was changed, and that as a direct and proxi-, mate result of the said embankment and the throwing of said material into the river the lands of the plaintiff have been washed and damaged and his fencing injured or destroyed, you will find for the plaintiff, and fix his damages at such a sum as you may believe from the evidence will fairly and reasonably compensate him for his damages by reason thereof to this date, not to exceed the difference in value, if any, between the market value of the said farm immediately before the construction of the said embankment and the throwing of said material into the river and its market value as of this date, provided you believe from the evidence the depreciation in value, if any, has been caused by the building of the said embankment and the throwing of said material into the river and the changing of the current of said river. In no event can your finding exceed the sum of $2,000, the amount claimed in the petition." It will be seen that the court's instruction confined appellee's recovery to the damages he had received to the time of the trial, there by treating the damage as a temporary damage, or as one that could be reasonably remedied, and consequently permitting the landowner to recover for future damages. The rule has become well settled in this jurisdiction that where the injury or nuisance complained of is only temporary in its nature and can be remedied or removed at a reasonable cost, the damage, if any, which the plaintiff is entitled to recover is what he has sustained in being deprived of the use and occupation of his land, and successive actions for recurring damages may be brought. Where, however, the structure complained of is a permanent structure, not negligently built, and intended for permanent use, and cannot be removed or remedied without great expense, the recovery in damages to which the plaintiff is entitled, if any, is the diminution of the market value of his land; and to recover that damage the plaintiff can bring only one action, in which he must recover all the damages to which he is or may be entitled, either past, present, or future. C. & O. Ry. Co. v. Stein, 142 Ky. 515, 134 S. W. 1169; L., H. & St. L. Ry. Co. v. Roberts, 144 Ky. 822, 139 S. W. 1073; M. H. & E. R. R. Co. v. Graham, 147 Ky. 606, 144 S. W. 737; M., H. & E. R. R. Co. v. Thomas, 148 Ky. 131, 146 S. W. 43; C. & O. Ry. Co. v. Robbins, 154 Ky. 387, 157 S. W. 903; Shrout v. C. & O. Ry. Co., 157 Ky. 1, 162 S. W. 97. In the Graham Case, supra, we said: "There are cases where the trouble cannot be remedied at a reasonable expense; that is, where the cost of remedying it would be so great as to justify the railroad company in condemning the property and taking it under the power of eminent domain. In this character of cases there should be a recovery once for all. In building a railroad, the company may do its work so as to deflect a stream from its course, and this may be necessary in the construction of the road. So it has been held that if the trouble may be remedied at a reasonable expense, it may be regarded as temporary; but if the trouble cannot be so remedied, it should be regarded as permanent; and this is a question for the jury. L. & N. R. R. Co. v. Whitsell, 125 Ky. 433 [101 S. W. 433, 31 Ky. Law Rep. 76]; I. C. R. R. Co. v. Haynes, 122S. W. 211: L., H. & St. L. Ry. Co. v. Roberts, 144 Ky. 820 [139 S. W. 1073]." The case at bar comes within the rule announced. The uncontradicted proof shows that it not only will be impossible to remedy the trouble at a reasonable expense, but that the rocks which caused the trouble are necessary to the support of the roadbed. This is therefore a case of permanent injury, in which there should be a recovery once for all. [2] It will be noticed that while the circuit judge gave the proper measure of recovery for permanent injuries, he nevertheless restricted the plaintiff's recovery to his damages to the date of trial, thereby permitting him to hereafter recover future damages, if there should be any. In this the trial judge clearly was in error. And, although in determining whether the cause of the damage is permanent or temporary in its nature, it is usually within the province of the jury to determine that question and say whether the trouble can be remedied at a reasonable expense, nevertheless when the uncontradicted evidence shows that the cause is permanent and not temporary, it should be treated as a fact established, and the law given accordingly. In C. & O. Ry. Co. v. Stein, 142 Ky. 520, 134 S. W. 1169, we said: "The pleading is full enough to and does embrace every character of injury that the appelsion on the part of the company. It often haplee sustained by acts of omission and commispens in cases like this that it is difficult to determine with reasonable certainty whether the acts complained of are permanent or temporary in their nature, and when there is doubt upon this question we have adopted the rule of leaving it to the parties to the litigation to determine by the character of suit they bring and the proceedings thereunder whether or not the thing complained of shall be treated as permanent or temporary. In other words, where the nature of the improvement is in doubt, and the parties treat it as permanent, we will not interfere with their conclusion, and so, if they treat it as temporary. City of Madisonville v. Hardman, [92 S. W. 930], 29 Ky. Law Rep. 253; Board of Park Com. v. Donahue, 140 Ky. 502 [131 S. W. 2851; Louisville & Nashville R. R. Co. Ky. Law Rep. 76]." v. Whitsell, 125 Ky. 433 [101 S. W. 433, 31 Such is the case here. It is claimed by the appellant, however, and is conceded by Blanton, that the cause of the damage is permanent, and cannot be remedied at a reasonable expense; and, that being true, it was the duty of the circuit judge peremptorily to so rule, and instruct the jury to make its finding of damages, if any, once for all. The measure of damages prescribed in the instruction given properly presented that question; but the clause of the instruction which restricted the plaintiff to a recovery of damages to the time of the trial, and consequently permitted him to have recurrent suits for future damages, was clearly erroneous, and prejudicial to appellant. Judgment reversed. VAN METER v. VAN METER. (Court of Appeals of Kentucky. Oct. 8, 1914.) PARTITION (§ 12*) - SALE OF PROPERTY "JOINT OWNERS." sale of property owned as this property is? It will be observed that section 490 provides that: "A vested estate in real property jointly owned by two or more persons may be sold by order of a court of equity, in an action brought Civ. Code Prac. § 490, provides that a by either of them. * * if the estate be vested estate in real property, jointly owned in possession and the property cannot be divid by two or more persons, may be sold by ordered without materially impairing its value, or of a court of equity, though one of them is an the value of the plaintiff's interest therein." infant, if the estate be in possession and the property cannot be divided without impairing its value or the value of plaintiff's interest therein. Held that, where an infant owned in fee a two third's undivided interest and the remainder in the other third of a residence and lot on which it was situated, in which defendant owned a one third undivided life interest set apart to her as dower, they were not joint owners within the statute, and the court had no jurisdiction to order a sale for division at the instance of the infant. [Ed. Note. For other cases, see Partition, Appeal from Circuit Court, Fayette County. Action by Fields Van Meter against Fannie S. Van Meter, for a sale of certain real property. From a judgment in favor of defendant. Plaintiff appeals. Affirmed. Allen & Duncan, of Lexington, and B. R. Jouett and H. H. Moore, both of Winchester, for appellant. George C. Webb, of Lexington, for appellee. It may be conceded that this estate is in the possession of the parties, and it is of course admitted that it cannot be divided; but this is not sufficient to authorize a sale under this section. The property sought to be sold must not only be a vested, indivisible estate but must be jointly owned and in possession. We think the precise question here presented was decided in Fullenwider v. Johnson, 145 Ky. 19, 139 S. W. 1096. In that case the suit was brought by the widow, who owned a dower interest in indivisible property, against her son and only child, for the purpose of having it sold for a distribution of the proceeds between them as the court might direct; and it was held that the court had no jurisdiction to order a sale under section 490, because the conditions necessary to confer jurisdiction were lacking. The court said: "The fact that the estate of the parties is a vested estate, or that they are in possession, will not be sufficient to confer jurisdiction, unless it also appears that the estate is jointly owned. It may be conceded that the widow and the infant each owned a vested estate, and that both were in possession, the widow of her dower interest and the infant of the remainder of the estate, but the question remains: Was it jointly owned in the meaning of the Code? The CARROLL, J. The appellant, Fields Van Meter, an infant, owns the fee in a twothirds undivided interest and the remainder in the other one-third of a residence and lot upon which it is situated, in which the appellee, Fannie S. Van Meter, owns a one-infant owned the fee, subject to the life estate third undivided life interest set apart to her as dower in this property, which is worth probably $12,000. The appellant, by his guardian, brought this suit in the Fayette circuit court against the appellee, asking for a sale of the property, and that the proceeds be divided by allotting to appellee the present value of her dower interest there in and to appellant the remainder. The suit was brought under section 490 of the Civil Code, reading: "A vested estate in real property jointly owned by two or more persons may be sold by order of a court of equity, in an action brought by either of them, though the plaintiff or defendant be of unsound mind or an infant-if the share of each owner be worth less than one-hundred dollars-or if the estate be in possession and the property cannot be divided without materially impairing its value, or the value of the plaintiff's interest therein." The appellee resisted a sale upon the ground that it was not authorized by section 490, and the court, adopting this view, dismissed the petition of the plaintiff, and this appeal has been prosecuted from the judgment of dismissal. There is only one question for decision, and that is: Does section 490 authorize a or dower interest of the widow in one-third, or, in an undivided one-third. In our opinion this in other words, the widow owned a life interest did not constitute a joint ownership, in the proper meaning of the Code." And in support of this construction the court cited the cases of Liederkranz Society v. Beck, 8 Bush, 597, and Lee v. James, 81 Ky. 446. We do not think the circumstance that in the Fullenwider Case the suit was brought by the widow, who owned an undivided onethird for life, against the owner of the remainer of the estate, while in this case the suit is brought by the owner of the fee in two-thirds and a remainder in one-third against the owner of the other interest, changes the status so that jurisdiction would attach in this case, although denied in the Fullenwider Case. Under section 490, if either of the joint owners can bring suit, any of them can bring it, and unless any of them can bring it, no one of them can bring it. So that it is not material which one of the parties brings the suit, for, if it could not be brought by the other party, the one bringing it could not maintain the action. It is contended, however, that the rule laid *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexe down in Fullenwider v. Johnson, and the cases that it followed, has been departed from in Jenkins v. McVaw, 145 Ky. 205, 140 S. W. 150, Hatterich v. Bruce, 151 Ky. 12, 151 S. W. 31. Stovall v. Oates, 153 Ky. 81, 154 S. W. 914, and Eldridge v. Embry, 158 Ky. 707, 166| S. W. 223, and furthermore that it conflicts with Atherton v. Warren, 120 Ky. 151, 85 S. W. 1100, 27 Ky. Law Rep. 632, and Wormald v. Heinze, 90 S. W. 1064, 28 Ky. Law Rep. 1022. We do not think so. In no one of these cases was the property sought to be sold owned in the same manner as it was owned in the Fullenwider Case or in this case. In the McVaw Case the property was owned in equal shares by three children, subject to the dower interest of their mother, Alice B. Miller, and their grandmother, Isabella Mill er. The children owned jointly a vested estate in possession in the property, which was indivisible, and in the suit by their mother, Alice B. Miller, to have it sold, under subsection 2 of section 490, for a division of the proceeds between her and her infant children, to which suit the infants, by their guardian, filed an answer joining in the prayer for a sale, this court held that the lower court had jurisdiction to order a sale of the property. In the Hatterich Case the property ordered to be sold was owned in fee by four infant children, subject to the dower right of their mother. In a suit brought by the mother, as guardian of the infant children and in her own right, under section 490, to obtain a decree for the sale of the indivisible property and a division of the proceeds, it was held that the court had jurisdiction to order the sale. In the Stovall Case the indivisible property sought to be sold under section 490 was owned by six children, subject to the dower interest of their mother. In a suit by the widow and some of the children against the others for a sale and distribution of the proceeds, under subsection 2 of section 490, it was ruled that the court had jurisdiction to make the sale. We might further add that in Atherton v. Warren, 120 Ky. 151, 85 S. W. 1100, 27 Ky. Law Rep. 632, and Wormald v. Heinze, 90 S. W. 1064, 28 Ky. Law Rep. 1022, the ownership and holding was similar to that in the Hatterich Case. In the Atherton Case there were several children, who owned jointly a vested estate in possession in the property: There were also other persons who owned life interests in the property, and it was held that the court had jurisdiction to order a sale under section 490. In the Wormald Case the property was vested, indivisible, and jointly owned by Lizzie Heinze and Ruth Wormald, subject to the curtesy right of Charles Wormald in an undivided one-fourth, and it was held that the court had jurisdiction to make the sale under section 490. It is therefore 169 S.W.-38 manifest that there is no conflict between these cases and the Fullenwider Case. In the Eldridge Case the property sought to be sold under section 490 was owned by the widow, who had a fee in one-fourth of the land and a life estate in one-third of the other three-fourths; the remainder being owned jointly and equally by seven children. In each of these cases one of the parties owned a life interest, but there were also two or more other parties who owned jointly a vested estate in possession. So that, if we should leave out of view the holding of the life tenants in each of these cases, there would remain two or more joint owners whose title and ownership fulfill every requirement of section 490. These cases merely hold that, where two or more persons own jointly a vested estate in possession in indivisible property, it may be sold on the petition of either of them, although some other person may own a life interest in part of it. Or, to state the rule announced in these cases in another way, if A. and B. are the joint owners of a vested, indivisible estate in possession, it may be sold on the petition of either of them, under section 490, although C. may own a life interest in part of it. As the right to have the sale under the conditions indicated is expressly authorized by section 490, this right is not to be defeated by the mere circumstances that there may be some other interests in the property. There is no conflict between these cases and the Fullenwider Case, because in these cases there was a joint ownership in the children, independent of the interest in the widow, while in the Fullenwider Case, as well as in this case, no such joint ownership exists between two or more persons, as the whole estate is owned by the widow and one child. This distinction is recognized and aptly stated in Grider on Sales of Real Estate of Infants and Other Persons under Disability, where it is said, on page 94, that: "A dower right of itself is not such an estate to sue for a sale of the property and a division as would authorize the widow as a joint owner of the proceeds; but where the widow holds unassigned dower, and is the statutory guardian or two or more of her children who own the fee, she may, as any other guardian, petition for a sale of the property and a division of the proceeds between the children; she accepting the value of her dower interest in money. The joint holding, necessary to give the court jurisdiction under this section, is not between the widow and the children, but between the several children themselves. Where the widow holds ject to her dower, rests in her only child, she unassigned dower in property, and the fee, subcould not, either as doweress or as statutory guardian for her child, have the property sold under this subsection, nor could any other person acting as guardian do so, for there is no joint holding between the doweress and the fee holder; the child being the owner of the entire estate incumbered by the dower interest." The facts of this case present strong reasons why a sale should be ordered, and we would do so if the power existed. But we have written time and again that the author ity to direct sales in cases like this must be found in the Code, and, if it cannot be there found, relief must be denied. We think, however, that it would be well for the legislative department of the state to make some provision for the sale in all cases of indivisible property in which a dower right existed. Being of the opinion that the judgment of the lower court was correct, it is affirmed; the whole court sitting. YENAWINE v. TYCRETE-CONCRETE (Court of Appeals of Kentucky. Oct. 9, 1914.) -RESCISSION-FRAUD. In a suit to rescind a purchase of the corporate stock of defendant, evidence held insufficient to show that plaintiff, the purchaser, was a victim of fraud. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 14072; Dec. Dig. § 80.*] Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division. Action by John W. Yena wine against the Tycrete-Concrete Products Company and another. From a judgment for defendants, plaintiff appeals. Affirmed. See, also, 156 Ky. 747, 161 S. W. 1127. R. C. Kinkead and H. H. Nettelroth, both of Louisville, for appellant. Burnett, Batson & Cary, of Louisville, for appellees. introduced to Moody by one Vaughn. Moody for the stock had it not been for the statements In his made by Mr. Moody, who told him that they CLAY, C. This is a suit by plaintiff, John W. Yenawine, against defendants, TycreteConcrete Products Company and its president, Claude D. Moody, to rescind a sale of stock which he had purchased from the com-vestigated the assets of the concern, and pany, and to recover the amount of the purchase price on the ground that he was induced to purchase the stock by fraudulent was A recovery representations. denied by the chancellor, and plaintiff appeals. The petition charges that Moody made the following misrepresentation of facts: (1) The business and affairs of the company were in a sound and prosperous condition; (2) the company then had on hand contracts which would yield large profits to the company; (3) the capital stock of the company was of the value of at least $100 a share. Moody admits having investigated the concrete business, and having great confidence It appears that Moody had been making a study of the concrete business, and to this in the company's making handsome profits. end had visited several plants in different Mr. Wightman had been highly recommendparts of the country. In the spring of 1911 ed to him, and he had every confidence in he organized the Tycrete-Concrete Products him. He afterwards ascertained that WightCompany with an authorized capital stock man was inefficient and neglected the busiHad the business been properly run, of $35,000. Fifteen thousand dollars worth ness. So far as he of stock was subscribed, and the money paid it would have been a success. in. The corporation then proceeded to buy a knew, the statement which he furnished He had it prepared by lot and erect buildings and machinery for the plaintiff was true. purpose of making tile blocks, monuments, an expert accountant. He made no repreburial caskets, etc. Moody himself had sub- sentations to plaintiff as to the value of the scribed for $8,000 worth of stock. stock, but he believed that any deficit could be made up by future profits, if the busi According to Yenawine's testimony, he was *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes ness was properly handled. He also stated er management. He knew that it had done that he did have certain contracts which and was doing very little business; that its were very valuable, and that these contracts stock was not worth par at the time he subwere more than sufficient to offset the def- scribed for it; and that, unless it sold its icit shown by the statement which he fur- treasury stock and secured and handled a nished plaintiff. At the same time he ex- large amount of business at a profit, the explained to plaintiff that the buildings and penses of conducting the concern would soon machinery had probably cost more than they eat up its assets. After talking with Moody, should have cost, but that even these items he had faith in the ultimate success of the could be offset if they could sell their treas- concern. Not only he, but other stockholders ury stock and conduct the business as it who had theretofore invested considerable should be conducted. He not only had every money, placed more money in the concern. confidence in the undertaking, but had in- Had the treasury stock been sold and the vested $8,000 of his own money prior to his concern properly conducted, we doubt not meeting plaintiff, and had subsequently in- that it would have been a sucess. The fact vested $2,000 more. Along in April the busi- that the new concern, which took over its ness was sold because it could not be con- assets, is now making a profit tends to esducted at a profit, under its then manage- tablish this fact. He lost his money, and so ment. The purchasers agreed to pay the did Moody and the other stockholders. Updebts of the concern. After the business was on a consideration of the whole record, we sold, the new concern conducted it at a profit. fail to see any substantial reason for holdOther witnesses testified to the incompetency ing that the conditions under which he purof Wightman, and to the fact that he neg- chased his stock differed in any material lected the business of the concern. Other respect from those under which the other witnesses corroborated Moody in his state- stockholders made their purchases. It is ment that he advised plaintiff that more simply a case of a venture in which they all money had been spent on buildings and had faith, and which turned out to be unsucmachinery than was necessary. It also apcessful. pears that plaintiff himself was present on January 18th at a meeting of the board of directors, when the fact of the excessive cost of the buildings was discussed and fully considered. The chief complaint of the statement furnished by Moody to plaintiff is that it was false because it failed to show the real values of the buildings and machinery. Inasmuch, however, as the buildings had been but recently erected, and the machinery installed, and in view of the further fact that it is not customary for business concerns to charge off anything for depreciation so soon after the erection or installation of the machinery, the fact that the statement shows book values instead of real values cannot be regarded as a fraudulent representation. Furthermore, the weight of the evidence tends to show that plaintiff himself was informed of the fact that the buildings and machinery were not worth as much as the statement showed. As the record is voluminous, we deem it unnecessary to set out the evidence at length. In our opinion, the evidence on all disputed questions of fact fully sustains the finding of the chancellor. Reduced to its final analysis, the case is simply this: Plaintiff was a business man of experience, and, after visiting the plant and hearing Moody talk, he caught some of Moody's enthusiasm and desire to become a stockholder. He had ev ery opportunity to investigate the plant, and was not deceived as to any past or present conditions. He knew that the plant was in its infancy, and its success would depend on its selling its treasury stock and on its prop Judgment affirmed. COLEMAN v. COMMONWEALTH. (Court of Appeals of Kentucky. Oct. 6, 1914.) 1. CRIMINAL LAW (§ 1206*)-INDETERMINATE SENTENCES-STATUTORY PROVISIONS. The Indeterminate Sentence Law of 1910 (Acts 1910, c. 4) provided that, when the jury should find a defendant guilty, the court should pronounce an indeterminate sentence, stating the minimum and maximum limits thereof, and fixing as the minimum time the term prescribed by law as the minimum term of imprisonment for the offense stated in the verdict, and as the maximum time the term prescribed by law as the maximum term of imprisonment for such offense. Acts 1914, c. 19, provide that, if the jury, find a defendant guilty, they shall render an indeterminate sentence or judgment of imprisonment for an indefinite term, stating the minimum and maximum limits, but that the minimum time shall not be less than the minimum time nor the maximum greater than the maximum time prescribed by law for the punishment of the offense stated in the verdict. Held that, under the act of 1910, the judge pronounced the sentence and was obliged, where the statute fixed a minimum and maximum punishment, to sentence accused for a term not less than the minimum term nor greater than the maximum term fixed by statute, while under the act of 1914 the jury fixes the punishment and may fix the minimum sentence at any period not less than the minimum nor greater than the maximum time prescribed by law. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.*] 2. CRIMINAL LAW (§ 1206*)-EXTENT OF PUNRETROACTIVE EFFECT OF STAT ISHMENT UTES. Under Ky. St. § 465, providing that, if any vision of a new law, such provision may, by the penalty or punishment be mitigated by any proconsent of the party affected, be applied to any •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |