to the report of the commissionEVIDENCE. ers in the county court, which report seems The refusal of a peremptory instruction. to have conformed to the requirements of the where the evidence preponderates upon the other side, is not error, and will not be disturbed on appeal.

statute in its showing as to the necessity for and practicability of the making of the proposed alteration in the road. The verdict of the jury was as follows:

"We, the jury, recommend that the crossing, as it now is, be discontinued, and further recommend the change proposed and described in the petition filed in this case by the petitioners, calling for the overhead bridge."

though not in the same form or as elaborate The findings expressed in the verdict, in detail, accord with those of the commissioners. No objection seems to be urged to the form of the verdict, and it was made the basis for the judgment of the circuit court, which approved and established the alteration in the road and the construction of the overhead bridge over the railroad, as recommended by it. The present appeal is from that judgment.

[1, 2] The grounds urged by appellants for a new trial are numerous, but we will consider only such of them as we regard material. The first ground is that the circuit court erred in overruling appellants' special demurrer to the petition. The demurrer was for alleged defect of parties, in that the Cincinnati, New Orleans & Texas Pacific Railroad Company was not made a party to the

SETTLE, J. This is the second appeal in this case. We quote from the opinion on the first appeal (Carrick, etc., v. Garth, etc., 159 Ky. 505, 167 S. W. 687) such of the facts as give the history of the case down to its return to the circuit court after the reversal of the judgment by this court, which result-proceeding. ed solely from the erroneous ruling of the circuit court in dismissing the appeal taken to that court by the appellants from the judgment of the county court:

"Appellees, Garth and others, instituted in the Scott county court a proceeding seeking the alteration of a portion of the county road known as the Lemon's Mill pike, the change sought to be made being the closing of a portion of the road so as to abolish a grade crossing over the track of the Cincinnati, New Orleans & Texas Pacific Railroad, and the opening of a new road in lieu of the portion discontinued, at a point where the crossing over the railroad track could be made by an overhead bridge. Appellant Carrick owns land along the Lemon's Mill pike abutting that portion of the pike sought to be vacated; and he and other remonstrants appeared in the county court and filed exceptions to the report of the commissioners, which report was in favor of the proposed alteration. The county court overruled the exceptions, and ordered the alteration made. The remonstrants appealed to the circuit court. There a motion was made by the petitioners to dismiss the appeal upon the ground that the remonstrants had no right to prosecute an appeal from the order of the county court. The circuit court sustained this motion and dismissed the appeal; and of that ruling Carrick and the other remonstrants complain upon this appeal. * * *

Notwithstanding their special demurrer, when the railroad company was later made a party to the proceeding on its own motion, the order was objected to by the

appellants. The railroad company was a necessary party to the proceeding, and its being made a party caused no change in the issues involved, nor in the status of the other parties in interest. If, however, it could properly be said it was error to make it a party, appellants, after objecting by special demurrer because it was not a party, are estopped to complain that it was made so.

[3] It is also insisted for appellants that the circuit court ignored the report of the commissioners and their exceptions thereto, and tried the case as if it were an action ordinarily originating in that court; and this is assigned as error. The contention is without merit. It is true the exceptions to the commissioners' report were not taken up and disposed of seriatim, but this was not necessary, as every material issue of fact they raised was submitted to and determined by the jury under the court's instructions, and such questions of law as they raised were properly determined by the court. Section 4303, Kentucky Statutes 1909, provides that

"We are therefore of the opinion that any person may appear and upon motion be made a party to the proceeding, and may resist the ap-upon an appeal of such a case from the counplication for the alteration of a public road, and that such person may appeal to the circuit court from the order entered by the county court."

Upon the trial in the circuit court, following the filing therein of the mandate of this court, to the jury was submitted the identical issues presented by the exceptions filed by

ty court to the circuit court, it shall be tried in the latter court de novo, and such method of trial seems to have been required by the opinion on the former appeal. If there had not been a trial de novo, it would have been only necessary for the circuit court to determine whether the order made by the county

court, establishing the alteration in the road, was warranted by the commissioners' report. Manifestly the hearing it de novo did not prejudice the rights of the appellants. They insisted upon a de novo hearing, which the court accorded, permitting them to introduce all the evidence bearing upon the question whether the proposed alteration in the road was feasible and desirable. It is patent, therefore, that the issues raised by appellants' exceptions to the commissioners' report were not ignored, but tried and determined. If the act of 1912 (Laws 1912, c. 110) was applicable, there was no right of appeal to the circuit court. On the other hand, if the present statute were in force, the appeal was triable in the circuit court de novo. The opinion on the first appeal by necessary implication held that the present statute was applicable, and directed that the appeal stood for trial de novo in the circuit court.

A warehouse abutting on a railroad track and surrounded on three sides by defendant's land was conveyed to plaintiff. At that time the all of the warehouses, there being a passway on way used over the tracks furnished access to the property conveyed which led to the rear of the building. Thereafter plaintiff remodeled its property including in the warehouse the passway. Held that, though the change in the building prevented access to the rear portion from the railroad track, plaintiff could not claim a way of necessity over defendant's land, notwithstanding the rule that, where land conveyed is entirely surrounded by lands of a grantor, a way of necessity is implied.

[4-6] Appellants' complaint of the amendment of a clerical error in the report of the commissioners after the case reached the circuit court is without merit. The error was patent, and the amendment should have been made; indeed, was proper, in view of the right of the parties to a trial de novo in the circuit court. Appellants' complaint of the refusal of the peremptory instruction asked by them is untenable, as the weight of the evidence upon every issue was in favor of the petitioners. The objections to the in structions are likewise untenable. They fair-3. ly and properly submitted to the jury every material issue of fact necessary to a correct decision of the case.

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. 18.]

EASEMENTS 18- WAYS OF NECESSITYRIGHT TO.

In such case, way of necessity over defendant's land cannot be had on the ground that the ed; there being no prospect of a revocation. way across the railroad tracks might be revok

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. 18.] 4. EASEMENTS 17-CONVEYANCES-"APPURTENANCE."

[7] So much of the judgment complained of as required the erection of fencing across the turnpike at the side of the railroad is not open to the objection urged to it by appellants. The matter to be determined was whether the alteration in the road was nec-derstood to mean the right to use those things The word "appurtenances" is generally unessary and proper. The fencing was an in- which are essential to the full enjoyment of the cidental matter, which prevented the use of premises conveyed, therefore a conveyance of a the railroad crossing, forced travel to the warehouse with appurtenances will not carry road as altered, and protected the abandon- with it the right to use a private way over the ed portion of the highway from being used ed for plaintiff's full enjoyment of the premises. grantor's land which at that time was not needby the public. Besides, such fencing was specifically asked in the application for the closing of the road.

It is apparent from the record before us that appellants asked for a hearing in the circuit court before a jury, and it was given them. They were permitted to plead and deny the material averments of the petition for the alteration. Proof was heard as to all issues presented by the pleadings, whereby the questions of convenience and inconvenience, and of safety or danger from the closing of the old road and the establishment of the alteration were fully elucidated, from all of which it appears that the alteration made is for the best interests of the citizens of Scott county; in view of which we are unable to see that any injustice was done the appellants. The jury found against them,

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 45-49; Dec. Dig. 17. For other definitions, see Words and Phrases, First and Second Series, Appurtenance.] 5. LICENSES 58-WAYS-REVOCATION.

Where defendant granted plaintiff license to use a way over its land with the express condition that it might be revoked at pleasure, plaintiff's construction of a permanent way will not estop defendant from revoking the license.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. §§ 116-121; Dec. Dig. 58.]

Appeal from Circuit Court, Madison County.

Suit by the Warwick Company against the Kentucky Distilleries & Warehouse Company. From the judgment for plaintiff, defendant appeals and plaintiff cross-appeals. Reversed on the original appeal, and affirmed on the cross-appeal.

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

Wm. Marshall Bullitt, of Louisville, for appellant. J. A. Sullivan, of Richmond, and Barclay, Orthwein & Wallace, of St. Louis, Mo., for appellee.

building covered the entire lot which was the only land owned by the Warwick Company on the east side of the railroad. When this improvement was made, the rear end of the building-that is, the end farthest from the railroad-was converted into a bottling house and separated from the warehouse proper by a solid partition wall, and in the north wall of this bottling room a door was made that furnished an entrance to the room. After the building had been thus divided into a warehouse and a bottling house, access could not be had to the bottling house through the warehouse; and so it was necessary, in taking barrels of whisky from the warehouse to the bottling house to be placed in bottles, to take the barrels out of the front door of the warehouse and carry them around the outside wall to the door of the bottling house, and this, of course, made it necessary to have a passway over the land of the Kentucky Company. Under the impression that it did not have the passway as a matter of right over the land of the Kentucky Company along the north wall of the warehouse from the railroad to the door of the bottling house, in April, 1908, the Warwick Company wrote to the Kentucky Company a letter in which it said:

CARROLL, J. The dispute in this case grows out of a controversy over the right claimed by the appellee Warwick Company to an easement over the land of the appellant, which will be called for convenience the Kentucky Company. It appears that in 1871, or perhaps a few years before, the distillery now owned by the Kentucky Company was operated by W. S. Hume & Co. In 1882 the distillery now owned by the Warwick Company was built near to the distillery established by Hume & Co., and for a couple of years these two distilleries were owned and operated by the same people. In 1884 the distillery properties were separated, the Warwick Company distillery passing into the hands of the Bennetts and Burnams, and what is now the Kentucky Company distillery into the hands of the Humes. In 1899 the Kentucky Company purchased the Hume distillery, and in 1906 the Bernheim Distillery Company became the owners of the Warwick Company. All of this property is situated immediately on the Louisville & Nashville Railroad Company. One warehouse of the Warwick Company and the distillery plant proper of the Kentucky Company are situated on what may be called the east side of the railroad, and the distillery proper of the Warwick Company and some of its warehouses, as well as warehouses of the Kentucky Company, are situated on the west side of the railroad; but, as this controversy centers about the warehouse of the Warwick Company which is sit-swered this letter and said: uated on the east side of the railroad, it will not be necessary to notice further the location of the other buildings of either company. This warehouse was originally erected in 1882. It fronted immediately on the property line of the railroad company and was surrounded on the other three sides by the land of the Humes now owned by the Kentucky Company. The building was in the shape of an ell and occupied the whole of the lot that was conveyed to the Warwick Company in 1884, when the distillery properties were divided, except that between the wall on the north side and the property line on the north side there was a vacant space several feet wide that extended back about 80 feet to the ell. And in the end of this ell that fronted on the vacant space there was a door. The only other doors in the building were in the end that opened on the right of way of the railroad, and access to the interior of this warehouse was generally had through these end doors; but occasionally the door in the ell was used. In 1907 the Warwick Company remodeled this old warehouse building by making it several stories higher and taking in the vacant strip of

"The extreme end of the warehouse is to be used by us in the future for a bottling and bond plant. We are forced, however, to have an opening fronting on your property, and also obtain from your corporation sufficient room, say five to seven feet, on your property, so as to permit our constructing a gangway giving us access from the front to the rear end of our warehouse. We are willing, if it meets with your approval, either to buy the necessary land at a reasonable price or to lease it."

In May, 1908, the Kentucky Company an

"We are quite willing to give you ingress and egress to and from your bottling warehouse in the southeast corner of your warehouse adjoining our premises over a strip of land seven feet wide immediately northeast and alongside of said warehouse, upon conditions that said strip is not to be made a part of your distillery premises and that this consent to enable you to use same may be canceled at our pleasure."

Acting under the authority of this consent, the Warwick Company constructed a platform about seven feet wide along the north side of the warehouse extending from the railroad to the door of the bottling department, and used this platform for the purpose of taking whisky to and from the bottling house to the warehouse until 1911, when the Kentucky Company revoked the consent it had given to use this passway; and soon after that time this suit was brought by the Warwick Company to enjoin the Kentucky Company from interfering with its right to use this passway and to recover damages for its obstruction which began when the license was revoked. After the case was prepared for trial, the court adjudged that the Warwick Company was entitled to a passway leading from the right of

be had through the main entrance at the front. But when this entrance at the ell was used, there was no objection by the Humes to the use of this road that passed close by this entrance.

its warehouse to its bottling house in the ending on that part of the lot not occupied of the warehouse, and the Kentucky Com- by the warehouse building; but the use of pany was enjoined from its obstruction. It this door was merely desultory and occasionwas further adjudged that the Warwick Com- al, and there seems to have been no necespany should remove the plank platform plac- sity for its use, as ample ingress and egress ed on this passway after it obtained the con- to and from the warehouse building could sent before mentioned; and also adjudged that the Warwick Company was not entitled to any damages for the deprivation of the use of this passway during the time it was obstructed. From this judgment the Kentucky Company appeals, and the Warwick Company prosecutes a cross-appeal, insisting that the court erred in not awarding it damages on account of the obstruction of its right to use the passway between the time of the obstruction and the filing of the suit, when the use of the passway was secured by a temporary injunction.

way.

In the view we have of this case the only question that needs to be disposed of is the right of the Warwick Company to this passThe Kentucky Company contends on this appeal that the use of this passway was merely permissive, and that it had the right to revoke, as it did, the privilege granted in the letter of May, 1908; while the Warwick Company insists that, independent of this permission, it had the right to the use of this passway, as the land over which it ran (1) had been dedicated to public use; (2) was granted to it by an implication of law; (3) was a way of necessity; (4) was conveyed to it under the term "appurtenanc

es" used in the deed.

[1] It is very clear, we think, from the evidence, that the use of this road by the Bennetts and Burnams was entirely permissive. It was merely an occasional use by them, not a way of necessity, and this occasional use was never objected to by the Humes, who, as stated, were on terms of intimacy with the Burnams and Bennetts. The public generally did not use this road, as it passed entirely over the land of the Humes and was intended as a passway for the benefit of the farm and distillery properties owned by them. The only one of the public appearing to have claimed the right to use this road is a man named Baldwin, who, in 1905, purchased a part of the Hume farm and used this road, as he claimed, as a matter of right in going to and from his matter of right in going to and from his of the Warwick Company that this road was farm. Our conclusion is that the assertion of the Warwick Company that this road was dedicated to the public, and therefore it had the right to use it as a means of ingress and egress to and from its bottling house, is not sustained by the evidence. In reaching this conclusion we do not treat the letter of the Warwick Company, requesting permission to use this passway, as an acknowledgment that the right did not previously exist, or as a confession that the privilege of using it was obtained only by virtue of and under this written consent. It is, however, a circumstance tending to confirm our opinion that the Warwick Company recognized the fact that it was not entitled as a matter of right to the use of this passway, although not conclusive of this question; for, if a person has the right to the use of a passway, the mere fact that he does not understand or appreciate the extent of his right, and consequently seeks and obtains a permissive use, his effort to obtain permission will not deprive him of the use to which he was entitled without the permission.

From the time these two distilleries were erected until the sale of what may be called the Hume property to the Kentucky Company in 1899, and the sale of what may be called the Bennett and Burnam Company to the Bernheims in 1906, they were owned by the Bennetts, Burnams and Humes, all of whom, aside from being related to each other, were on terms of intimacy; and during the time the property was owned by these people there appears to have been no objection by any of them to the use of the land of the other for passway purposes. It is further shown that probably as far back as 1880 the Humes had made for their convenience a passway or road extending from Silver creek along the north side of this warehouse building to the railroad, and thence to the Richmond and Lancaster turnpike. After 1884, when the distillery property was divided and the warehouse in question pass[2, 3] As we have stated, this entire lot is ed into the hands of the Bennetts and Bur- now occupied by the new warehouse consistnams, they had little occasion to use this ing of the warehouse proper and the bottling road, which was on the land of the Humes house and is surrounded on three sides by and several feet from the north wall of the the land of the Kentucky Company, and the warehouse. The Bennetts and Burnams did argument is made that, where land conveyed not own any land on the east side of the is entirely surrounded by the lands of the railroad besides the lot on which this ware- grantor, the grant of a right of way as a house was situated, and access to the ware- necessity over the land of the grantor to and house, except on rare occasions, was had from the land conveyed will be implied as through the doors in the end fronting on the a matter of law. Estep v. Hammons, 104 railroad. Occasionally, however, use was Ky. 144, 46 S. W. 715, 20 Ky. Law Rep. 448;

Dec. 541; Beall v. Clore, 6 Bush, 676; Hall [tween the warehouse proper and the bottling v. McLeod, 2 Metc. 98, 74 Am. Dec. 400.

We are not disposed to question the correctness of this principle, but do not find it applicable to the case we have. At the time the vendors of the Kentucky Company conveyed to the Warwick Company the land on which this warehouse was situated, it was not necessary to the use of the warehouse that there should be an entrance on the north side, or, indeed, on any side of the building except the end fronting on the railroad where the principal doors that opened into the warehouse were located. At this time the entire building was used for warehouse purposes, and full and free ingress and egress to and from all parts of the building could be had through the doors in the end fronting on the right of way of the railroad, and these doors, with rare exceptions, were used as a means of ingress and egress. But if it should be said that the door in the ell on the north side of the building was occasionally used, and that access to this door was necessary in the proper use of the building, the Warwick Company had access to this door over its own land. It could pass from the railroad over that part of its lot not occupied by the building and go into the door in the ell. It is true there was a coal shed, and perhaps another little building, on the end of this vacant space next to the railroad; but these buildings could easily have been taken away, and then there would have been ample room over its own land for access from the right of way of the railroad to this door in the

ell.

house so that there was no way of getting to the bottling house except over the land of the Kentucky Company. It is therefore obvious that, if the use of the passway over the land of the Kentucky Company is now necessary to give the Warwick Company access to its bottling house, this necessity was voluntarily created by the Warwick Company. A right of way over the land of the Kentucky Company was not necessary to the use of the warehouse or any part of it when the conveyance was made or until many years afterwards when the improvements were made.

Now we think that when a grantor conveys land to which the grantee has a way that furnishes him full and free access to the property conveyed, and the grantee thereafter voluntarily closes up this way or deprives himself of its use, he cannot claim by implication of law another right of way over the land of the grantor. 14 Cyc. 1175; Mitchell V. Seipel, 53 Md. 251, 36 Am. Rep. 404.

[4] It is further said that, as the deed to the Warwick Company conveyed the land and "all the appurtenances thereto belonging," the right to the use of this road passed as one of the appurtenances. The word "appurtenances" is generally understood to mean the right to the use of those things that are essential to the full enjoyment of the premises conveyed and which were used as necessary incidents thereto at the time of the conveyance. Bouvier's Law Dictionary; Parsons v. Johnson, 68 N. Y. 62, 23 Am. Rep. 149. But as we have endeavored to point out, this passway was not necessary to the full enjoyment of the property conveyed at the time of the conveyance. It was not an incident or an appurtenance to it. It was not mentioned in any manner in the deed, and we may assume was not in the contemplation of the parties when the conveyance was made.

There is, too, some claim that the use of the railroad right of way was merely permissive, and that, if the railroad should prevent the use of its right of way, ingress and egress to and from the building would be entirely closed unless it could be had along this passway. But we find no merit whatever in the claim that there is any probability that the right of ingress and egress over the right of way of the railroad will ever be interfered with. So that when the ground occupied by this warehouse building was conveyed by the grantors of the Kentucky Company to the Warwick Company in 1884, and continually from that time until 1907, after the property had been acquired by the Bernheims, there was at all times an uninterrupted way of ingress and egress to and from this warehouse building, and all parts of it, without going upon the land of the grantor. But after the Bernheims acquired this property in 1906 they proceeded to rebuild and extend the walls of the warehouse until they covered the entire lot, leaving the doors in the end of the building fronting on the railroad as the only way of entrance to it unless a way was had over the land of the Kentucky Company. In addition to this, they converted the rear end of the warehouse building into Upon the whole case, our conclusion is that a bottling house and built a solid wall be- the judgment should be reversed on the orig

[5] It is further suggested that the Kentucky Company is estopped to deny the Warwick Company the use of this passway upon the ground that the Kentucky Company saw the improvements being made by the Warwick Company and knew that these improve ments would make indispensable this passway in the use of the bottling house, but did not intimate that it would attempt to deprive it of the use of the passway. A sufficient answer to the assertion of estoppel is that the Warwick Company obtained permission to use this passway with the express understanding that the permission might be revoked at any time. In view of this fact, it cannot be said that the Warwick Company made the improvements ignorant of the fact that it might be deprived of the use of the passway at the will of the Kentucky Company.