statement of the general rule in Kentucky

1977The case of Aronson v. Gibbs-Inman, 283 Ky. 107 , 140 S.W.2d 806 (1940) sets out the law in Kentucky as follows: A statement of the general rule is found in Straus v. Kazemekas, 100 Conn. 581 , 124 A. 234 , 238: “Where from the nature of the contract and the surrounding circumstances the parties from the beginning must have known that it could not be fulfilled unless when the time for fulfillment arrived, some particular thing or condition of things . . . exist(s) so that they must be deemed, when entering into the contract to have contemplated such . . . existence as the foundation of what wa

1977The case of Aronson v. Gibbs-Inman, 283 Ky. 107 , 140 S.W.2d 806 (1940) sets out the law in Kentucky as follows: A statement of the general rule is found in Straus v. Kazemekas, 100 Conn. 581 , 124 A. 234 , 238: “Where from the nature of the contract and the surrounding circumstances the parties from the beginning must have known that it could not be fulfilled unless when the time for fulfillment arrived, some particular thing or condition of things . . . exist(s) so that they must be deemed, when entering into the contract to have contemplated such . . . existence as the foundation of what wa

1977The case of Aronson v. Gibbs-Inman, 283 Ky. 107 , 140 S.W.2d 806 (1940) sets out the law in Kentucky as follows: A statement of the general rule is found in Straus v. Kazemekas, 100 Conn. 581 , 124 A. 234 , 238: “Where from the nature of the contract and the surrounding circumstances the parties from the beginning must have known that it could not be fulfilled unless when the time for fulfillment arrived, some particular thing or condition of things . . . exist(s) so that they must be deemed, when entering into the contract to have contemplated such . . . existence as the foundation of what wa

1977The case of Aronson v. Gibbs-Inman, 283 Ky. 107 , 140 S.W.2d 806 (1940) sets out the law in Kentucky as follows: A statement of the general rule is found in Straus v. Kazemekas, 100 Conn. 581 , 124 A. 234 , 238: “Where from the nature of the contract and the surrounding circumstances the parties from the beginning must have known that it could not be fulfilled unless when the time for fulfillment arrived, some particular thing or condition of things . . . exist(s) so that they must be deemed, when entering into the contract to have contemplated such . . . existence as the foundation of what wa

1971The rule applicable to the situation presently before us is set out in Curry v. Farmers Livestock Market, Ky., 343 S.W.2d 134, p. 138 , wherein it is stated: "It has been held that the purchaser of property affected by an existing nuisance is not estopped to complain of it, though the circumstance may be considered as a factor in determining the equities of the case." For a statement of the general rule in this respect see Prosser on Torts, 3rd ed., p. 636.

1971The rule applicable to the situation presently before us is set out in Curry v. Farmers Livestock Market, Ky., 343 S.W.2d 134, p. 138 , wherein it is stated: “It has been held that the purchaser of property affected by an existing nuisance is not estopped to complain of it, though the circumstance may be considered as a factor in determining the equities of the case.” For a statement of the general rule in this respect see Prosser on Torts, 3rd ed., p. 636.

1949But the rule is the same whether the defendant be a municipality or a private citizen as was pointed out in City of Bowling Green v. Stevens, supra, [ 205 Ky. 161 , 265 S.W. 495 ], wherein following the statement of the general rule, the Court said “The rule has been applied in favor of a municipal corporation, * V’ Reviewing and reconciling all of the decisions referred to by both parties we find without exception that the rule applicable to this case is: The owner of the dominant estate may drain and ditch his land for the purpose of ridding it of surface water even to the extent of building

1949But the rule is the same whether the defendant be a municipality or a private citizen as was pointed out in City of Bowling Green v. Stevens, supra, [ 205 Ky. 161 , 265 S.W. 495 ], wherein following the statement of the general rule, the Court said “The rule has been applied in favor of a municipal corporation, * V’ Reviewing and reconciling all of the decisions referred to by both parties we find without exception that the rule applicable to this case is: The owner of the dominant estate may drain and ditch his land for the purpose of ridding it of surface water even to the extent of building

1918The Commonwealth did not offer to prove, and does not now claim, that the record evidence of such fact, if a fact, was not obtainable, but stood upon its right to prove the alleged incorporation by parol evidence and as authority for that practice relies upon Morse v. Commonwealth, 129 Ky. 294 ; Swan v. Commonwealth, 169 Ky. 565 ; Dillon on Municipal Corporations, vol. 1, sec. 232; and Londonderry v. Andover, 28 Vt. 424 ; The citation from Dillon is not applicable here, because the practice there authorized is based upon the absence of record evidence and is but a statement of the general rule

1918The Commonwealth did not offer to prove, and does not now claim, that the record evidence of such fact, if a fact, was not obtainable, but stood upon its right to prove the alleged incorporation by parol evidence and as authority for that practice relies upon Morse v. Commonwealth, 129 Ky. 294 ; Swan v. Commonwealth, 169 Ky. 565 ; Dillon on Municipal Corporations, vol. 1, sec. 232; and Londonderry v. Andover, 28 Vt. 424 ; The citation from Dillon is not applicable here, because the practice there authorized is based upon the absence of record evidence and is but a statement of the general rule