trial and appellant withdrew his plea of not guilty and entered a plea of guilty in each case and was fined $60.00 in each one.

The witness did not know what was in the bottles on the shelves. After appellant was fined in both cases for selling the witness the whisky, the witness again went before the grand jury and told about buying the whisky and the grand jury found the present indictment against appellant for having whisky in his possession for the purpose of sale. Appellant sold the witness the whisky to drink and he did drink it; he was not acting as agent for any one and appellant did not sell him the whisky to sell to another to carry into local option territory to sell.

It is insisted for appellant that the indictment and evidence were not sufficient to sustain the conviction because it was not alleged nor proved that he had whisky in his possession for the purpose of furnishing or selling it to another for the purpose of resale in local option territory. In support of this contention appellant relies upon the case of Sizemore v. Commonwealth, 140 Ky., 388. While one or two expressions in that opinion may tend to support appellant's contention, it was not intended to hold in that case that in order to convict a person under section 2557b, Kentucky Statutes, for the offense of having in one's possession spirituous, vinous and malt liquors for the purpose of selling them in any territory where the local option law is in force, the indictment should charge and the proof show that defendant had such liquors in his possession for the purpose of furnishing or selling them to another for the purpose of sale by the latter in local option territory. On the contrary, it has been held in several cases that a person may be punished under sub-section 2 of section 2557b, Kentucky Statutes, if he has in his possession spirituous, vinous or malt liquors for the purpose of selling them himself in local option territory. (Anderson v. Commonwealth, 143 Ky., 87, and King v. Commonwealth, 143 Ky., 125.)

It is next insisted that as appellant is a druggist, he is not liable under the Statutes for having spirituous, vinous or malt liquors in his possession for the purpose of selling them in local option territory. This defense is not available because it was not shown that he had a license authorizing him to sell liquors or that in mak

ing the sale he complied with the provisions of the Statutes requiring a physician's certificate.

Lastly, it is insisted that appellant having been convicted of the offense of selling in local option territory, he cannot be again convicted upon exactly the same evidence for having intoxicating liquors in his possession for the purpose of selling them in local option territory, as two offenses connot be carved out of the same state of facts. Under our Statutes, the selling of spirituous, vinous or malt liquors in local option territory and having in one's possession such liquors for the purpose of selling them in local option territory, are separate and distinct offenses. To prove the first there must be evidence to the effect that a sale was actually made, but to sustain a conviction for the latter offense, proof of an actual sale is not necessary. The defendant's purpose may be shown by proof of the circumstances attending his possession. Thus, it will be seen that an additional element of proof is required to sustain a conviction for the offense of selling in local option territory.

Whether or not the defendant could be convicted of the offense of selling and then of the offense of having in his possession for the purpose of sale the identical whisky which he was charged with selling, is a question we deem unnecessary to decide, for the evidence tends to show that appellant had in his possession for the purpose of sale in local option territory other whisky than that he sold to the prosecuting witness. While the prosecuting witness was unable to say whether or not the bottles he observed upon appellant's shelves contained whisky, he did state that they contained something and were similar in size and appearance to the two bottles which he purchased, and it is by no means probable that the two particular bottles which appellant sold the prosecuting witness were the only ones out of a large number of similar bottles that contained whisky. That he had these bottles of whisky for sale is shown by the fact that he was a groceryman and druggist and had them upon his shelves where he had other things for sale. Disregarding, therefore, the sale of the two particular pints which the prosecuting witness bought and for the sale of which appellant was previously prosecuted and convicted, we conclude that there was sufficient evidence that appellant had in his

Vol. 146-2

possession other whisky for the purpose of selling it in local option territory, to sustain a conviction. Judgment affirmed.

1.

2.

Sidewalk

City of Bloomfield v. Allen.

(Decided December 15, 1911.)

Appeal from Nelson Circuit Court.

Dedication Acceptance.-Where a portion of a property owners' lot has been set aside for a sidewalk and used by the traveling public for that purpose for a period of fifteen years, dedication by the owner and acceptance by the town will be conclusively presumed.

Sidewalk

Dedication-Acceptance.-Where a sidewalk has been used by the traveling public for a number of years, and the town by ordinance orders the construction of a brick pavement, and the property owner in response to the action of the town agrees to, and does construct a gravel sidewalk, such action on the part of the town and property owner will constitute a dedication and acceptance.

MORGAN YEWELL, C. F. ATKINSON and JOHN A. FULTON for appellant.

NAT. W. HALSTEAD, JOHN D. WICKLIFFE, KELLY & CHERRY for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, Commissioner-Reversing.

The town of Bloomfield, a city of the sixth class, through its board of trustees, passed an ordinance directing the building of a sidewalk according to certain specifications therein named, in front of the property of James A. Allen and others. Instead of complying with the ordinance, appellee Allen built a fence across the old sidewalk. Thereupon the town, by its board of trustees, directed that the town marshal remove the fence. This he did. The ordinance provided that, in case any property holder should fail to build the sidewalk as required by the ordinance, the town marshal should proceed to build the same.

Claiming that the ground upon which the town was proceeding to build a sidewalk was his private prop

erty, appellee brought this action to restrain the town and its officers from proceeding in the matter. The town defended on the ground that the sidewalk had been dedicated to the public use, and the dedication accepted by the town. A temporary injunction was granted, and, upon final hearing, the injunction was made permanent. From that judgment the town of Bloomfield appeals.

It appears from the record that, in the year 1881, the Cumberland and Ohio Railroad completed a branch road to the town of Bloomfield. This branch road was afterwards acquired by the Louisville & Nashville Railroad Company, and is now owned and operated by it. The railroad tracks terminated with the Bloomfield and Fairfield turnpike. The depot is situated about four hundred yards from this pike. The railroad company owns a right of way, sixty-six feet in width, extending from the depot to the pike. The western half of this right of way is used by the road for its tracks and switches. The eastern half is used by the public in going to and from the depot. While there was formerly another route to the depot, which passed over Simpson's Creek, a majority of the public no longer use this route, because at certain times in the year it is impassable. The record shows that, perhaps, ninety per cent of the public travel is along the railroad right of way, extending from the Bloomfield and Fairfield turnpike.

Appellee owns two lots which abut on the right of way. One of these lots has a store house on it, and fronts on the pike. Next to this lot is the property of the colored Odd Fellows. Just south of the property of the colored Odd Fellows is the other lot owned by appellee. A portion of these lots and the other lots abutting on the right of way has been used by the traveling public, in going to and from the depot, for twenty-seven or twenty-eight years.

The evidence for appellee is to the effect that he never dedicated that part of his own lot in controversy to the public use. On the contrary, he permitted a man by the name of Huston, who had bought a lot in that vicinity, to build along the lot in question a sidewalk composed of ties and cinders. In doing this, Huston asked his permission and also stated to his vendee that he had made and used the sidewalk merely by the permis

sion of appellee. Several former marshals and other officers of the town of Bloomfield testified that the town had never exercised any control over either that portion of the right of way used by the traveling public, or that portion of the abutting lots used by pedestrians; on the contrary, they did not claim any control over either.

The evidence for appellant is to the effect that, ever since the railroad opened up its right of way to the traveling public, and the other route to the depot was practically abandoned, the public, in large numbers, have used the sidewalk. This use has continued for more than twenty-five years. Prior to 1890 the Davis and Thomas lots originally extended across the railroad right of way, and the then owners built a fence near the east line of the right of way to enclose their lots. At that time the traveling public passed over the Allen lot at the south end, then over the Odd Fellows' lot, then over the vacant lot in controversy along the east edge of the right of way to the Thomas lot; thence around the ends of the Thomas and Davis lots to the depot. When Huston bought the Davis lot, in 1890, he moved his west fence back the full width of the sidewalk. At that time the public was crossing the west end of the Davis lot, the fence being down at each side, leaving the sidewalk clear from the pike to the depot grounds. The sidewalk is now located as it existed over the lots of appellees and the colored Odd Fellows' lot for nearly thirty years, and over the lots of Huston (now Gore) and Davis (now Merrifield) for over sixteen years. The two latter have not only dedicated the sidewalks in front of their lots, but have made gravel walks with substantial curbing. In the year 1906 the colored Odd Fellows' lodge built a brick pavement in front of their lot, in obedience to an ordinance of the town council. At the south end of appellee's store was a plank platform about a foot high and twelve feet in with. There was a pump in this platform, and vehicles were set upon part of it. This platform was also used by the public. Afterwards a gravel walk was substituted for the platform. From this lot to the Huston lot planks and stepping stones were used in muddy places until Huston set his fence back and built his sidewalk. When the railroad was completed into Bloomfield in the year 1881, there was not a house on the east side of the railroad right of way that fronted