(222 S.W.) sult were we to accept Smith's theory of the SAMPSON, J. On November 20, 1918, Willater verbal agreement. His proof wholly liam B. Hungate, while attempting to cross fails him here. There is no evidence of any the tracks of the Southern Railway Company defective workmanship or materials. A few in the town of Harrodsburg, was struck by of those who purchased the machines had an engine and suffered a very painful injury. some trouble in sewing heavy goods, and they He brought this action to recover damages complained of the thread breaking. Each alleging that the railway company and its complaint was traceable to the inexperience servants in charge of the engine were guilty of the operator, especially in the use of cer- of negligence in failing to sound a warning tain attachments. All of this is satisfac-signal on the approach of the train to the torily accounted for and made plain by a witness for the company in his testimony and by a demonstration in open court before the jury on one of the machines claimed to have been defective. Nor did Smith offer to return any of the machines until a short time before this suit was filed. It is rather significant that after he claims to have learned the machines were not as represented and were not giving satisfaction Smith sent the company a remittance on account. Looking at the case from every angle, it is clear that appellant was entitled to a directed verdict, and upon a retrial, the evidence being substantially the same, the jury should be so instructed. The motion for an appeal is sustained, the appeal granted, and judgment reversed for further proceedings consistent herewith. street crossing; and further that the injury happened at a place on the tracks of the railroad habitually used by the public as a thoroughfare, and that all pedestrians traveling in that locality constantly and as a matter of right used the tracks of the railroad at that point as a passway with the knowledge and acquiescence of the railway company, and that this had continued for many years. At the conclusion of the evidence for the plaintiff, Hungate, the court sustained the motion of the railroad company for a directed verdict in its favor, and Hungate appeals. The accident happened on the railroad track near Office street and within about a hundred yards of the depot of the railway company, in the city of Harrodsburg. According to the evidence of the plaintiff, he was traveling along a path parallel with the railroad track until he came near Office street which runs at right angles with the railroad. Here he glanced back over the railroad track to see if a train was coming, and not seeing HUNGATE v. HINES, Director General of any he advanced, crossing Office street to the Railroads. (Court of Appeals of Kentucky. June 1, 1920.) 1. Railroads 398 (1)—Evidence held insuffi cient to show license to use tracks. In a pedestrian's action for injuries while attempting to cross railroad tracks, evidence held insufficient to establish license to use tracks at place in question, so that he was a trespasser, if place of injury was not in public street or sidewalk which lay along its margin. 2. Railroads 369 (3)-Pedestrian held a trespasser not entitled to lookout and signal. Where a pedestrian, when struck by a railroad's locomotive, was several feet from public street, and at a place on tracks where he had no right to be, and was therefore a trespasser, railroad company did not owe him duty to maintain lookout or to signal. Appeal from Circuit Court, Mercer County. Action by W. B. Hungate against Walker D. Hines, Director General of Railroads. From judgment for defendant, plaintiff appeals. Affirmed. pavement on the other side, where he talked to an acquaintance and then started diagonally across the railroad track, and just as he stepped upon the ends of the ties the engine struck him, knocking him some 20 feet and inflicting the injuries aforesaid. It is appellant's contention that he had barely crossed the street and was entering on the railroad track at a point only a few feet beyond said street when he was struck, but that the point at which he was struck was one over which the public habitually traveled in going to and from points of public interest in that vicinity with the knowledge and acquiescence of the railway company, and that the railway company as a consequence owed to him as a licensee a lookout duty and was under obligation of sounding a warning signal of the approach of the engine to that point. The only evidence on the subject of the user of the tracks by the public is the following taken from the testimony of appellant: "Q. How far were you from the pike, this R. L. Black and J. F. Vanarsdell, both of pike, where you were hit? A. It would not be Harrodsburg, for appellant. E. H. Gaither, of Harrodsburg, and Humphrey Crawford, of Louisville, for appellee. . You so very far from the pike, I reckon. know the pike is tolerably close to the railroad; that is about the edge of the pike. "Q. Did anybody holloa to you? A. Not as I heard; I never heard anybody. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sir. “Q. Anybody call anything to you? A. No, | gates for more than the prescriptive period, defendants as owners of servient estate are not entitled to obstruct the way with gates which would lessen plaintiff's use thereof, particularly where the gates were not placed at the termini but were on other portions of the way. "Q. The place where you were hurt is a place that is used by everybody that travels up and down there? (Objection; objection overruled.) A. I think so; yes, sir. "Q. At the point where you were hurt, I will ask you to tell the jury whether or not that place is commonly used by the public? A. I have seen many a one use. "Q. Is there a path on each side of the railroad there? A. Yes, sir. "Q. Have you seen people passing there at that place? A. Yes, sir. "Q. To what extent? A. I have seen a heap of them." Appeal from Circuit Court, Christian County. Suit by W. H. Sutton against W. C. Hunt and another. From a judgment for plaintiff, defendants appeal. Affirmed. Breathitt & Allensworth, of Hopkinsville, for appellants. Thomas P. Cook, of Hopkinsville, for appellee. SETTLE, J. This is an appeal from a judgment of the Christian circuit court whereby the appellants, W. C. and Alice M. Hunt, at the suit of the appellee, W. H. Sutton, were compelled by injunction to remove a gate from a passway running through their land and claimed as of right by the appellee, and perpetually restrained from erecting other gates across the same. [1, 2] No effort was made to show that the place of the injury was within the corporate limits of Harrodsburg nor that it was and is a thickly populated community. The evidence above quoted is wholly insufficient to establish a license on the part of the appellant to use the tracks at the place in question, and he was therefore a trespasser if the place of injury was not in the public street or sidewalk which lay along its margin. From part of the evidence of appellant it vaguely appears that he turned onto the railroad track very near the margin of the The appellee owns and resides upon a hunstreet, if not exactly at it; while other parts dred acre tract of land in Christian county of his evidence make it appear that he was near Kelley, a station of the railroad of the several feet from the street at the time he Louisville & Nashville Railroad Company and about a half mile from a turnpike runattempted to cross the railroad tracks. fact, he practically admits that he was not ning from Hopkinsville to Madisonville. on the public street or walkway of the street Kelley is appellee's nearest railway station, at the time of the injury, but was some feet likewise his voting place; and there is locattherefrom. Had he been on the street or on ed the church attended by himself and famthe sidewalk near the place where he was ily and also the district common school atTo reach Kelley, injured, the evidence would have entitled him tended by his children. to go to the jury; but as he was several feet Hopkinsville, the county seat of Christian from the street and at a place on the railroad county, or any other place to which appellee tracks where he had no right to be, and there- could go by any sort of conveyance from his fore a trespasser, the railroad company did home, his only way or route is by the passnot owe him the duty of maintaining a look-way over appellants' land in question to the out nor of sounding a whistle or bell, because his presence on the track at that point was not to be anticipated. In While the case is a close one upon the facts, we are of opinion that the trial court did not err to the prejudice of appellant in sustaining the motion of the railroad company for a directed verdict at the conclusion of the plaintiff's evidence. Judgment affirmed. HUNT et al. v. SUTTON. (Court of Appeals of Kentucky. June 1, 1920.) Easements 58 (3)-Owner of servient es tate not entitled to obstruct way with gates. Where plaintiff had a right of way over defendants' lands which had existed without Hopkinsville and Madisonville turnpike; thence over same to the desired destination. The land of appellants, consisting of 480 acres, adjoins that of appellee on the north and east and lies between it and the turnpike. The lands now owned by appellants and appellee were once parts of a large tract owned by one John Davis, who 40 or 50 years ago by proper deeds then executed conveyed portions thereof to certain of his sons. To one of the sons, J. Webber Davis, was conveyed the tract now belonging to appellants. To another, Tom Davis, the tract now belonging to appellee; the conveyance to Tom being the first made. By successive sales and mesne conveyances the titles to the lands in question passed to and became vested in the present owners, respectively. When the land now owned by appellee was conveyed Tom Davis by his father, John Davis, the latter gave him the passway leading from the land (222 S.W.) over and through the land then owned by him (John Davis), but later conveyed J. Webber Davis and not the property of appellants, to the Hopkinsville and Madisonville turnpike. No mention of the passway was made in the deed from John Davis to Tom Davis; but, though the grant thereof was by parol, it was undoubtedly made and the passway then defined and established substantially as it now runs and has since continuously existed. We by the statute of limitations to bar the right This view of the case throws on appellants the burden of showing by a preponderance of the evidence that such right of appellee to the passway as an easement has not deprived them, as owners of the servient estate, of the right to erect and maintain gates thereon. While the grant of a right of way, whether made by deed or arising by prescription from adverse user for the statutory period, does not necessarily imply that the owner of the land may not maintain gates thereon, in the absence of express reservation of such right, whether he should be permitted to exercise it must depend upon the intention of the parties as shown by the circumstances of the It is alleged in the petition that the passway furnished the only way of getting from and to the land and residence of appellee, and that he and his vendors immediate and remote have had the free and uninterrupted possession, use, and enjoyment thereof, as of right, adversely to appellants and all others for more than 15 years before the institution of the action and, in fact, from and since the date of the deed from John Davis to Tom Davis, which was executed more than 40 years ago; that at no time during such existence of the passway has there been any interference with appellee's or any of his vendors' use thereof, until shortly before the institution of this action, when the appel-case, the nature and situation of the proplants without right, maliciously, and with the object of obstructing appellee's use of the passway, erected a gate across the same which is unconnected with a fence on either side and can serve no purpose of effecting an inclosure of any field or other part of appellants' land. It is further alleged in the petition that the gate in question is so heavy of frame and the appliance for fastening it so difficult to move that appellee's little children in traveling the passway going to and from school will have neither the skill nor the strength to open it; and, in addition, that appellants were threatening to further obstruct the passway by the erection of other gates thereon, which threats they would certainly execute unless enjoined by the court from doing so. Although the averments of the petition are traversed by the answer, considered as a whole the real defense it attempts to interpose is as to appellants' alleged right to erect and maintain gates upon and across the passway in as great number and at such points as they may see proper to place them. Indeed, it is frankly admitted by their able counsel that appellee has established by the weight of the evidence a prescriptive right to the passway as claimed, but argued that such right in the latter is not inconsistent with that of appellants to erect gates across it for the convenient operation of their farm. Looking to the evidence, we find that it overwhelmingly establishes the right of appellee to the passway as an easement, and that such right has existed in him and his vendors for more than 40 years, not merely by reason of his and their adverse user of the passway for more than the period required erty subject to the easement, and the manner in which it has been used and occupied. An elaborate discussion of this doctrine, together with a review of the numerous authorities bearing thereon, may be found in the opinion in Raisor v. Lyons, 172 Ky. 314, 189 S. W. 234. In Miller v. Pettit, 127 Ky. 419, 105 S. W. 892, 32 Ky. Law Rep. 337, quoted in the opinion, supra, and the facts of which are much like those of the instant case, we said: "It has been held that the owner of the land may ordinarily erect gates where the passway enters and where it leaves his land. Maxwell v. McAtee, 9 B. Mon. 20, 48 Am. Dec. 409; Bland v. Smith, 23 Am. & Eng. Ency. of Law, 34. On the other hand, it has been held that, where the way is acquired by prescription and is used as a lane free from gates during the period necessary for perfecting the title, none can be erected afterward. Frankboner v. Corder, 127 Ind. 164, 26 N. E. 766; Shivers v. Shivers, 32 N. J. Eq. 578. The passway in question was established in 1843. It has been used since that time as far back as the witnesses can remember. Until recent years there was a fence on both sides of it and no gate except where the passway began at Miller's line. If the right to a passway may be acquired by prescription, we can see no reason why a passway free from gates may not be acquired in like manner; and where the passway is fenced off as a lane, and is used as such for 30 or 40 years, it must be presumed after such a great length of time, when the parties are all dead, that the persons using the passway were the owners of a right of way, as they held it and used it. On the facts shown, the court should have required the defendant to remove the gate at the pike from the passway, and to take the poles out of the branch. He should also adjudge the plaintiff $50 as reasonable compensation for the obstruc- 12. Trusts 72-Grantee in deed when trustee tion of her way." for another furnishing consideration under statute. Trusts 110-Deception as basis of trust must be established by clear and convincing evidence. Evidence of deception, authorizing the establishment of a trust in land, must be clear and convincing. 4. Appeal and error 1009 (4)—Finding of chancellor not disturbed unless against preponderance of evidence. The finding by a chancellor will not be disturbed on appeal, unless it is against the preponderance of the evidence. Under Ky. St. § 2353, it is only where venIf the appellants had only attempted to erect gates at the termini of the passway (i. dee takes a deed in his own name without the consent of the person paying the consideration, e., where it enters and leaves their land), we or where the grantee, in violation of some trust, might have here had a different question to purchases the lands with the effects of another deal with. But the points selected for erect-person, a trust results in favor of the person ing them are elsewhere than the termini and furnishing the consideration. at places where they would materially inter-3. fere with appellee's proper enjoyment of the passway. In Evans v. Cook, 111 S. W. 326, 33 Ky. Law Rep. 788, another case cited with approval in Raisor v. Lyons, supra, it was held that the appellant was properly convicted under an indictment for obstructing a passway, established as such by 15 years' adverse user, by erecting gates across same at points other than where it entered and left his premises. Testing its facts by the rule announced by the authorities, supra, the instant case docs not seem to be one authorizing the erection of the gates contemplated to be maintained across the passway by appellants. According to the evidence, the passway was established by John Davis when he deeded to his son Tom the land now owned by appellee without mention of the erection of gates thereon or reservation of the right to do so. In fact, the passway was then and for more than 15 years thereafter inclosed as a lane as far as the land was cleared, and yet remains largely so inclosed. It is true that more than 15 years after it was opened, for a year or so a gate was maintained at one place across the passway by J. Webber Davis while he owned appellants' land, but he obtained the consent of the then owner of appellee's land to erect it and soon removed it. When appellants purchased their land, the passway ran through it unobstructed by gates; and, when appellee purchased his land, it was with knowledge of the existence of the passway through appellants' land and with the right to enjoy its use as then conditioned. It is our conclusion that appellants have no right to obstruct the passway with gates as done and threatened. Wherefore the judgment is affirmed. ROCHE v. ROCHE. (Court of Appeals of Kentucky. May 28, 1920.) 1. Trusts 72-Grantee in deed trustee of party furnishing consideration at common law. At common law all that was necessary in order to convert a grantee in a deed into a trustee for another was to establish the fact that the latter furnished the consideration. 5. Trusts 110-Evidence of deception sufficient to establish trust in land. In an action by a widow against heirs of her husband to have established a trust in land deeded to the husband and paid for by the wife, evidence held to support a finding of the chancellor that plaintiff was deceived as to how the deed had been executed, and that husband was trustee for plaintiff. Appeal from Circuit Court, Kenton County. Action by Maria J. Roche against Malachi Roche. Judgment for plaintiff, and defendant appeals. Affirmed. John T. Murphy, of Covington, and R. J. THOMAS, J. On June 15, 1893, the appellee and plaintiff below, Maria J. Roche, and John Roche were married in Kenton county, Ky. At the time of their marriage the plaintiff was between 45 and 50 years of age, while her husband was perhaps a few years younger. Neither of them owned any property at the time, and the husband worked at different jobs in the neighborhood, sometimes on the farm, and sometimes at other employment as a common laborer. It is not shown that he ever accumulated anything, or owned any property, except perhaps a few articles of personal apparel. The undisputed proof shows that some time prior to 1906 the plaintiff inherited from her father, John Singleton, $2,050, and that a short while thereafter she inherited from her uncle $1,926.77. On March 31, 1906, the parties purchased a small farm in Kenton county, containing about 60 acres, from John W. Stephens. The agreement to purchase seems to have been effected through A. E. Foster, a real estate agent having the land in charge (222 S.W.) for the purpose of selling, and plaintiff's husband, John Roche. The deed was prepared so as to convey the land absolutely to the husband, but the evidence shows conclusively that the consideration was paid entirely by the wife, some of which was in cash at the time, and the last payment was the discharge of a mortgage lien debt on the land, which perhaps had been placed on it by Stephens. After the purchase of the farm the plaintiff and her husband resided upon it until the latter's death, which occurred near the end of the year 1917. The husband left no will, nor did he leave surviving him any descendents or any collateral heirs except the appellant and defendant, who is a brother. The answer consisted of a general denial of the averments of the petition, and upon submission the court sustained plaintiff's petition and granted her the relief prayed for, and to reverse that judgment the defendant prosecuted this appeal. Plaintiff testified that she had no knowledge as to how the deed was executed, but under the provisions of section 606 she was perhaps incompetent to give such testimony. The grantor, Stephens, attempts to say in his examination in chief that plaintiff did know to whom the deed was executed, but on cross-examination he contradicts himself, and he is also contradicted as to how and the person by whom the deed was prepared. All of the other witnesses present at the time, including the clerk who took the acknowledgment, state that the deed had been previously prepared with the name of the husband as grantee therein, but how this came to be done, or who prepared it, does not clearly appear. Other facts and circumstances are testified to going to establish the fact that the husband did not claim any interest in the property, but that the wife did, and that she did not know to whom the deed was executed. On March 8, 1918, plaintiff brought this suit against the brother (appellant, Malachi Roche), alleging that he was claiming to own the land by inheritance from her deceased husband; that the latter held title to the land as the trustee of plaintiff, because she furnished the consideration for its purchase, [1] It is earnestly insisted that the deand that the deed was taken to him without murrer filed to the petition should have been her knowledge or consent, and that under the sustained because it contains no allegation provisions of section 2353 of the Kentucky that it was executed through fraud or misStatutes a trust resulted in her favor, where- take, and the case of Fitzpatrick v. Roark, by her husband held the legal title as her 179 Ky. 504, 200 S. W. 920, and cases therein trustee, she being the beneficial owner. She referred to, are relied on in support of this prayed that the deed be so construed, and contention. We have carefully read those that the defendant be required to convey cases, and do not find them applicable to the the land to her, and upon his failure to do facts of this case. The general rule is that so that the court direct its master commis- a writing may not be reformed without alsioner to make such conveyance. legation and clear proof of fraud or mistake in its execution, but even this rule does not apply where a deed absolute on its face is sought to be converted into a mortgage. Vaughn v. Smith, 148 Ky. 531, 146 S. W. 1094; Leibel v. Tandy, 146 Ky. 101, 141 S. W. 1183; Stone v. Middleton, 144 Ky. 284, 137 S. W. 1047; Hobbs v. Rowland, 136 Kỵ. 197, 123 S. W. 1185; Eastern Gulf Oil Co. v. Lovelace, 188 Ky. 238, 221 S. W. 544. But the petition in this case does not seek to reform a deed for fraud or mistake. Its only purpose is to show that the nominal grantor was in fact only a trustee for the person who furnished the consideration for the deed. At common law all that was necessary in order to convert the grantee into a trustee for another was to establish the fact that the latter furnished the consideration. Neel v. Noland, 166 Ky. 455, 179 S. W. 430; May v. May, 161 Ky. 114, 170 S. W. 537; Foushee v. Foushee, 163 Ky. 524, 173 S. W. 1115. Section 2353, supra, changed this rule of the common law so as to prevent a resulting trust in favor of the one furnishing the consideration, except: (a) Where the vendee takes the deed "in his own name without the consent of the person paying the consideration"; or (b) "where the grantee, in violation of some trust, shall have purchased the lands deeded with the effects of another person." In addition to the above-recited facts, it also appears without contradiction that plaintiff paid all the taxes due on the land after the deed was obtained, and looked after, attended to, and paid for all improvements thereon, as well as purchased all of the farming tools and stock necessary to run the farm. She was industrious and energetic, and sold vegetables, butter, eggs, and other products from the farm, and seems to have been the moving spirit in its operation. On numerous occasions the husband stated to neighbors and others not related to plaintiff that he had no interest in the farm, or anything upon it; that his wife had paid for all of it, that she owned it, and in substance that he had nothing to do with it. In his last illness he was confined to his bed some days, and he was very much concerned about the execution of a will; but no one was present who could write it, and his neighbors who were in attendance upon him, at the request of his wife, did not encourage him in the desire, because she stated at the time that it made no difference, since everything belonged to her anyway. [2-5] This court, as will be seen from the cases, supra, and others referred to in them, |