Wiliam Gray, who testifies that he was to receive his choice of five hundred acres out of the survey supposed to contain five hundred and fifty acres. It is fully made to appear that, after his wife received her deed, they took actual possession of the land and have occupied and held it ever since; while appellant and his vendor have never been in the actual possession of any of it, and now claim only through their deeds. Under the deeds from their re mote vendor, Bennett, they each had constructive possession of the land covered by the deeds. The Grays have fortified their position by adding to their constructive possession an actual occupancy for more than forty years. And while the outside boundaries of the land claimed to be covered by their deed are not very well defined, they were laying claim to it under their deed, and, in our opinion, in adjudging the title thereto good, the chancellor reached the right conclusion. Judgment affirmed. Conley, et al. v. Fairchild. (Decided February 14, 1911.) Appeal from Magoffin Circuit Court. ་ Lands-Passways-Belonging to Land Passes With it Unless Reserved. A right or appurtenance belonging to land passes with the land unless expressly reserved, and the fact that one has another outlet can not militate against his right to use the one that was established and in use at the time he became the owner of the land. MCGUIRE & MCGUIRE, R. H. COOPER and J. H. SUBLETT for appellants. JOHN H. GARDNER for appellee. OPINION OF THE COURT BY JUDGE LASSING-Affirming. This appeal involves the right of appellee to a passway over the lands of appellant. Appellant's father was the owner of a large body of land in Magoffin county, Kentucky, and, some time prior to 1883, sold off a small tract to one Ezekiel Gullet. In 1883 he sold, by title bond, another tract to John Fairchild, father of appellee, and. still another tract to appellee in the same year. Appellee purchased of his father the lands for which he held a title bond from appellant's father, and, in April, 1884, received a deed for the land which he and his father had purchased from Louis P. Conley, the father of appellant. At the same time that the deed was executed, the following writing was executed by Louis P. Conley and his wife, and delivered to John Fairchild: "For a good and valuable consideration, to-wit: Ten dollars, in price of land this day conveyed to Samuel W. Fairchild, I hereby agree and bind myself to give said Fairchild a passway over my lands that is a good way for a wagon road leading from the land this day conveyed to said Fairchild by me and my wife to Licking river, that is so long as I remain the owner of said land said way to be open to said Fairchild at his pleasure and without stop of hindrance on my part. "Witness my hand this 19th of April, 1884. "L. P. CONLEY, The passway described in the pleadings was used without objection until the death of Louis P. Conley, when appellant, having become the owner of a portion of the land over which the passway run, attempted to close it. The effort brought on a law suit, of which this appeal is the offspring. The evidence shows that Gullet had no other passway from his purchase to the public road except over the lands of appellant's father, and that he used the passway in dispute, along with appellee, as long as he owned the land. Appellee bought Gullet's land, and relies upon and claims said passway as an appurtenance to the Gullet land; and he also pleads, that when he contracted for his own land in 1883, there was no other passway from it to the public road except over the land of appellant's father, and that this sale to him carried with it a right to go to and from it to the public road. The chancellor held in favor of appellee, and adjudged him entitled to the passway. We are of opinion that this judgment was right, for the twofold reason, first, because the evidence shows that, before the deed was made to appellee, he had moved upon his purchase and was using the passway in question-not under any written contract, but under his agreement of purchase; that it belonged to him as an outlet to his land; and sec ond, because it passed with the Gullet land to the appellee. It will not do to say that a right or appurtenance which belonged to Gullet's land did not pass with its conveyance because not especially set out or named in the conveyance. The true rule would seem to be that it did pass unless expressly reserved. Appellee knew that the passway belonged to the Gullet land and was for its use, and the knowledge of its existence may have induced him to buy it, or pay more for it than he would otherwise have been willing to pay. The fact that appellee had another outlet or outlets can not militate against his right to this one, and we have not considered the evidence as to the availability or suitability of other outlets. The decided weight of the evidence supports appellee's contention that the writing relied upon by appellant was not executed to him, or at his request, but to his father, without his knowledge. On the whole case, considering the fact that appellant's father owned all of this land, to which there was no good outlet, if any at all, and that, before the execution of the writing relied upon by appellant, the appellee and his vendor, Gullet, were using this passway to their land as a matter of right, we are of opinion that the writing which was executed under the circumstances set out in the evidence, can not in any way abridge the rights of appellee to the use of said passway. Judgment affirmed. Louisville & Nashville R. R. Co. v. Irby, By, et al. Appeal from Oldham Circuit Court. MODIFICATION OF OPINION BY JUDGE NUNN. Appellant filed a petition for a modification of the opinion in this case and insists that the court misconstrued the testimony as to whose duty it was to give the signal for the separation of the cars at the time Irby was injured. Conceding this to be true, which we do not decide, the case is not to be tried upon the testimony of the last trial, but is to be governed by the testimony on the future trial, and if there should be a conflict on this point, then the court should also submit that issue to the jury. The opinion is modified to this extent, and the petition for modification is overruled as to other matters. Walton Brick Co. v. Anderson Foundry & Machine Works. (Decided February 15, 1911.) Appeal from Boone Circuit Court. Issue Out of Chancery Purely Legal-Finding of Jury-Conclusiveness.--Plaintiff sold certain machinery to defendant, accompanied by written guaranty. In an action to enforce a materialman's and mechanic's lien, the defendant pleaded failure of terms of guaranty. Certain issues which were purely legal were on motion of defendant submitted to a jury. On these issues the jury found adversely to the defendant. Held, that the finding of the jury was conclusive unless flagrantly against the evidence, and this not appearing the judgment of the chancellor entered in conformity to the verdict will not be disturbed on appeal. J. G. TOMLIN and JOHN L. VEST for appellant. HARRY BRENT MACKOY and MACKOY and MACKOY for appellees. OPINION OF THE COURT BY WM. ROGERS CLAY, COMMISSIONER-Affirming. Appellee. Anderson Foundry & Machine Works, ou February 24th, 1908, sold to appellant, Walton Brick Company, certain machinery for making brick. For this machinery the Walton Brick Company agreed to pay $4,063.50. Of this sum $2,133.50 was to be paid upon the arrival of the machinery at Walton, Kentucky, and the balance when said machinery was in proper working order and making at the rate of 2,000 perfectly formed brick per hour. The machinery arrived at Walton in March, 1908. Thereupon appellant paid to appellee $2,031.75. On June 29, 1908, after the machinery had been installed and had been making brick for several weeks, it paid the additional sum of $1,000. The balance, 1,031.75, was not paid, and appellee brought this action against appellant for the purpose of enforcing a mechanic and materialman's lien. During the trial it was admitted that appellant, at the request of appellee, had furnished certain small articles of the value of $68.20. Upon final submission of the case, the chancellor gave judgment in favor of appellee for the sum of $1.031.75, subject to a credit of $68.20, and also adjudged appellee a lien upon certain real property, ma chinery, etc., constituting the brick manufacturing plant owned by appellant. From that judgment this appeal is prosecuted. Briefly stated, the facts are as follows: About ten days before the contract of purchase was entered into, appellee submitted to appellant a proposition, in writing, by which it agreed to furnish certain machinery designated therein. This proposition contained certain guaranties. Those that are material to this case are as follows: "Our proposition also contemplates that in event you favor us with order that we will send a competent engineer to your plant free of cost to yourself, who will make a lay-out for your buildings, show you what changes are necessary in order to install the above named machinery, and he will then make a detailed drawing and furnish you with blue prints so that any carpenter or millwright can install the machinery such as we would send you, and when you are ready to operate same we will also agree to furnish you a first-class man both as an engineer and as a brickmaker for the starting up of your plant to see that the machinery fulfills the guarantee that we will give with same, however, the expense of the man sent will be $5 per day and his car fare to and from Anderson, and wish to state you can use him as few or as many as you desire. "Our guarantee contemplates that if for any reason the machinery furnished should not do what we claim for it, all we ask will be the return of same to cars and we will refund any and all money that had been paid upon same. "The terms of the sale would be one-half cash when all the machinery has arrived upon car in your city, balance after machinery is started and guarantee fulfilled in accordance with contract that we would enter into. "Also wish to state that we will guarantee your material to make brick equal to the samples that we have submitted made from the same material, provided, of course, that it is burned in a manner and with the equipment necessary for burning dry press brick. What we wish to convey is, that we guarantee that your clay properly burned will make brick similar to the samples that we have submitted, referring to the same clay that you shipped us for making up the samples." The contract of sale was on one of the ordinary forms employed by appellee. Appellant being in doubt as to |